Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078(Comm)
A person who brings a claim abroad in flagrant breach of an arbitration or jurisdiction agreement will be subject to an anti-suit injunction almost automatically (The Angelic Grace [1995] 1 Lloyd's Rep 87). Should this approach be applied if the existence of the direct contract between the two parties is in dispute? Mrs Justice Cockerill in the Commercial Court held, that it should. Despite the facts not fitting either of the paradigm quasi-contractual categories for the grant of an anti-suit injunction it was held that the test in The Angelic Grace applied by analogy, such that an (albeit conditional) antisuit injunction should be granted.
Adopting a principled approach, Cockerill J found that the core principle underpinning the granting of quasi-contractual anti-suit injunctions in earlier authorities – that a party may not claim under a substantive contract without also assuming the burden of that contract – equally applied here. As the defendant (NBF) had asserted the existence of a contract in Singapore, NBF should be required to bring a claim consistent with that contract, even if the existence of that contract was in dispute.
Cockerill J's judgment contains a clear examination of the different categories of application for anti-suit injunctions and the applicable rules and principles. Of most interest, however, is the creativity shown by Cockerill J, which finds expression in two facets of the judgment.
First, reliance on broad underlying principle to extend by analogy the ambit of quasicontractual anti-suit injunctions to situations which do not fall neatly within specific existing categories. Practitioners should note that the fact that a client's case does not fit neatly within well-established existing categories should not, without more, be a reason not to apply for an anti-suit injunction.
Second, by making the grant of the anti-suit injunction subject to a (rigorous) condition, the judgment demonstrates the flexibility of the tools the court can employ in this context. In future, if there is an element which may militate against the grant of an injunction, it may pay to temper an application (perhaps by proactively suggesting that the grant of the injunction be made subject to a condition) to increase the likelihood of an injunction being granted.
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