SOCIETY OF LLOYD'S v (1) PETER EVERETT WHITE (2) STUART JEFFREY BEAL (3) ROBERT ALLEN BRADSHAW (4) LEWIS VARLEY LUXTON (5) ROBERT GEORGE MARICH (6) NEVIL BASIL PRATT (7) FRANCIS SUSAN PRATT (8) ROSS CLEMENT RADFORD (2000)
QBD Commercial Court (Cresswell J) 3/3/2000
INSURANCE - CONTRACT - INTERNATIONAL - CONFLICT OF LAWS - CIVIL PROCEDURE - ARBITRATION
LLOYD'S NAMES LITIGATION : ANTI-SUIT INJUNCTION : EXCLUSIVE JURISDICTION CLAUSES : ARBITRATION AGREEMENTS : BREACHES : ENGLISH COURTS : AUSTRALIAN COURTS : FOREIGN COURTS : REFERRING DISPUTES : FOREIGN LEGISLATION : PERSONAL JURISDICTION : LLOYD'S LITIGATION : CANADIAN SECURITIES LEGISLATION : PRIVATE INTERNATIONAL LAW
An English court could restrain a party to a contract over whom it had personal jurisdiction from the institution or continuance of proceedings in a foreign court in breach of an exclusive jurisdiction clause, even though the foreign claim was based on breaches of securities legislation which were only justiciable in the overseas jurisdiction.
The claimant ('Lloyd's') sought an interim anti-suit injunction against the defendants to prevent them from pursuing claims against Lloyd's in foreign courts until judgment was given in the continuing proceedings in Society of Lloyd's v Sir William Otho Jaffray (1999) LTL 18/6/99, which was dealing with the allegations of fraud against Lloyd's. The eight defendants were all counter claimants in the Jaffray proceedings (supra) but had also started proceedings (or joined Lloyd's as third party to existing proceedings) in Australia. Each of the defendants had signed a General Undertaking in 1986 or 1987 containing an exclusive jurisdiction clause in favour of the English courts. The Australian court had dismissed Lloyd's applications that the third party proceedings be stayed or dismissed. Amongst other arguments the defendants argued that issues relating to the Australian securities legislation were only justiciable in Australia and therefore this was a good reason not to grant the anti-suit injunction (British Airways Board v Laker Airways Ltd & Ors(1985) 1 AC 58.)
HELD: (1) The following potentially relevant decisions of the English courts were not drawn to the attention of the Australian courts: Ashmore & Ors v Corporation of Lloyd's (No.2) (1992) 2 Lloyd's Rep 620; Lloyd's v Canadian Imperial Bank of Commerce & Ors (1993) 2 Lloyd's Rep 579; Henderson & Ors v Merrett Syndicates Ltd & Ors (1994) 3 All ER 506; Society of Lloyd's v Clementson (1994) TLR 16/11/94; Society of Lloyd's v Leighs & Ors (1997) CLC 1398; Society of Lloyd's v Daly (1998) LTL 1/9/98; Society of Lloyd's v Fraser & Ors (1998) CLC 1630. (2) Further the defendants, in their lawyers' submissions to this court, misstated the effect of the decisions in Daly and Fraser (supra). (3) In Fraser, the CA held that following established principles of English private international law, any invalidity or lack of enforceability of a contract under a foreign law was irrelevant. Furthermore, no question of enforcing any act which would involve infringement of the law of Ontario was involved. Accordingly, the contracts had to be enforced in accordance with English law and the arguments advanced on the Canadian securities legislation did not provide any basis for giving leave to defend and did not provide any basis for giving leave to appeal. This was followed in Daly (supra). (4) Various confidentiality orders made by the court in concurrent proceedings, involving both parties, before the English court should have been drawn to the attention of the judges in Australia. (5) The defendants had not established a good reason for not granting an injunction in the terms sought to restrain a breach of the exclusive jurisdiction clause. It was vexatious and oppressive to pursue the Australian proceedings whilst the Jaffray trial was proceeding, given the nature, extent and complexities of that trial.
Injunction granted, with liberty to apply to vary or set aside.
Michael Brindle QC and Stephen Houseman instructed by Freshfields for Lloyd's. The defendants did not appear and were not represented.
LTL 14/4/2000 : TLR 14/4/2000
Judgment Approved - 27 pages
Document No. AC8001471