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QUEEN'S BENCH DIVISION (COMMERCIAL COURT) [1995] 2 All ER 278, [1995] 1 Lloyd's Rep 64 HEARING-DATES: 25, 26, 27, 28 October, 1, 2 November, 17 December 1993 17 December 1993 CATCHWORDS: Practice - Stay of proceedings - Foreign cause of action - Interlocutory application - Defendant and third party in English proceedings applying for antisuit injunction to restrain foreign plaintiffs from bringing or pursuing counterclaim as defendants in US proceedings - Whether English court having jurisdiction to grant antisuit injunction against foreign plaintiffs - Principles to be applied by court when determining whether to grant injunction - RSC Ord 16, rr 8, 9, Ord 29, r 1. Practice - Stay of proceedings - Foreign cause of action - Appropriate forum - Application by defendant and third party in English action for antisuit injunction to restrain foreign plaintiffs in English action from pursuing counterclaim as defendants in US action - Whether plaintiffs' counterclaim invading or threatening applicant's right to be sued in country of domicile or other contracting state under international convention - Whether convention applicable to proceedings for antisuit injunction - Whether England appropriate forum for determination of dispute - Civil Jurisdiction and Judgments Act 1982, Sch 1, art 6, Sch 3C, art 6. HEADNOTE: The applicants, an insurance company domiciled in France which carried on business in the London market, were the principal reinsurers in an informal pool of reinsurers engaged in providing pollution or environmental impairment liability insurance to American corporations via 'fronting' or primary insurers in the United States, who provided direct cover locally but who were reinsured (usually as to 100%) by the members of the pool. Although the applicants carried 100% of the primary layer of the reinsurance they retained only 20% and ceded the remainder to other reinsurers who in one case retroceded part of their line. The management of the pool was carried out by the company (the managers) which set up the pool. In four actions commenced in England in 1987 and 1988 the plaintiffs, who were variously excess of loss (XOL) reinsurers, Lloyd's syndicates and insurance and reinsurance companies or representatives of such insurers, sued the managers and in one case the applicants for damages for breach of contract, breach of fiduciary duty, negligence, misrepresentation and/or non-disclosure on the part of the managers in their management of the reinsurance pool, including the underwriting of risks and the handling of claims. In the three actions in which the applicants were not sued direct, the managers joined the applicants as third parties, claiming an indemnity under a written claims handling agreement or contribution in respect of negligent claims handling. In parallel proceedings commenced in Illinois in 1988 a primary insurer in the United States, IIC, who were subsequently also joined as third parties in the English actions, sought reimbursement against certain of the XOL reinsurers in the pool in respect of a claim for $ US19m paid by IIC in satisfaction of a claim relating to environmental impairment at a site in California. The applicants paid their share of that claim and were not sued but certain other reinsurers refused to pay and were sued. The Illinois defendants filed defences and counterclaims in the Illinois action, alleging that IIC and others, including the applicants, had engaged in a conspiracy to defraud the Illinois XOL reinsurers by a fraudulent scheme relating to underwriting by intentionally misleading the Illinois XOL defendants as part of a plan to take money from the insurance pool scheme without regard to prudent insurance operations while passing the risk of loss on to the Illinois XOL reinsurers, which conduct amounted to common law fraud and conspiracy and was contrary to the US Racketeer Influenced and Corrupt Practices Act (RICO), which provided, inter alia, a civil remedy for certain types of business misconduct. IIC applied to add the applicants and the managers as defendants in the Illinois action, and issued third party proceedings against the applicants and the managers arising out of the allegations made by the Illinois XOL reinsurers in their counterclaim. IIC claimed an indemnity against the applicants in respect of all the claims by the Illinois XOL reinsurers against IIC for acts or omissions attributable to the applicants and IIC also claimed indemnities in respect of acts or omissions of the managers on the grounds that they were agents of the applicants. The applicants were also joined as counterdefendants in the Illinois action by the Illinois XOL reinsurers. An appeal by the applicants against their joinder in the Illinois action was pending. In the English actions the applicants applied by interlocutory applications and originating summonses to restrain the plaintiffs from bringing and pursuing the claims against the applicants contained in or represented by their counterclaim or similar claims in the Illinois action except in England and/or France, on the grounds that the applicants' legitimate rights under the Brussels and Lugano Conventions on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (set out in Schs 1 and 3C to the Civil Jurisdiction and Judgments Acts 1982) had been and/or would be invaded by the Illinois proceedings and that the commencement or prosecution of such proceedings was or would be unconscionable and/or oppressive or contrary to the interests of justice. Two foreign plaintiffs, who were Swiss and German nationals, applied by summonses in the English actions for a declaration that, since they were neither domiciled nor resident nor carrying on business in England, the court had no jurisdiction over them in respect of the relief sought by the applicants. The applicants contended (i) that the court had jurisdiction pursuant to RSC Ord 29, r 17 since the applicants, as third parties in the English actions, became a 'party to [the] cause or matter' from the time of service of the third party notices in the English actions and thereby became entitled under Ord 16, rr 8(1)(c) and 9(1) to require any question or issue relating or connected with the original subject matter of the action to be determined as between the applicants and the relevant plaintiffs, (ii) that the court had jurisdiction in relation to the foreign plaintiffs under art 6 (Article 6, so far as material, provides: 'A person domiciled in a Contracting State may also be sued: (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled . . .') of Schs 1 and 3C to the 1982 Act, which provided that a person domiciled in a contracting state could also be sued, where he was one of a number of defendants, in the courts of the place where any one of them was domiciled, since numerous plaintiffs in the relevant actions were domiciled in England and the court had jurisdiction over the foreign plaintiffs as co-defendants to the summonses, (iii) that relief was available under the inherent jurisdiction of the court, and (iv) that in any event, even if a final injunction could not be granted under Ord 29, r 1, the applicants were entitled to an interlocutory antisuit injunction simpliciter because the foreign plaintiffs, by proceeding with their counterclaim (as defendants) in the Illinois action, had invaded the legitimate right of the applicants under the Brussels and Lugano Conventions to be sued only in France, the country of domicile, or in any other contracting state permitted under the conventions within the existing proceedings, and that, since the applicants were obliged to appear in other actions in England, the alternative forum should be England, which was one of the contracting states of the conventions. The applicants further contended that London was the natural forum for the claim raised by the defendants in the Illinois action because of the general insurance expertise in London and the fact that the issues in the English proceedings had been the subject of many years' preparation and that the defendants' counterclaim in Illinois was oppressive, unconscionable and unjust. Held - (1) The court had jurisdiction to grant the injunction sought within the existing actions for the following reasons -- (i) RSC Ord 29, r 1 contemplated that applications for interlocutory injunctions could only be made in actions in respect of which a separate trial inter partes was contemplated and neither the applicants as third party in the proceedings nor the foreign plaintiffs were engaged in a lis inter se wherein the relief was claimed as a matter of substance. However, Ord 29, r 1 was so wide and unqualified that, in principle, a third party could seek interlocutory relief by injunction against a foreign plaintiff on the basis that, by suing in England, the foreign plaintiff had submitted not only to the risk and incidence of a counterclaim but also to any claim against him by a third party provided leave of the court was obtained or sought under Ord 16, rr 8 and 9 for the direct determination of a claim or issue between the plaintiff and the third party; Derby & Co Ltd v Larsson [1976] 1 All ER 401 applied. (ii) Furthermore, the court could, under its wide inherent jurisdiction to prevent injustice to a party before the court, permit a third party to apply in an appropriate case for an antisuit injunction in an action already before the court to which the foreign plaintiff was already a party, thus obviating the need to issue new proceedings by way of originating summons, in order to do what was just and equitable to prevent improper vexation or oppression and/or to do justice between the parties in relation to the trial between them. It would not always be necessary for the third party to apply to the court in the action for a question or issue to be tried directly between the third party and the plaintiff in order to found the third party's rights to apply in the action. The oppression relied on by the applicants arose from the fact that proceedings were already before the English court in the light of, or in relation to which, the pursuance of the foreign suit (as opposed to its litigation in the English proceedings) was said to be vexatious or oppressive, and in those circumstances it was sensible and appropriate that the application should be made in the English proceedings; dictum of Lord Goff in SNI Airospatiale v Lee Kui Jak [1987] 3 All ER 510 at 519 applied. (iii) The form in which an injunction was sought ought not to be determinative of whether the application could be made within the action or had to be made by the commencement of new proceedings. Although the application for an antisuit injunction was final and not interlocutory in form, it nevertheless fell within RSC Ord 29, r 1 because it did not necessarily involve or operate as a final resolution of the parties' rights, since the court would be unlikely to grant relief of a truly final nature as there would be express or implied 'liberty to apply' in the event of a change of circumstances which resulted in that issue being withdrawn from the English court, or if for any other reason the oppression originally complained of were relieved. (2) With regard to the foreign plaintiffs, art 6 of the Brussels and Lugano Conventions applied to proceedings for an antisuit injunction simpliciter, even though that form of relief was peculiar to the United Kingdom, and since many of the defendants to the originating summonses were domiciled in England, each of the foreign plaintiffs fell within art 6(1), because they were each a person domiciled in a contracting state who was sued as one of a number of defendants in the courts for the place where a number of those other defendants were domiciled. Furthermore, there was nothing in art 6 to suggest that it was limited to cases in which there was an assertion of joint liability on the part of the defendants sued or that it was inapplicable to a situation where a number of defendants, whether jointly or severally, were, on the same facts, similarly liable to the remedy sought by the plaintiff to the suit. However, the court had no jurisdiction to grant the antisuit injunction on the grounds that by proceeding with their counterclaims in the Illinois action the foreign plaintiffs had invaded or threatened their right to be sued in accordance with the conventions, since the applicants' right to be sued in accordance with the conventions had not been invaded by the Illinois proceedings; Re Harrods (Buenos Aires) Ltd [1991] 4 All ER 334 applied. (3) Although it was a prerequisite to the granting of an order that England should be the natural forum for the dispute, that was not enough in itself when the effect of the order would be to prohibit or restrict proceedings in a foreign court. The applicant also had to demonstrate unconscionable vexation and oppression and in that context a balance had to be struck between the legitimate interests of the parties. Although the applicants would face in the Illinois proceedings allegations of fraud and claims under RICO which either could not (in the case of RICO) or would not (in the case of fraud, so it was claimed) be made in England, those pleas had not been made in bad faith nor were they doomed to failure. Furthermore, there would inevitably be duplication in the two jurisdictions even if an antisuit injunction was granted, there was no obvious danger of conflicting decisions, the claims in Illinois were not inconsistent with those in England, and, since the plaintiffs were entitled to pursue a cause of action in fraud in the Illinois proceedings, the addition of the RICO claim did not transform a legitimate juridical advantage into a case of unconscionable oppression. In the circumstances the ends of justice did not require, and it would not be appropriate, to grant the applicants the relief they sought. Accordingly, the application for an antisuit injunction would be dismissed; dictum of Parker J in British Airways Board v Laker Airways Ltd [1983] 3 All ER 375 at 389, 391 applied; Spiliada Maritime Corp v Cansulex Ltd, The Spiliada [1986] 3 All ER 843 considered. NOTES: For the general principle governing stay of foreign proceedings, see 8 Halsbury's Laws (4th edn) paras 787-789, and for cases on the subject, see 11(2) Digest (2nd reissue) 523-531, 3185-3217. For jurisdiction under the Brussels and Lugano Conventions, see 8 Halsbury's Laws (4th edn) paras 768A-768B. For the Civil Jurisdiction and Judgments Act 1982, Sch 1, art 6, Sch 3C, art 6, see 11 Halsbury's Statutes (4th edn) (1991 reissue) 1138, 1170. CASES-REF-TO: American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396, [1975] 2 WLR 316, HL. Arkwright Mutual Insurance Co v Bryanston Insurance Co Ltd [1990] 2 All ER 335, [1990] 2 QB 649, [1990] 3 WLR 705. Barclays Bank plc v Homan [1993] BCLC 680, CA. Berisford (S & W) plc v New Hampshire Insurance Co [1990] 2 All ER 321, [1990] 2 QB 631, [1990] 3 WLR 688. British Airways Board v Laker Airways Ltd [1983] 3 All ER 375, [1984] QB 142, [1983] 3 WLR 544, QBD and CA; rvsd in part [1984] 3 All ER 39, [1985] AC 58, [1984] 3 WLR 413, HL. Derby & Co Ltd v Larsson [1976] 1 All ER 401, [1976] 1 WLR 202, CA and HL. Harrods (Buenos Aires) Ltd, Re [1991] 4 All ER 334, [1992] Ch 72, [1991] 3 WLR 397, CA. Kalfelis v Bankhaus Schrvder, Munchmeyer, Hengst & Co Case 189/87 [1988] ECR 5565. Kongress Agentur Hagen GmbH v Zeehaghe BV Case C-365/88 [1990] ECR I-1845. Liberia (Republic) v Gulf Oceanic Inc [1985] 1 Lloyds Rep 539, CA. Midland Bank plc v Laker Airways Ltd [1986] 1 All ER 526, [1986] QB 689, [1986] 2 WLR 707, CA. Owens Bank Ltd v Bracco [1991] 4 All ER 833, [1992] 2 AC 443, [1992] 2 WLR 127, CA; affd [1992] 2 All ER 193, [1992] 2 AC 443, [1992] 2 WLR 621, HL. Po, The [1991] 2 Lloyd's Rep 206, CA. Roby v Corp of Lloyd's (1992) 824 F Supp 336, US DC, NY (Southern District). Siskina (cargo owners) v Distos Cia Naviera SA, The Siskina [1977] 3 All ER 803, [1979] AC 210, [1977] 3 WLR 818, HL. SNI Airospatiale v Lee Kui Jak [1987] 3 All ER 510, [1987] AC 871, [1987] 3 WLR 59, PC. Societe Commerciale de Riassurance v Eras International Ltd [1992] 1 Lloyd's Rep 570, CA. South Carolina Insurance Co v Assurantie Maatschappij 'de Zeven Provincien' NV, South Carolina Insurance Co v Al Ahlia Insurance Co [1986] 3 All ER 487, [1987] AC 24, [1986] 3 WLR 398, HL. Spiliada Maritime Corp v Cansulex Ltd, The Spiliada [1986] 3 All ER 843, [1987] AC 460, [1986] 3 WLR 972, HL. Union Bank of the Middle East Ltd v Clapham (1981) 125 SJ 862, CA. Wendel v Moran (1992) ILBr 579, Ct of Sess (OH). INTRODUCTION: Applications The applicant, Sociiti Commerciale de Riassurance (SCOR), issued, inter alia, summonses in four actions pending in the Commercial Court of the Queen's Bench Division (the Jackson action, the Warrilow action, the Bavarian Re action and the Alpina/Zurich action) seeking against the plaintiff insurers in the four actions an injunction restraining them from bringing or pursuing the claims contained in or represented by their second amended counterclaim in an action in the United States District Court for the Northern District of Illinois (Eastern Division) concerning the liabilities of various insurers, reinsurers and managing companies in relation to a scheme of pollution or environmental impairment insurance. Hannover Re, Bavarian Re and Alpina/Zurich issued summonses for a declaration that the court had no jurisdiction over them in respect of the relief sought by SCOR and an order setting aside the summonses issued by SCOR. The facts are set out in the judgment. COUNSEL: Peter Gross QC and Clifford Gill for SCOR; Conrad Dehn QC and Raymond Cox for Bavarian Re and Alpina/Zurich; Andrew Smith QC and Marcus Smith and Andrew Smith QC and Simon Bryan for the remaining reinsurers. JUDGMENT-READ: Cur adv vult 17 December 1993. The following judgment was delivered. PANEL: POTTER J JUDGMENTBY-1: POTTER J JUDGMENT-1: POTTER J: THE APPLICATIONS These applications by interlocutory and originating summons relate to parallel litigation in the English Commercial Court and in the US District Court for the Northern District of Illinois (Eastern Division) concerning the liabilities of various insurers, reinsurers and managing companies in relation to a scheme of pollution or 'environmental impairment' insurance. The collective title for the large number of actions comprising the English proceedings is 'the Eras EIL actions'. I shall call the US proceedings 'the Illinois action'. The actions in which (and/or in connection with which) these applications are made comprise only some of the Eras EIL actions, namely the English actions in which Sociiti Commerciale de Riassurance (SCOR) is involved as defendant or third party. The applications are as follows. (1) An interlocutory application on summons by SCOR for an injunction in four actions brought by plaintiff reinsurers, namely 1988 folio 3471 (the Jackson action), 1987 folio 791 (the Warrilow action), 1988 folio 2489 (the Bavarian Re action) and 1988 folio 2490 (the Alpina/Zurich action). In each case the injunction claimed is an order that the plaintiffs (who are involved also in the Illinois action as defendants and/or counterclaimants) be restrained from bringing or pursuing the claims contained in or represented by their second amended counterclaim in the Illinois action, or any similar claims, anywhere other than in England and/or in France on the grounds that: '(a) SCOR has legitimate rights under the Civil Jurisdiction and Judgments Acts 1982 and 1991 which are invaded and/or would be invaded by such proceedings and such proceedings are contrary to English Statute and European law; further or alternatively (b) The commencement and/or prosecution of such proceedings is or would be unconscionable and/or oppressive: and/or the interests and/or ends of justice require that the plaintiffs be restrained from commencing and/or prosecuting such proceedings.' I have granted leave for the summons to be amended in two respects. First, to make clear that the relief sought is limited to the plaintiffs' claims in Illinois against SCOR, that limitation not having been originally included; second, to correct certain errors appearing in schedule 1 to the summons which listed the parties (called 'the schedule 1 plaintiffs') against whom the relief was sought. The parties against whom the relief is now sought are listed in a document headed 'schedule 3'. I also note that Scan Reinsurance Co Ltd (Scan Re) is in provisional liquidation. The leave required to be obtained from the Companies Court for the applications to proceed against Scan Re had not been obtained at the outset of the hearing before me, but was obtained in the course of the hearing. (2) An application on summons by Bavarian Re and Alpina/Zurich (two of the plaintiffs sought to be restrained by SCOR under (1) above) for: '1. A declaration that in the circumstances of the case the court has no jurisdiction over the applicants in respect of the relief or remedies sought by SCOR in their summons at (1) above. 2. An order setting aside that summons and/or service thereof.' (Zurich, as SCOR admit, had been joined in error, as it was not a counterclaimant in Illinois. It has been deleted from schedule 3. It therefore does not pursue its summons save as to costs.) (3) An originating summons by SCOR seeking to restrain (as defendants to the summons) the plaintiffs in the Jackson, Warrilow, Bavarian Re and Alpina/Zurich actions in the same terms as in (1) above. (4) Applications on summons by Bavarian Re and Alpina for declarations in the same terms as in (2) above in respect of the originating summons in (3) above. (5) An application on summons by Hannover Re for similar relief. (6) Two originating summonses by SCOR in two Eras EIL actions for an injunction restraining syndicate 661 (Edmunds) by the first summons and syndicates 231 (Jervois), 605 (Holloway) and 518 (Salter) by the second summons in similar terms to (1) above. Pending the hearing of these applications, the position of SCOR has been protected, so far as the Illinois action is concerned, pursuant to, and to the extent of, an order of Phillips J dated 14 January 1993 to the effect that: 'The schedule 1 plaintiffs be restrained until further order from commencing and/or pursuing any application to any court in the United States of America or elsewhere seeking to restrain SCOR, or otherwise seeking to restrain SCOR, from making the application set out in the [summons in (1) above]' For convenience, I shall refer to all the plaintiffs sought to be restrained by SCOR as 'the plaintiffs', save where it is necessary to identify plaintiffs individually or separately affected by a particular aspect of this judgment. THE BACKGROUND The Eras EIL actions have for some years been the subject of vigorous interlocutory disputes, including a 13-day hearing before the Court of Appeal in relation to an order of Waller J which, inter alia, gave leave to the defendants in various of the Eras EIL actions to serve third party proceedings upon various US parties out of the jurisdiction (see Sociiti Commerciale de Riassurance v Eras International Ltd [1992] 1 Lloyd's Rep 570). In the course of those proceedings the history and background to the Eras EIL actions was given in the judgment of Mustill LJ. I shall not repeat it in extenso. I should add that the history of the matter is extremely complex and that many of its aspects are hotly in dispute. What follows is a brief and simplified account according to the parties' pleadings, intended to set the scene for the points of law argued before me. It is far from complete and may well prove in some respects to be incorrect. The Eras EIL actions relate to the organisation and operation of a pool set up on the initiative of a number of companies centred in the United Kingdom, collectively referred to as 'Clarksons' in this judgment. The purpose of the pool was to provide 'pollution insurance' to American corporations, the letters EIL standing for 'environmental impairment liability'. The scheme was 'reinsurance-led', the commercial centre of gravity reposing in a group of reinsurers. Direct cover was written locally in the United States by 'fronting' insurers, their services being necessary to comply with American insurance regulations. However, they were reinsured (usually as to 100%) by the reinsuring members of a pool. Although the fronting companies received and/or obtained the business, collected the initial premiums and their commission, received any initial claims from the insured and performed some paperwork, in general the risk-rating, underwriting and subsequent claims handling was dealt with by the participants in the pool, being performed on their behalf by Clarksons or others appointed and/or delegated by Clarksons to act for them. The US pool was originally led by two reinsurers but one dropped out, leaving SCOR as the principal player in the pool. It appears that, despite a complicated network of relationships which grew up, there was no formal pool agreement defining the various responsibilities of those concerned, nor any comprehensive pool management agreement which made explicit the duties of Clarksons and their delegates towards the members of the pool. As already indicated, various US fronting companies were selected by the reinsurers to carry the direct insurance with the US clients. However, the only such company to which it is necessary to refer at this stage is International Insurance Co (IIC), an Illinois company based in Chicago which was on risk for the three policy years with which the plaintiffs' Eras EIL actions are concerned, namely 1981, 1982 and 1983. IIC is the plaintiff in the Illinois action. In response to IIC's claims therein, counterclaims have been filed by the Illinois defendants which give rise to the SCOR applications before me. As further background, it should be explained that not only did Clarksons, as managers of the pool, select IIC as a fronting company, but they also selected the insured and decided on what terms and at what rates their EIL risks would be accepted. So far as the Eras EIL actions are concerned, it appears to be common ground that neither the fronting companies nor the reinsurers played an active part in this. However, that position is not common ground in the Illinois action, where the case being put by the excess of loss reinsurers is that Clarksons, in selecting risks, deciding on terms and claims handling, were acting as IIC's agents. That is one of the principal issues before the Illinois court. For most of the life of the pool, IIC were reinsured 100% by SCOR. Only in the policy year 1983 did IIC retain 7% for its own account. In the years 1981, 1982 and 1983 the managers of the pool provided additional capacity by arranging two layers of excess loss reinsurance with various companies and syndicates. Although SCOR carried 100% of the primary layer of reinsurance (save in 1983 when it carried 85%), it retained only 20% of the excess, retroceding the remainder. In practice, the arrangements involved two chains of insurance. As to the primary layer, the chain ran: client, IIC, SCOR, retrocessionaire, reretrocessionaire. For the excess layers the chain was: client, IIC, excess layer reinsurer. So far as the primary layer insurance is concerned there was a connection between SCOR (and hence, at further removes, the retrocessionaires and reretrocessionaires) and Clarksons as managers, they being in express contractual relations. However, there is doubt as to whether excess of loss reinsurers were members of the full pool. Having introduced SCOR, the Eras EIL plaintiffs, Clarksons and IIC, it is also necessary to mention that there were also involved (as appointees or delegates of Clarksons) in the planning and management of the pool in the US, a group of US companies called Howdens and a further participant, The London Agency Inc (TLA), an affiliate of IIC, which companies are also defendants or third parties in various of the Eras EIL actions. THE ENGLISH ACTIONS The relevant English actions in which SCOR is concerned are: The Jackson action In this action, commenced by writ dated 15 December 1988, the representative plaintiffs (who are excess of loss (XOL) reinsurers on the first and/or second excess layers in the EIL programme for the 1983 year) sue on behalf of a long list of Lloyd's syndicates and insurance companies which include, inter alios, Hannover Re, the People's Insurance Co of China (PICC) and Nisshin Fire and Marine (Nisshin). The defendants are Clarksons. The claim is for damages for breach of contract and/or breach of fiduciary duty and/or negligence on the part of Clarksons in their management of the EIL reinsurance pool, including the underwriting of risks and the handling of claims. The breaches alleged broadly cover failure to obtain adequate information about prospective risks, failing carefully to assess the insurance risk presented by prospective assureds (in particular by obtaining proper technical surveys), failing to arrange or implement a proper system for investigating, assessing and handling claims by assureds, and arranging for the issuing of ElL policies outside the authority pursuant to the excess slips. Complaint is made in relation to a number of risks/policy renewals, including in particular a policy issued and renewed by IIC to Smith Kline Beckman Inc (SKB) in the United States. In 1990 Clarksons issued third party proceedings against Howdens, TLA, IIC (also against Sedgwicks, to whose role I need not refer), and SCOR. The relief claimed against SCOR is for indemnity under a written claims handling agreement dated 3 April 1987 and for contribution in respect of negligent claims handling for the 1983 year and, separately, of the SKB claim. The Warrilow action In this action, commenced by writ dated 6 November 1987, the representative plaintiffs (suing on behalf of various Lloyd's syndicates) and two reinsurance companies sue SCOR as defendants as well as Clarksons. The plaintiffs (who were retrocessionaires of SCOR in the 1981, 1982 and/or 1983 years) sue SCOR for material non-disclosure and/or innocent misrepresentation by SCOR in relation to the making of the retrocession agreements for the primary layer of insurance in 1980 and for a declaration that the retrocession indorsement to which all but the first plaintiffs subscribed in 1983 is void for mistake. As against Clarksons, the plaintiffs claim damages for negligence and/or breach of fiduciary duty and/or breach of contract and/or misrepresentation and/or non-disclosure in relation to their part in the broking of the retrocessions already mentioned and on more general grounds. Howdens, TLA, IIC and Sedgwicks have been joined as third parties in that action. The Bavarian Re action In this action, commenced by writ dated 6 August 1987, Bavarian Re sue Clarksons for damages for breach of contract and/or breach of fiduciary duty and/or negligence in relation to their placement of reinsurances, underwriting management and claims handling. Clarksons subsequently joined as third parties Howdens, TLA, IIC, Sedgwicks and SCOR. The third party claim against SCOR is for 1987 claims handling indemnity pursuant to the written agreement. Issues are raised specifically in this action in relation to insurance claims made by SKB and Waste Management Inc (as to which see further below). The Alpina/Zurich action In this action, commenced by writ dated 6 August 1987, Alpina Re and Zurich Re sue Clarksons on similar grounds to those in the Bavarian Re action above and similar third party claims have been raised by Clarksons, making a similar claim against SCOR. The Illinois action In March 1988, IIC, as primary insurer, paid $ US19m in satisfaction of a claim made by SKB for its alleged loss relating to environmental impairment arising out of a site in Porterville, California. IIC claimed under its EIL insurance arrangements against its reinsurers, including the XOL reinsurers. As one of those reinsurers, SCOR paid its share of the SKB claim, but other reinsurers refused to pay. On 18 November 1988 IIC commenced the Illinois action for reimbursement against all of its XOL reinsurers other than SCOR, Munich Re and Nisshin. In that action, IIC claimed that the circumstances of non-payment amounted to 'bad faith conduct' entitling IIC to claim punitive damages. On 21 November 1988 the XOL reinsurers sought to circumvent the Illinois action by bringing their own action in the Commercial Court for a negative declaration of non-liability and they obtained ex parte leave to serve IIC out of the jurisdiction for that purpose. On 21 March 1989 the XOL reinsurers issued a motion in the Illinois action to dismiss IIC's action for forum non conveniens. On 15 June 1989 in the Commercial Court Saville J, on the application of IIC, set aside service of the XOL reinsurers' writ for a negative declaration, on the grounds that Illinois rather than England was the appropriate forum, following which (in September 1989) the XOL reinsurers withdrew their motion to dismiss in the Illinois action. In March/April 1990 the Illinois XOL defendants (other than Nisshin) filed affirmative defences and counterclaims, alleging that IIC was in breach of various conditions in the reinsurance contracts and in particular alleging bad claims handling by IIC through Clarksons in the same respect as in their English actions against Clarksons. On 8 June 1990 IIC filed an amended and supplemental complaint. On 27 July 1990 the Illinois XOL defendants (other than Nisshin) filed affirmative defences to the amended and supplemental complaint and, in addition, a first amended counterclaim. This was brought only against IIC, but it claimed declaratory relief to avoid liability for any claims submitted by IIC under any of its EIL policies and/or damages against IIC on the basis, inter alia, that IIC and others, including SCOR, had engaged in a conspiracy to defraud the Illinois XOL reinsurers by a fraudulent scheme relating to underwriting. The claims were based on the contention that IIC, in agreement with SCOR and others, intentionally misled the Illinois XOL defendants as part of a plan to take money from the programme without regard to prudent insurance operations while passing the risk of loss on to the Illinois XOL reinsurers. The counterclaim was based on common law fraud and conspiracy and the Racketeer Influenced and Corrupt Practices Act (RICO), a statute adopted by the US Congress to provide, inter alia, a civil remedy for certain types of business misconduct. On 5 October 1990 IIC filed a motion to strike out the affirmative defences and to dismiss the counterclaims. However, whilst these motions were successful in respect of various aspects of the counterclaim, in September 1991 Magistrate Judge Weisberg delivered an opinion in which he concluded that there were no grounds for dismissing the central fraud/RICO allegation, confirming this opinion in December 1991 (having been requested by IIC to reconsider it). The opinions were subsequently adopted and confirmed by Judge Lindberg on 30 December 1992. Meanwhile, on 22 February 1991 IIC filed (a) a second amended and supplemental complaint in which it added SCOR and Clarksons as defendants, and (b) third party proceedings against SCOR and Clarksons arising out of the allegations made by the Illinois XOL reinsurers in their counterclaim. Indemnity was claimed against SCOR in respect of all the claims by the Illinois XOL reinsurers against IIC for acts or omissions attributable to SCOR and IIC also claimed indemnities in respect of acts or omissions of Clarksons on the grounds that Clarksons were agents of SCOR. In June 1991 Clarksons (as defendants to IIC's complaint and third party complaint) applied for dismissal or stay of the proceedings on grounds that there was a binding arbitration agreement with IIC. In June 1991 SCOR also filed a motion to stay IIC's claims pending arbitration and, further, to dismiss the second amended supplemental complaint on the grounds that there were proceedings in London (the Eras EIL actions) which covered the same matters (lis alibi pendens). On 20 December 1991 Magistrate Judge Weisberg (a) granted a stay of IIC's claims against Clarksons pending arbitration, (b) granted a stay on a number of IIC's claims against SCOR, but (c) ruled against SCOR's motion to dismiss on grounds of lis alibi pendens, and (d) ruled that IIC's count alleging SCOR's responsibility for the acts of Clarksons should proceed in court. On 29 April 1992 he confirmed those rulings on SCOR's motion to reconsider. In March 1992 Nisshin applied to intervene in the Illinois action. On 14 March 1992 the Illinois XOL reinsurers (save for Alpina and Bavarian Re) filed a second amended counterclaim which, inter alia, added SCOR as a counterdefendant. In that counterclaim the Illinois XOL reinsurers (besides remedying technical difficulties found by Magistrate Judge Weisberg to have existed in their earlier pleading) (i) revised their case against IIC for fraudulent underwriting (count 4), (ii) claimed against IIC and SCOR for fraudulently failing to disclose to reinsurers in 1983 imprudent underwriting practices (count 5), (iii) extended to SCOR their claim against IIC under RICO in relation to an underwriting scheme in 1982/4 and a claims handling scheme concerning the EIL programme in 1982 and 1983 (counts 8 to 11). (The Illinois court delayed deciding when SCOR ought to plead to the second amended counterclaim till it had decided IIC's motion to dismiss the counterclaim. This has since occurred. SCOR is now liable (but has not yet been required) to plead to the second amended counterclaim.) On 11 June 1992 Alpina and Bavarian Re (whose activities in the litigation as against SCOR had been the subject of a moratorium during the period February 1990 to May 1992) filed a second amended counterclaim in similar terms. On 30 December 1992 Judge Lindberg (who had previously adopted the decision of Magistrate Judge Weisberg so far as Clarksons were concerned) made an order confirming his decisions of 20 December 1991 so far as SCOR was concerned. On 25 January 1993 SCOR appealed that order. On 26 October 1993 oral argument was heard in the appeal. A decision is awaited. It should be noted that the decisions appealed against concern the complaints of IIC against SCOR both by way of direct complaint and in third party proceedings in which allegations of fraud and conspiracy are made. They do not concern the second amended counterclaim of 14 March 1992 in which the plaintiffs make their allegations direct against SCOR. That pleading has been filed now for some 18 months in the Illinois action without being the subject of any application for dismissal or plea of forum non conveniens, SCOR preferring to proceed in this court under the summonses taken out in January 1993 and now before me. Before leaving this summary of the Illinois action, it is of relevance to note that SCOR is party to at least two further actions in Illinois: (1) a claim brought by Waste Management Inc, another of the EIL insureds. The case was filed in October 1987, SCOR being added as a defendant in 1991, the latest form of the claim being embodied in a second amended complaint against IIC and SCOR, in which it is contended that SCOR together with IIC and Clarksons was involved in a 'joint venture' in connection with the Eras EIL programme (a similar concept to that founding the conspiracy claims made in the Illinois action). Wide-ranging allegations are made in relation to SCOR's involvement in the management, control and direction of the EIL pool. The claim is for declaratory relief and indemnity damages in respect of a number of actions against IIC and for punitive damages. (2) Proceedings commenced by IIC in the Chancery Division of the Circuit Court of Cook County, Illinois. In this action, IIC has sued the Illinois XOL defendants and Clarksons as well as SCOR. The claim is for a declaration that SCOR and the Illinois XOL defendants are liable to pay on the claim of one of the EIL insureds, Montrose (a claim referred to in the Eras EIL actions as 'the Stauffer/Montrose Torrance claim'). SCOR is currently seeking to have the case against it dismissed. JURISDICTION In this case Mr Gross QC on behalf of SCOR accepts (and it is not in issue between the parties) that, in order to support SCOR's application for relief, it must be demonstrated that the foreign plaintiffs, by proceeding with their counterclaim in the Illinois action (i) have invaded or threatened to invade a legal or equitable right of SCOR for the enforcement of which SCOR is amenable to the jurisdiction of the court, or (ii) have behaved or threatened to behave in a manner which is unconscionable (South Carolina Insurance Co v Assurantie Maatschappij 'de Zeven Provincien' NV [1986] 3 All ER 487 at 496, [1987] AC 24 at 40 per Lord Brandon) and/or which renders pursuit of the Illinois action vexatious or oppressive so that the ends of justice require that the foreign plaintiffs be prevented from pursuing their counterclaim (SNI Airospatiale v Lee Kui Jak [1987] 3 All ER 510 at 522, [1987] AC 871 at 896 per Lord Goff). However, in bringing these applications SCOR faces a number of preliminary problems in relation to the court's jurisdiction. First, the question whether the relief can properly be sought as an interlocutory application within the existing Eras EIL proceedings or ought properly to be sought by way of originating summons. It is in recognition of this problem that the plaintiffs' originating summons under (3) above was issued. Second, if it be the position that fresh proceedings by way of originating summons are necessary, then, in relation to those plaintiffs which are neither domiciled nor resident nor carrying on business in England, the question arises whether, by commencing the English actions, they have submitted to the jurisdiction of this court for the purpose of those originating summonses, whether they are otherwise subject to the court's jurisdiction, or whether they are outside the jurisdiction of the English court for the purposes of SCOR's application and/or for the enforcement of an injunction which acts in personam. In this connection, Bavarian Re and Alpina have issued their summonses to set aside under (2) and (4) above and Hannover Re its similar summons under (5) above, which summonses have been issued on the basis of a reservation as to the question of jurisdiction. I shall call those three parties collectively 'the foreign plaintiffs'. I now turn to deal with the problems raised in the context of the grounds advanced by Mr Gross on behalf of SCOR. Mr Gross has submitted that the court has jurisdiction to grant the relief claimed on one or more of the following three grounds. (1) Pursuant to RSC Ord 29, r 1(1), the text of which provides: 'An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be.' Mr Gross submits it is plain that SCOR, as third party in the relevant English actions, became party to those actions from the time of service of the relevant third party notices (RSC Ord 16, r 1(3)) and thereby became entitled to require any question or issue relating to or connected with the original subject matter of the action to be determined as between SCOR and the relevant plaintiffs (Ord 16, rr 8(1)(c) and 9(1)). (2) Further or alternatively, Mr Gross relies upon the inherent jurisdiction of the court to regulate its own proceedings in relation to the parties presently before it in the English actions. He submits that if, for any reason, the provisions of RSC Ord 29, r 1 and/or Ord 16 are inappropriate for his purpose, then this is a case where the inherent jurisdiction of the court can and should fill the gap to make available the relief sought. (3) Finally, Mr Gross submits that, even if a final injunction cannot be granted within the existing Eras EIL proceedings, he is entitled in any event to an appropriate injunction pursuant to the originating process he has issued against the same plaintiffs for reasons to which I turn more fully below. The arguments for the plaintiffs are as follows. By way of preliminary, Mr Andrew Smith QC, who appears, inter alios, for Lloyd's syndicates 109 and 661, which have been included in SCOR's schedule, points out that, while both syndicates are parties to the Illinois action, syndicate 109 is not a party to the Eras EIL proceedings at all and is named only as a defendant to SCOR's originating summons at (3) above, and that syndicate 661, although a plaintiff in the Eras EIL actions, is not a party to any action to which SCOR is a party or seeks interlocutory relief; it is similarly named as a defendant to the first originating summons at (6) above. Apart from the special position of those syndicates, the plaintiffs submit: (1) That Ord 29, r 1 cannot assist SCOR because it relates to interlocutory injunctions only, both by reason of the heading to Ord 29 ('Interlocutory Injunctions, Interim Preservation of Property, Interim Payments, etc') and because its terms contemplate a cause or matter in respect of which there will be a separate trial. The usual purpose of such an injunction is to preserve the status quo until the rights of the parties have been determined in the action, the principles applicable to the grant of such interlocutory injunctions being those explained by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396 ('serious question to be tried'/'balance of convenience'). On the other hand, the principles applicable to the grant of a final injunction are proof of the invasion of the applicant's right and the entitlement of the applicant to protection, on the basis of a final determination of the rights of the parties inter se. (2) It is said that the inherent jurisdiction of the court to regulate its own proceedings cannot, or at any rate should not, be invoked to cover a position not contemplated or intended by the Rules of the Supreme Court which, under Ord 29, r 1, anticipate only the grant of an injunction as between persons who are directly parties to a 'lis' between themselves, and do not contemplate an application for an injunction at the suit of a third party brought in by a defendant in derivative proceedings, which for this purpose are to be regarded as a separate 'lis'. It is contended that the fact that the foreign plaintiffs have issued proceedings in England and have submitted to the jurisdiction of the English court for the purposes of their claims against Clarksons does not mean that they have submitted to that jurisdiction for any and all proceedings to do with the Eras EIL scheme, or in particular have subjected themselves to the risk of a claim by SCOR as third party for an injunction such as that sought here. It should be noted that this is a point of practical importance only to the foreign plaintiffs and to Nisshin and PICC because (a) the English-based plaintiffs in the Warrilow and Jackson actions are amenable to the jurisdiction as persons resident or carrying on business within the jurisdiction, (b) the retrocession plaintiffs who sue in the Warrilow action have in fact sued SCOR as defendants (in respect of alleged non-disclosure and innocent misrepresentation in the broking by SCOR of their retrocessions in the primary layer), (c) in any event, whilst the English-based plaintiffs argue under (1) above that the proper procedure for SCOR is to go by way of originating summons, they do not contest the jurisdiction of the court over them in that context, unlike the foreign plaintiffs. (I shall cease to refer separately to the position of Nisshin and PICC till the end of this section of my judgment.) In the case of each of the foreign plaintiffs, they point out that they brought their actions against Clarksons only as defendants, who then joined SCOR in third party proceedings. The foreign plaintiffs accept that, by issuing proceedings, they have submitted to the jurisdiction of the English court for all purposes connected with their claim against Clarksons, thus subjecting themselves to the risk of a counterclaim by Clarksons (and any relief associated therewith) as an incident of such litigation (see Derby & Co Ltd v Larsson [1976] 1 All ER 401 at 418, [1976] 1 WLR 202 at 206 and Republic of Liberia v Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539 at 544, 547). However, it is argued that such a submission was not made, and subjection should not be inferred, to the risk of a claim by SCOR for an injunction of the type sought here. It is submitted that in so far as a party suing in the jurisdiction is to be regarded as subjecting himself to the risk of relief being claimed against him, such a risk does not extend beyond subjection to the procedures expressly provided for in the Rules of the Supreme Court. If that is correct, then the only circumstances in which SCOR may seek to claim against the foreign plaintiffs are those set out in Ord 16, rr 1(3), 8 and 9 which, it is submitted, describe the limits of the court's jurisdiction to entertain claims by SCOR against the foreign plaintiffs in their individual actions. It is pointed out that SCOR's claim is not the assertion of a right in respect of its defence against any claim made against it in the third party notice (see Ord 16, r 1(3)); nor does SCOR make a claim which is substantially the same as any relief or remedy claimed by the foreign plaintiffs or require that any question or issue relating to or connected with the original subject matter of the action should be determined not only between SCOR and the foreign plaintiffs but also between either or both of them and some other party to the actions (see the combined effect of rr 8 and 9). The foreign plaintiffs submit that to invoke the inherent jurisdiction of the court to justify an interlocutory application which is not made in connection with any issue being litigated as between SCOR and the foreign plaintiffs is not a necessary or proper supplement to what the rules provide, but a means for SCOR to circumvent the requirements of the court in relation to the exercise of its jurisdiction over a foreign party against whom a plaintiff asserts a substantive cause of action (see Siskina (cargo owners) v Distos Cia Naviera SA, The Siskina [1977] 3 All ER 803, [1979] AC 210). My decision as to SCOR's grounds (1) and (2) is as follows. (1) So far as Ord 29, r 1 is concerned, it seems to me clear that the rule contemplates applications for interlocutory injunctions only in actions in respect of which a separate trial inter partes is contemplated. Reliance was placed by Mr Gross upon those types of case (eg labour disputes) where it is acknowledged and accepted by both parties and/or recognised by the court that the decision upon an application under Ord 29, r 1 will decide the case. However, those cases do not assist him in showing the court has jurisdiction (other than by consent) to grant a final injunction upon an interlocutory application. That is because the injunction in such actions is in fact granted in interim form 'till trial or further order', even though no trial is expected to take place. Further, it is a point which is not cured simply by reference to the terms of Ord 16, given that neither SCOR as third party in the proceedings, nor the foreign plaintiffs, are engaged in a lis inter se wherein the relief is claimed as a matter of substance and the application is made simply for interim presentation or disposition of the parties' rights pending trial of the substantive issue. It might be open to SCOR to seek to cure that position under the provisions of Ord 16, rr 8 and 9, but they have not sought to do so as they do not wish to assist or encourage the plaintiffs to litigate the question of fraud or conspiracy in the English actions. I say it might be open to SCOR to do so because I accept SCOR's submission that the wording of Ord 29, r 1 is so wide and unqualified that, in principle, a third party may seek interlocutory relief by injunction against a foreign plaintiff on the basis that, by suing in England, the latter has submitted not only to the risk and incidence of a counterclaim but also to any claim against him by a third party, provided that leave of the court has been obtained or is sought pursuant to the provisions of Ord 16 for the direct determination of a claim or issue as between the plaintiff and third party. That conclusion is wider in effect than the decisions in Derby & Co Ltd v Larrson [1976] 1 All ER 401, [1976] 1 WLR 202 and Republic of Liberia v Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539 (which concerned matters of counterclaim brought by defendants), but in my view it is consistent with the reasoning therein (see also Union Bank of the Middle East Ltd v Clapham (1981) 125 SJ 862). However, that still leaves unanswered the point taken on the rules by the foreign plaintiffs that the remedy sought is final in form, not interlocutory, and no claim or application for that final relief has been made by SCOR against the plaintiffs (save by way of SCOR's originating summonses). (2) In that respect, I accept the submission of SCOR that the court under its inherent jurisdiction may, in an appropriate case, permit a third party to apply for an antisuit injunction within the confines of an existing action to which a foreign plaintiff is already party, thus obviating the need to issue new proceedings by way of originating summons. I do not consider that for that purpose it should in all cases be necessary for the third party also to apply to the court in the action for a question or issue to be tried directly between the third party and the plaintiff (in this case the question of fraud or conspiracy) in order to found the third parties' right to apply in the action. Mr Gross referred to 37 Halsbury's Laws (4th edn) para 14, which describes the principal features of the court's inherent jurisdiction. The passages emphasised by Mr Gross were those describing such jurisdiction as: '. . . that which enables [the court] to fulfil itself, properly and effectively, as a court of law . . . it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise (1) control over process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process . . . In sum . . . a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.' Adopting that passage, Mr Gross says that the ability of the court to grant an antisuit injunction where appropriate on the application of one party to an action already before the court against any other party to that action is part of the court's inherent jurisdiction (a) to exercise control over process by preventing abuse of process and/or by compelling the observance of process or, more widely, (b) to do what is just and equitable to prevent improper vexation or oppression and/or to do justice between the parties in relation to the trial between them. I am hesitant as to (a), because the process or proceedings referred to in the text quoted are plainly the proceedings before the English court, whereas the effect of the injunction sought would be to control or regulate the foreign proceedings. However, I accept the wider terms of Mr Gross's submission under (b). In the South Carolina case [1986] 3 All ER 487 at 499, [1987] AC 24 at 44-45 Lord Goff stated: 'In my opinion, restraint of proceedings in a foreign forum simply provides one example of circumstances in which, in the interests of justice, the power to grant an injunction may be exercised . . . I am at present inclined to the opinion that an injunction has generally been granted in such circumstances for the purpose of protecting the English jurisdiction . . .' In SNI Airospatiale v Lee Kui Jak [1987] 3 All ER 510 at 519, [1987] AC 871 at 893 he expressed the view that the latter opinion was 'too narrow a view' and he dealt with the power to grant an antisuit injunction in the wider terms of 'vexation/oppression' and 'the ends of justice', based on his review of the authorities. It seems to me that the effect of that review was to show that the power may properly be put on a wider basis than the court's inherent jurisdiction to prevent procedural injustice, being a general power of the court to prevent injustice to a party before it, including the power to restrain foreign proceedings where the foreign forum is the sole, rather than alternative, forum for the proceedings brought or threatened (see British Airways Board v Laker Airways Ltd [1984] 3 All ER 39, [1985] AC 58 and Midland Bank plc v Laker Airways Ltd [1986] 1 All ER 526, [1986] QB 689). Nonetheless, in his seminal article 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23 at 43-44, I H Jacob included under the inherent jurisdiction of the court to prevent abuse of process: 'power to prevent a litigant from taking multiple . . . proceedings which are frivolous or vexatious or oppressive . . . [including in the case of lis alibi pendens] . . . summary power to stay the action in this country or to restrain a party from further proceedings in the foreign country.' Further, in Dicey and Morris on the Conflict of Laws (12th edn, 1993) vol 1, p 397, in commenting on r 31(1), which states: 'English courts have jurisdiction, whenever it is necessary to prevent injustice . . . to restrain the institution or continuance of proceedings in foreign courts', the editors describe it as 'an inherent jurisdiction, reinforced by statute' (namely the Supreme Court Act 1981, s 49(3), and the Civil Jurisdiction and Judgments Act 1982, s 49). It remains the position that, leaving aside a 'sole forum' case, the oppression relied on by the applicant in a case such as this springs from the fact that proceedings are already before the English court in the light of, or in relation to which, the pursuance of the foreign suit (as opposed to its litigation in the English proceedings) is said to be vexatious or oppressive and the court is invited to exercise its summary power. That being so, it seems to me sensible and appropriate that the application should be made in those very proceedings. I would add that, if those proceedings are (as I consider) properly regarded as a single cause or matter (consisting of a main action plus third party proceedings), then arguments as to the precise relationship of the parties and as to whether or not the issues before the court yet involve a 'lis' between them in some more restricted sense, are it seems to me matters appropriate (and important) to be considered by the court in relation to the exercise of its discretion whether or not to grant the relief sought and/or as going to the terms on which relief is granted, rather than as going to the jurisdiction of the court, to which the respondent is already amenable by reason of his participation as plaintiff in the action. As it was put by Oliver LJ in Republic of Liberia v Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539 at 544: 'by becoming a litigant within the jurisdiction, a plaintiff submits himself to the incidents of such litigation, including liability to a counterclaim.' (My emphasis.) It seems to me that such incidents are not merely those expressly provided for in the Rules of the Supreme Court, but extend to such powers as the court may see fit to exercise under its inherent jurisdiction in that litigation. As to the question of the form of the injunction sought, although an application of this kind is likely in form to be for an injunction unlimited as to time, it does not necessarily involve or operate as a final resolution of the parties' rights in the sense in which that expression is habitually used in civil disputes. Certainly, in a case where an antisuit injunction is applied for in relation to proceedings in which the issue sought to be litigated abroad is already before the English court for determination, the court would be unlikely to grant relief of a truly final nature in that there would be express or implied 'liberty to apply' in the event of a change of circumstances which resulted in that issue being withdrawn from the English court, or whereby, for any other reason, the oppression originally complained of were relieved. Thus it seems to me that the form in which the injunction is sought should not be determinative of the question of whether or not the application (which is for a summary remedy) may be made within the action or must be made by commencement of new proceedings. Accordingly, I conclude that the court has jurisdiction within the existing actions under summons (1) in respect of the relief applied for. (It is necessary to add the rider that such conclusion does not extend to cover the position of syndicates 109 and 661, for the reasons pointed out by Mr Smith in his preliminary argument, to which I have referred above. However, as already indicated, since they are respondents to the originating summons who are domiciled in England, the court has jurisdiction over them in that respect.) If I am wrong in my above conclusion as to jurisdiction, it is necessary for SCOR to satisfy me that there is jurisdiction over the foreign plaintiffs (the other plaintiffs concede such jurisdiction) in respect of the originating summonses to which I now turn. THE ORIGINATING SUMMONSES Before dealing with the further problem of jurisdiction facing SCOR in relation to the foreign plaintiffs under the originating summons in (3) above, it is convenient to deal with the primary ground on which SCOR asserts its right to an injunction, namely that by proceeding with their counterclaims in the Illinois action, the foreign plaintiffs have invaded or threatened the rights of SCOR to be sued in accordance with the provisions of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the conventions) as imported into English municipal law by the Civil Jurisdiction and Judgments Acts 1982 and 1991. Mr Gross submits that SCOR has a right to be sued only in the courts of the state of its domicile (France) or the courts of such other contracting state as may be permitted under the conventions. He points to the various mandatory provisions of the conventions, in particular art 1, which provides that the conventions shall apply in civil and commercial matters whatever the nature of the court or tribunal; art 2, which provides that, subject to the provisions of the conventions, persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state; and arts 3 and 4, which confirm the primacy of domicile as the test of jurisdiction by providing that persons domiciled in a contracting state may be sued in the courts of other contracting states only by virtue of the rules set out in arts 5 to 17 of the jurisdiction title and that, if the defendant is not domiciled in a contracting state, the jurisdiction of the courts of each contracting state shall (subject to the provisions of art 1) be determined by the law of that state. Mr Gross also refers to art 6, which provides that a person domiciled in a contracting state may also be sued, where he is one of a number of defendants, in the courts of the place where any one of them is domiciled. He accepts that in accordance with the provisions of art 6, as defendants to a third party claim domiciled in a convention country, SCOR is obliged to appear before the English court in the actions commenced by the foreign plaintiffs. Accordingly, he asserts that the right of SCOR is to be sued in France or England in relation to the matters raised in the Illinois action. Finally, in support of his assertion that the conventions impose rights directly upon persons domiciled in contracting states, he relies upon that part of the preamble to the conventions which, sandwiched between language appropriate to the objectives and obligations of the contracting parties to the EC Treaty, expresses itself: 'Anxious to strengthen in the Community the legal protection of persons therein established . . .' Mr Gross suggests that this language is apt to impose upon individuals rights and obligations enforceable by injunction as well as by the power of the courts of contracting states to stay actions brought other than in accordance with the terms of the conventions. The foreign plaintiffs advance two answers to SCOR's claim to an injunction in support of its asserted right. First, they suggest that it is a misconception in this context to regard the provisions of the conventions as creating or conferring rights upon individuals, the invasion of which gives rise to the remedy of injunction. They argue that the purpose and language of the conventions is simply to make provision for allotment of jurisdiction as between the courts of contracting states, the method provided for enforcement in arts 21 and 23 being the machinery of stay (whether upon the application of a party or by the court of its own motion). They submit that the words of the preamble are not such as to call for any different construction or create the need for any additional remedy. Second, they submit that, even if the remedy of injunction to protect an 'invaded right' might otherwise be available in appropriate circumstances, the decision of the Court of Appeal in Re Harrods (Buenos Aires) Ltd [1991] 4 All ER 334, [1992] Ch 72 makes clear that the conventions were not intended to, and do not, regulate jurisdiction as between a non-contracting state (Illinois) and a contracting state but only jurisdiction as between contracting states; consequently, litigation by the foreign plaintiffs in the Illinois court cannot amount to invasion of any right conferred by the conventions. On that basis, the rules governing the availability of an injunction in this case will be the rules of English domestic law. In the event that SCOR fails to establish invasion of a legal or equitable right under the conventions on the lines canvassed above, Mr Gross relies upon the traditional jurisdiction of the English court to restrain the pursuit of foreign proceedings on principles most recently elaborated in the SNI Airospatiale case [1987] 3 All ER 510, [1987] AC 871, as to which principles there is no dispute between the parties. However, under the originating summonses, this ground is itself the subject of a preliminary dispute as to jurisdiction. As already indicated, service of the originating summonses was accepted by the foreign plaintiffs on condition that it would not amount to a submission to the jurisdiction relating to SCOR's application for an injunction or otherwise. It is not in dispute that none of the foreign plaintiffs is domiciled or resident or carrying on business in England. Each is domiciled in contracting states within the meaning of the 1982 and 1991 Acts. Consequently, by reason of art 2 of the conventions, the foreign plaintiffs may only be sued in the courts of their domicile (namely Germany and Switzerland), save in so far as they may be sued in the courts of another contracting state (namely England) by virtue of the rules set out in ss 2 to 6 of the conventions. In relation to service of the originating summonses in England, SCOR rely on art 6(1), which provides that a person domiciled in a contracting state may also be sued, where he is one of a number of defendants, in the courts of the place where any one of them is domiciled. Mr Gross points out that numerous plaintiffs in the relevant actions are domiciled in England and asserts that this court has jurisdiction over the foreign plaintiffs as co-defendants to the originating summonses. The foreign plaintiffs deny that art 6(1) is applicable for two reasons. (i) They assert that art 6 should be construed as not including claims by originating process for antisuit injunctions, such a form of relief being unknown in other European countries and peculiar to the United Kingdom. It is argued that the relief claimed is sought against a number of individual persons separately to prevent each suing in Illinois and that is the sum of the relief claimed. As such, the argument runs, they are not defendants being sued together in the sense contemplated by art 6(1). (ii) Reliance is placed upon Kalfelis v Bankhaus Schrvder, Munchmeyer, Hengst & Co Case 189/87 [1988] ECR 5565 at 5584 (paras 12-13). In that case the court stated (at para 12): 'The rule laid down in Article 6(1) . . . applies where the actions brought against the various defendants are related when the proceedings are instituted, that is to say where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. It is for the national court to verify in each individual case whether that condition is satisfied.' Mr Dehn QC argues that in a case of this kind, namely a decision whether or not to grant an antisuit injunction, the courts will not be dealing with decisions of substantive law but will simply be concerned with applying their own particular national procedural laws. That being so, he submits that even if one court were to grant an injunction and another not, those judgments would not be 'irreconcilable' within the meaning of the Kalfelis case. My decision in respect of SCOR's primary ground for relief is as follows. I consider that SCOR has failed to make good its assertion that the court has jurisdiction to grant the antisuit injunction claimed on the grounds that prosecution of the Illinois proceedings is an invasion of SCOR's right to be sued in accordance with the Treaty. I incline to the view, as submitted for the foreign plaintiffs, that it is not helpful to categorise commencement of suit in a jurisdiction other than that laid down by the convention as the invasion of a 'right' of the defendant in the traditional sense accorded to that term as a foundation for the grant of injunctive relief. However, I am not constrained, and do not propose to make, any further observation or finding on that aspect as it is clear to me that, whether or not such an approach is correct, on the authority of the decision of the Court of Appeal in Re Harrods (Buenos Aires) Ltd [1991] 4 All ER 334, [1992] Ch 72, no breach or invasion of such right arises in this case. In Re Harrods the Court of Appeal decided (disapproving earlier decisions at first instance in S & W Berisford plc v New Hampshire Insurance Co [1990] 2 All ER 321, [1990] 2 QB 631 and Arkwright Mutual Insurance Co v Bryanston Insurance Co Ltd [1990] 2 All ER 335, [1990] 2 QB 649) that the English court could stay an action against a defendant domiciled in England on the grounds that the court of a non-contracting state (Argentina) was the appropriate forum. It held that s 49 of the 1982 Act reserved the power of the court to stay or dismiss proceedings where to do so was not inconsistent with the Brussels Convention (the Lugano Convention was not yet in force). It further held that the convention was intended to regulate jurisdiction as between the contracting states and that it was not inconsistent with the letter or spirit of the convention to stay proceedings on the ground of forum non conveniens in a case involving a conflict of jurisdiction between the English court and the courts of a non-contracting state. A similar view as to the ambit and intention of the convention was expressed in a further decision of the Court of Appeal in Owens Bank Ltd v Bracco [1991] 4 All ER 833 at 840-842, [1992] 2 AC 443 at 452-454 per Parker LJ. A decision of Lord Cullen in the Court of Session, Wendel v Moran (1992) ILBr 579 (shortly stated at 588) is to similar effect. See also The Po [1991] 2 Lloyd's Rep 206 (where the point was conceded by counsel). Mr Gross made a number of submissions to the effect that the decision in Re Harrods was distinguishable, inter alia, on the grounds that, in this case, the parties on both sides are domiciled in contracting states. That is of course true; however, the views of the Court of Appeal in Re Harrods were not stated to be based upon the domicile of the parties, but upon the location and competing jurisdiction of the courts concerned. Mr Gross has referred me to certain academic criticism to which the decision in Re Harrods has given rise (see eg Cheshire and North Private International Law (12th edn, 1992) pp 333-334). However, that cannot assist him before this court, not least because the criticism is founded upon the view that the ratio of the Re Harrods decision is indeed that the conventions are concerned only with the jurisdiction of the courts of contracting states inter se. I do not think it is open to me (as a judge at first instance) to place upon the words of the Court of Appeal a limitation or qualification of the kind Mr Gross invites me to pronounce. In the course of the hearing, a substantial number of detailed and interesting arguments were made by both sides in support and rebuttal of the reasoning in the Re Harrods decision and/or the suggested need for limits to be placed upon its apparently wide effects. I do not propose to deal with them because of the clear view I have formed of the ratio as I have stated it, and its binding effect upon me. My decision as to the applicability of art 6(1) of the conventions in relation to the proceedings commenced by originating summonses is as follows. It seems to me plain on the face of it that in relation to the originating summonses, many of the defendants to which are domiciled in England, each of the foreign plaintiffs falls within the description contained in art 6, namely that of a person domiciled in a contracting state who is sued as one of a number of defendants in the courts for the place where a number of those other defendants are domiciled. That being so, it also seems to me that the burden rests upon the foreign plaintiffs to demonstrate that for some reason the words of art 6 are either restricted as to the type of suit referred to or, on the principles set out in the Kalfelis case [1988] ECR 5565, that the actions are such that it is not expedient to hear and determine them together. I do not accept the assertion of the foreign plaintiffs that art 6 should be construed as inapplicable to proceedings for an antisuit injunction simpliciter. Mr Dehn has made clear that he is not suggesting that an antisuit injunction is outside the scope of the convention. He accepts that it is 'a civil and commercial matter' within art 1 and to which art 2 applies, subject to the provisions of the convention. On that basis, there seems to me no warrant to exclude from the provisions of art 6 a claim for an antisuit injunction. Even assuming that Mr Dehn is right in asserting that it is a form of relief peculiar to the United Kingdom, of all European states, that does not in itself seem to me to take the claim for such relief outside art 6, which is unrestricted in its terms and must in my view be taken to anticipate that a defendant domiciled in one contracting state may face an action in another contracting state for a remedy which would not be available if sued in the courts of his own domicile. Again, it seems to me that the argument that the relief claimed by SCOR is sought against the defendants separately to prevent each suing in Illinois is insufficient, at least on the face of it, to place each of the foreign plaintiffs outside the terms of art 6(1). There is certainly nothing in the general wording of that article to suggest that it is limited to cases in which there is an assertion of joint liability on the part of the defendants sued or that it is otherwise inapplicable to the situation where a number of defendants, whether jointly or severally, are (on the same facts) similarly liable to the remedy sought by the plaintiff to the suit. In this connection it may be observed that the Jenard Report on the Brussels Convention (OJ 1979 C59, p 1 at p 26) refers to the case of joint debtors only as an example of the type of connection which may be shown. In my view the identical nature of the relief claimed against the various defendants to the originating summonses, arising from their participation as plaintiffs in the various Eras EIL actions and based upon similar acts of alleged unconscionable/oppressive conduct abroad in relation to those proceedings, gives rise to a sufficiently close factual and legal connection between them for the purposes of art 6(1), provided it can be demonstrated that any further requirement imposed by the Kalfelis case is satisfied. On that question, it should first be noted that the principal concern of the court in the Kalfelis case was to guard against the possibility that might arise if a plaintiff were at liberty to utilise art 6(1), which is itself an exception to the 'domicile' principle enshrined in art 2, so as to call into question the very existence of that principle. It was observed ([1988] ECR 5565 at 5583 (para 9)): 'That possibility might arise if a plaintiff were at liberty to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of the defendants is domiciled . . . For that purpose, there must be a connection between the claims made against each of the defendants.' There is no suggestion that SCOR has such purpose in this case. However, as to the necessary connection, the court grafted onto the wording of the rule in art 6(1) a qualification, in terms borrowed from the third paragraph of art 22 of the convention, which is concerned with 'related actions' and provides that actions are deemed to be related 'where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings'. That decision provides no detailed guidance upon the meaning of 'irreconcilable judgments' in this context or upon the practical application of the principle as stated. It simply observes (at 5584 (para 12)): 'It is for the national court to verify in each individual case whether that condition is satisfied.' Neither Mr Gross nor Mr Dehn has produced any decision, text or academic commentary which elucidates the meaning of the word 'irreconcilable' in this context. Mr Gross submits that irreconcilable judgments are no more than judgments which, upon essentially the same facts and issues, come to a different conclusion so far as the rights of the parties arising therefrom are concerned. He submits that if on the basis of similar acts, circumstances and considerations in respect of defendant A and defendant B, defendant A would be granted an antisuit injunction in England but defendant B would be denied one in Germany, then the judgments granting or denying the injunctions would be irreconcilable. Mr Dehn, on the other hand, submits that such judgments in this case would not be irreconcilable in any relevant sense for the purposes of the convention. He says that, whereas in a broad sense they might be irreconcilable from the plaintiffs' point of view, the concern of the convention and in particular art 6(1) is with substantive law and the problems which might arise in relation to the enforcement of judgments based on irreconcilable views or decisions on the same matters of fact and law. He submits that in this case the judgments in respect of A and B postulated by Mr Gross would simply reflect the different approaches of courts in different contracting states and in particular the differences in their procedural laws, antisuit injunctions being matters of procedure and not of substance. Mr Gross's argument is an attractive one, particularly to an English court which might, in the absence of the decision in the Kalfelis case, have been inclined to regard art 6(1) as a straightforward provision sensibly aimed at bringing all parties concerned in a single dispute or related disputes arising out of the same transaction into a single forum for the purposes of their resolution. In this connection I observe that the authors of Briggs and Rees on Civil Jurisdiction and Judgments (1993) p 112, having noted that a literal application of the Kalfelis decision may be difficult, urge that a broad view be taken of its effect and that it should be interpreted to mean that if the claims made are so closely connected that it is expedient in the interests of justice that they be heard together, then art 6(1) should give the court jurisdiction. While that suggestion is also attractive, it seems to me an invitation to ignore rather than to interpret the test enunciated by the European Court which, whatever it may mean in precise terms, plainly has a more restrictive intention. It seems to me that judgments may be irreconcilable (at least in the sense of 'incompatible' or 'contradictory') on a number of bases: by reason of irreconcilable findings upon the facts, or by reason of irreconcilable legal conclusions being drawn on the basis of those facts (which in turn may depend on different rules of substantive law in the jurisdictions concerned), or by reason of the position that on the basis of the same facts and despite essentially similar substantive law rules, nonetheless differing remedies are available (or unavailable) in two jurisdictions. Whether or not that analysis is comprehensive, or even helpful, it is clear that the court in the Kalfelis case [1988] ECR 5565 drew back from any similar exercise. Furthermore, it appears to have ignored that part of the opinion of the Advocate General, where, having recommended the court to choose the 'purpose related' criterion of art 22, he also recommended the court to refer expressly to 'contradictory decisions' in order to stress that the choice made favoured a solution of sufficient breadth to cover, for example, two judgments in a damages claim, one upholding the claim and the other dismissing it on grounds relating to the characteristics of the damage (see [1988] ECR 5565 at 5575 (paras 14-15)). The only signpost given by the court was a reference to the preoccupation of the convention with judgments which are 'incompatible' with each other (at 5584 (para 11)). Having stated its conclusion as quoted above, it then directed the national court to verify in each case whether the condition of irreconcilability was satisfied. In relation to Mr Dehn's submissions, I note certain remarks in a decision of the European Court which he drew to my attention in another context, namely Kongress Agentur Hagen GmbH v Zeehaghe BV Case C-365/88 [1990] ECR I-1845 at 1865 (para 17), in which it was stated: 'It should be stressed that the object of the Convention is not to unify procedural rules but to determine which court has jurisdiction in disputes relating to civil and commercial matters in intra-Community relations and to facilitate the enforcement of judgments. It is therefore necessary to draw a clear distinction between jurisdiction and the conditions governing the admissibility of an action.' (My emphasis.) That case was concerned with art 6(2). However, in the passage cited, the court was plainly of the view that the object of the convention is twofold, namely to determine which court has jurisdiction in disputes relating to civil and commercial matters and to facilitate the enforcement of judgments, without suggesting that the former object is necessarily to be read solely in the light of the latter. Thus it does not seem to me that I am driven to an interpretation of the word 'irreconcilable' in the light only of the latter, but I am permitted to take a broader view of its meaning as covering the various circumstances I have indicated. Further, just as Mr Dehn has disclaimed any argument that categorisation of an antisuit injunction as a procedural remedy removes the claims of SCOR from the ambit of the jurisdiction chapter of the convention, I do not think that so to categorise it is to remove the granting or withholding of such a remedy from the potential category of 'irreconcilable judgments' referred to in the Kalfelis decision. In this case I consider that the English court would have jurisdiction over the foreign plaintiffs under the originating summonses should it prove necessary to resort to it. (It is appropriate to note that such jurisdiction does not of course extend to cover Nisshin and PICC, which are foreign plaintiffs not domiciled within a convention state. Thus, had not Nisshin and PICC waived the question of jurisdiction and accepted service notwithstanding their domicile, the jurisdiction of the court over Nisshin and PICC would depend entirely on my decision earlier indicated as to the court's jurisdiction to entertain the application within the already existing Jackson action.) Vexation/oppression I now turn to the second basis upon which SCOR claims the relief sought, namely the grounds of vexation and oppression as expounded in the House of Lords decision in SNI Airospatiale v Lee Kui Jak [1987] 3 All ER 510, [1987] AC 871. For that purpose it is convenient to turn to the judgment of Glidewell LJ in Barclays Bank plc v Homan [1993] BCLC 680. In a passage which I understand the parties accept as an accurate summary of the principles to be applied in this case, Glidewell LJ, after emphasising the need for caution in exercising the jurisdiction to restrain foreign proceedings having regard to the principle of comity (see the SNI Airospatiale case [1987] 3 All ER 510 at 519, 521-522, [1987] AC 871 at 892, 895), said: '. . . the principles to be derived from the judgment of the Privy Council in Aerospatiale can be summarised as follows: (i) If the only issue is whether an English or a foreign court is the more appropriate forum for the trial of an action, that question should normally be decided by the foreign court on the principle of forum non conveniens, and the English court should not seek to interfere with that decision. (ii) However if, exceptionally, the English court concludes that the pursuit of the action in the foreign court would be vexatious and oppressive and that the English court is the natural forum, ie the more appropriate forum for the trial of the action, it can properly grant an injunction preventing the plaintiff from pursuing his action in the foreign court. (iii) In deciding whether the action in the foreign court is vexatious and oppressive, account must be taken of the possible injustice to the defendant if the injunction be not granted, and the possible injustice to the plaintiff if it is. In other words, the English court must seek to strike a balance.' (See [1993] BCLC 680 at 701.) So far as principle (i) is concerned, the current position is, of course, that the Illinois judge at first instance has already ruled that Illinois is the appropriate forum to determine the issues of fraud raised by IIC against SCOR in IIC's second amended and supplemental complaint in the Illinois action. A decision on appeal is awaited, but I proceed upon the basis that the ruling of the first instance judge is unlikely to be overturned, such matters (if they are to be raised at all) being matters of 'compulsory counterclaim' as against IIC (that is to say, counterclaims which under Federal Rules must be heard in the same proceedings as the main action). These IIC allegations are reflected in the second amended counterclaim of the XOL reinsurers/plaintiffs, and it seems to me unlikely that the Illinois court would regard them in a different light. So far as principles (ii) and (iii) are concerned, I shall now turn to the submissions of the parties on the question of natural forum and vexation/oppression. SCOR'S SUBMISSIONS For the purposes of his submissions on natural forum, Mr Gross distinguishes between what he calls individual coverage disputes, namely specific disputes between an insurer and his reinsurer, for which he accepts the United States may properly be regarded as the natural forum, and what he describes as 'programme litigation', concerning programme-wide disputes comprising the mass of primary and derivative disputes which make up the Eras EIL litigation, and relating to the management and operation of the EIL programme, and which already include claims for damages for breaches of contractual and tortious duty by SCOR in respect of the underwriting risks and handling of insurance claims. Mr Gross points out that the 'centre of gravity' for the management of the programme was London, and that the plaintiffs are themselves predominantly Lloyd's underwriters and London insurance companies suing in relation to reinsurance or retrocession placed in the London market. He also relies on what has been called the 'Cambridgeshire factor' (see Spiliada Maritime Corp v Cansulex Ltd, The Spiliada [1986] 3 All ER 843 at 861-862, [1987] AC 460 at 485-486, as discussed by Lord Goff in the SNI Airospatiale case [1987] 3 All ER 510 at 523-524, [1987] AC 871 at 897-898), arguing that the litigation team and general insurance expertise (as well as the English base of the main witnesses) in relation to the central administration of the reinsurance programme ranks as a special factor in favour of a London forum. Thus, he submits, London is the natural forum for the programme litigation. In contrast, as Mr Gross submits, the claim made by IIC against the plaintiffs in Illinois is at heart a dispute in respect of coverage relating to one programme claim, namely that of SKB, in relation to which the Illinois XOL defendants were originally content to file affirmative defences and counterclaims which alleged only breach of conditions and bad claims handling against IIC alone and did not raise programme-wide issues. He says it was only in the second amended counterclaim in March 1992 that SCOR was joined as a defendant to that counterclaim, on the basis of alleged general fraudulent failure to disclose imprudent underwriting practices and as an alleged party with IIC to a RICO conspiracy. Mr Gross further relies on the fact that the plaintiffs have actively participated with SCOR and others in expensive preparations for trial in London over a period of years on the programme-wide issues, and have sought discovery and other interlocutory relief against SCOR. The English actions, whilst not ordered to be consolidated, have procedurally been dealt with on a consolidated basis and the plaintiffs have encouraged and participated in case management programmes on the basis that London was the proper forum. It is said that the late inclusion in the plaintiffs' counterclaim in Illinois of claims based on fraud and raising programme-wide issues in that respect is a new initiative inconsistent with their previously adopted position and expanding the hitherto narrow issues in the Illinois action. Reliance is placed upon the views of the Court of Appeal ([1992] 1 Lloyd's Rep 570), expressed in its decision in July 1992, that London is the appropriate forum for the programme-wide issues raised before it in the Eras EIL actions. Mr Gross also seeks to rely on certain remarks made by counsel in their submissions to Saville J and Waller J on earlier occasions as being inconsistent with the plaintiffs' stance and/or submissions in this application. In relation to vexation/oppression, Mr Gross submits that, in the light of the above matters, the pursuit of the amended counterclaims against SCOR in Illinois is oppressive, unconscionable and unjust. SCOR is already a defendant or third party to Eras EIL proceedings which the plaintiffs have chosen to bring in London and in which they seek damages for imprudent underwriting of risks and handling of claims. It is asserted that, if the plaintiffs wished to raise allegations of fraud against SCOR in relation to its alleged participation in programme management and/or concealment and misrepresentation, then, involving as they do programme-wide issues, the appropriate place to do it is London. It is said that the Illinois counterclaims wrongly subject SCOR to the burden of duplicated litigation with all its attendant disadvantages. Mr Gross asserts that the plaintiffs' claim against SCOR in the Illinois action (in respect of which SCOR has paid its reinsurers' share of the SKB claim in full and was not originally joined by IIC as a defendant) is simply a tactical exercise. He relies in particular upon the fact that Clarksons and Howdens, who are also named as alleged RICO conspirators, have not been joined as co-defendants to the second amended counterclaim. He also says, in relation to the 'balance of justice', that the RICO claim cannot be said to represent a legitimate advantage of which it would be unjust to deprive the plaintiffs, the formulation of such counterclaims in terms of fraud and racketeering being unconscionable and oppressive. In this connection he accepts that the allegations based on RICO represent a cause of action which could not be pleaded in the London proceedings, but says that the right to treble damages for which RICO provides does not represent a legitimate advantage to the plaintiffs, given that they could recover adequate compensatory damages for fraud and conspiracy (if alleged) in the English court. He relies upon the provisions of the Protection of Trading Interests Act 1980 as a manifestation of United Kingdom public policy unfavourable to such claims. Reliance is also placed upon the ruling of District Judge Lasker in the US District Court, Southern District of New York, given in August 1992 in Roby v Corp of Lloyd's (1992) 824 F Supp 336. In that case, which concerned various allegations made against Lloyd's syndicates under RICO, Judge Lasker observed (at 347-348): 'The sophistication and fairness of English courts cannot seriously be disputed . . . Although English law does not afford the treble damage provisions of RICO or the less rigorous elements of proof of the American securities laws, it does at a minimum offer a full panoply of common law remedies for the alleged behavior underlying all plaintiffs' claims . . . Such remedies afford plaintiffs protection under the law; the English law which they earlier accepted merely is less advantageous than the American law that they now prefer.' THE PLAINTIFFS' SUBMISSIONS The submissions of Mr Smith and Mr Dehn for the plaintiffs are on the following lines. They point out that this is not a case where the plaintiffs, having commenced and/or become party to proceedings in one forum (namely London), have, of their own initiative, instituted or threatened proceedings in the foreign forum (Illinois); their involvement in Illinois proceedings has been involuntary, in the sense that they were sued there by IIC, an American insurer, in respect of a policy issued to an American insured in relation to which they were entitled and/or obliged to defend themselves by means of 'compulsory' counterclaims in those Illinois proceedings. They initially attempted to avoid this and to defeat the claim of IIC by issuing a writ in London (which no doubt would have become one of the Eras EIL actions) for a negative declaration of non-liability, also moving in the Illinois court for forum non conveniens. However, that attempt failed when, by order of Saville J, the writ was set aside on the application of IIC on the grounds that Illinois, rather than England, was the appropriate forum. Thereafter, say the plaintiffs, it was logical and appropriate (if not essential) for the plaintiffs to raise by way of counterclaim against IIC all those matters on which they relied to resist liability. This they legitimately did in July 1990 when, (although not at that stage joining SCOR) they made fraud and RICO allegations against IIC, merely naming others (including SCOR) as participating in the fraud. It was IIC and not the plaintiffs who first joined SCOR on the basis of those allegations. Although the plaintiffs in turn then added SCOR as counterdefendants to their counterclaim, SCOR was by then unavoidably involved at the suit of IIC on a fraud-based and/or programme-wide basis. Against that background, the plaintiffs submit as follows in relation to natural forum. (1) Given that the foreign suit sought to be enjoined is the second amended counterclaim of the plaintiffs based on fraud and RICO, it is not enough merely to assert in general terms that London is the natural forum for programme-wide issues. The Illinois counterclaim (in counts 5, 8 and 11) makes similar claims and raises the same issues as those raised against IIC. These claims are appropriately heard together in the same jurisdiction as the claim to which they constitute a defence and/or with which they are intertwined. The counterclaim does not seek to duplicate the plaintiffs' claims for breach of duty of care in tort and/or contract against Clarksons, which are the main basis of the Eras EIL actions. (2) The factual matrix to the counterclaim against IIC and SCOR is centred in the United States (not London) in the sense that all or most of the acts and omissions complained of took place in the United States and are subject to US law. Further, albeit the management and/or 'centre of gravity' of the programme may have been in London, it is equally the case that the scheme was a US scheme and the broking and primary insurance were effected in the United States. (3) If the plaintiffs are to proceed against IIC and SCOR in the same proceedings in relation to the joint fraud and conspiracy alleged, it must be in Illinois. That is because (quite apart from the peculiarity of RICO claims to the United States) if the plaintiffs sought to sue IIC in England they would be liable to be enjoined in Illinois from doing so on the grounds that their cause of action is a 'compulsory' counterclaim. They have of course (albeit at a much earlier stage) already had a writ seeking to avoid liability as against IIC set aside for forum non conveniens by Saville J. (4) Even if London is, in case management terms, the natural or preferable forum for programme-wide issues, in the light of the position reached in the Illinois action those issues simply cannot be so contained. The matters raised against SCOR in the second amended counterclaim have already been raised against them by IIC in their second supplemental complaint. Further, even if the counterclaim is stayed as against SCOR, it will continue against IIC. Thus, if it is indeed the case that the fraud claims raise programme-wide issues, those issues are already irretrievably 'out of the bag' in the Illinois action. 'Overlap' between proceedings is inevitable, but, at least at present, there is no overlap in relation to allegations of fraud which (so far as SCOR is concerned) will have to be answered in Illinois even if the injunction sought is granted. The plaintiffs deny that there is any significant 'Cambridgeshire factor' in favour of London, given that a parallel litigation team and abundant local expertise have already been established, and at work for some time, in relation to the US court and arbitration proceedings already mentioned, which yet do not themselves constitute the sum of insurance actions afoot in the United States arising from the Eras EIL disaster. (5) So far as the judgment of the Court of Appeal is concerned, the plaintiffs submit that it is of little direct assistance on the question before this court. The main issue before the Court of Appeal was whether third party claims by Clarksons and SCOR brought against US third parties in the Eras EIL actions could (and, if so, ought to) be determined in England together with the main proceedings for breach of duty begun by various reinsurers against Clarksons which had been proceeding for some years in the English courts. The claims against the US third parties were derivative and there were obvious merits in having the main claims and the derivative claims heard in the same jurisdiction. However, the claims against SCOR by the XOL reinsurers in Illinois are not similarly derivative claims. (6) In any event, the plaintiffs submit it is incorrect to suggest that the Court of Appeal, when dealing with the jurisdiction of the English court over the US third parties, contemplated that all the issues between the principal parties could or ought to be determined in London. The court was aware of the claims of IIC (and others) in the United States (Sociiti Commerciale de Riassurance v Eras International Ltd [1992] 1 Lloyd's Rep 570 at 581), but never suggested (indeed, it was never argued) that those claims should be brought in England. The passage of the Court of Appeal judgment relied on (at 616-622) was concerned only with the claims against Clarksons for breach of duty of care and with Clarksons' claims over against the US third parties in respect of those matters, and when the court referred elsewhere to those claims (at 598-601) it is not apparent that it had in mind, let alone intended its remarks to cover, the complaints against IIC in Illinois for bad underwriting and bad claims handling in the United States, let alone for fraud or under RICO. (7) While the plaintiffs have co-operated in London so that the Eras EIL actions may be effectively case managed, they have not done so on the basis that London is the natural forum for all disputes which may raise programme-wide issues and they deny that their claims in Illinois are inconsistent with their claims in London. Rather, they assert that it would be inconsistent if the plaintiffs were forced to sue SCOR in London when, for the purposes of the litigation in London, they are essentially on the same side and have similar interests so far as allegations against Clarksons are concerned. In relation to vexation/oppression, the plaintiffs further submit as follows. (8) Duplication of proceedings. They emphasise that grant of the injunction will not prevent duplication of proceedings in the sense of the substantial overlap indicated above. Indeed, grant of the injunction would increase overlap and lead to actual duplication if the fraud claims were tried in England. Witnesses would have to give evidence twice on the same issues and in two countries with consequent duplication in costs; also (subject to questions of issue estoppel), there would be a risk of inconsistent judgments in England and Illinois on the same issues. On the other hand, SCOR will remain party to the Illinois action at the suit of IIC so that it will in any event have to give discovery of documents and make witnesses available for depositions in those proceedings. (9) Quite apart from the Illinois action, SCOR is and will remain a party to at least two other actions in the United States which both require considerable investigation of the structure and operation of the EIL programme, namely (i) the action by Waste Management Inc, and (ii) the action brought by IIC in the Chancery Division of the Circuit Court. In addition, SCOR will remain a party to arbitration proceedings in the United States in which IIC make claims over against SCOR, involving the same witnesses and documents. (10) Deprivation of advantage/fraud and RICO. The requirement inherent in the grant of an injunction that the plaintiffs (a) should pursue any fraud action in London and (b) should as a result lose their opportunity to claim under RICO, would be to deprive the plaintiffs of advantages in Illinois of which it would be unjust to deprive them (see SNI Airospatiale v Lee Kui Jak [1987] 3 All ER 510 at 522, [1987] AC 871 at 896). That is because (i) it is plainly an advantage to sue IIC and SCOR together in the same court in respect of the same causes of action, and (ii) the RICO remedy, with its advantage of treble damages, is a statutory tort without equivalent in England. If obliged to sue in England for damages for common law fraud, the amount recoverable would be unlikely to be any greater than that obtainable under the causes of action already asserted against Clarksons. (11) In that connection, the plaintiffs would wish to enforce their judgment against SCOR in the United States or in France; yet in France there is no legislation equivalent to ss 5 and 6 of the 1980 Act which would enable SCOR to 'claw back' the incremental damages awarded under RICO, and SCOR is not a 'qualifying defendant' able to recover in England under the 'clawback' provisions (see s 6(3)). As to the effect of the 1980 Act, the plaintiffs reject the contention that it embodies any policy greater than that which its own terms encompass. The plaintiffs point out (rightly in my view) that such was the opinion of Parker J at first instance in British Airways Board v Laker Airways Ltd [1983] 3 All ER 375 at 389, 391, [1984] QB 142 at 160, 163, indorsed by Lord Diplock in the House of Lords ([1984] 3 All ER 39 at 49, [1985] AC 58 at 85). As to the US decision in Roby v Corp of Lloyd's, the plaintiffs point out (again rightly in my view) that the remarks of Judge Lasker were expressed in the context of his consideration and application of an express 'choice of jurisdiction' clause agreed between the parties. As such they do not assist SCOR as to what would be the view taken by a US court in relation to the issues in this case. (12) Discretion generally. Apart from the matters already mentioned, the plaintiffs rely on certain additional matters in relation to the court's discretion. They complain that, (i) although the plaintiffs filed the second amended counterclaim adding SCOR in March 1992, SCOR raised no objection until it made these applications in January 1993; (ii) if an injunction is granted, further delays will occur. The matter is presently proceeding in Illinois on the basis of a cut-off date for discovery in December 1994 and a likely trial date in summer 1995. If the plaintiffs were obliged to pursue their claims in England, the trial now due to start in January 1996 may be delayed yet further by a significant addition to its burden and complexity. Pleadings as between the plaintiffs and SCOR would need to be amended and SCOR might wish to claim contribution from Clarksons or from one or more of the US third parties; (iii) if the plaintiffs had to sue for fraud in England, there would be imposed a significant realignment of interest in the Eras EIL proceedings in which the plaintiffs, currently aligned with SCOR against Clarksons in relation to their claims for breach of contract and negligence, will be placed in a position of conflict with SCOR arising from allegations of fraud (in conjunction with Clarksons) on the lines raised in the Illinois action. (13) It is said it would be inappropriate and unfair for the court, having earlier declined jurisdiction in favour of Illinois as the natural forum for the suit between IIC and the plaintiffs, now to seek to 'strip out' of that action matters raised against SCOR by way of counterclaim which reflect and/or arise from matters pleaded by IIC in that action. In that situation, say the plaintiffs, application to the Illinois court would have been appropriate; yet this SCOR has declined to make in favour of the present application. CONCLUSIONS Having considered the rival arguments carefully, I am satisfied that SCOR's case on vexation and/or oppression has not been made out and the balance of justice lies in favour of the plaintiffs, whose arguments I broadly accept. Before referring to them in the order in which I have set them out above, I shall state certain premises upon which I proceed. (a) The fraud/RICO claims First, on the evidence and arguments before me I do not consider that I am entitled to treat the claims in fraud or RICO as being made in bad faith or without any foundation. Apparently, the plea against IIC (which included an allegation against SCOR, who was not immediately joined for commercial reasons) followed the discovery of various documents considered to justify it. Those claims have been permitted to proceed in the United States. Further, the only underlying document to which my attention has been specifically drawn in this connection appears (on the face of it, at least) to indicate that a representative of SCOR was party to conversations with Clarksons representatives which in the absence of satisfactory explanation might well go to support a plea of fraud. So far as RICO is concerned, whilst it may be that the original purpose of that statute has across the years been developed and extended to cover situations beyond the original aims of the statute (this case no doubt affording an example), the plea in the Illinois action has so far survived scrutiny or challenge in the US court and I do not consider it is open to me to go behind that. As to policy considerations, as I have already indicated, it appears to me that the appellate courts of this country have refused to treat the 1980 Act as requiring a generally adverse approach to remedies under foreign statutes providing for multiple damages for any reason of policy extending wider than the plain legislative intention to refuse to enforce, and/or to permit clawback of, any incremental element in the damages awarded as provided in ss 5 and 6. Nor do I deduce, against the history of the parallel proceedings as I have outlined them and in the light of the explanations proffered, that the absence of a fraud plea in the English proceedings and/or the decision not to join Clarksons or Howdens in the United States demonstrates bad faith (as distinct from commercial interest) in respect of the plaintiffs' plea against SCOR. Indeed, when asked by me in the course of the hearing whether it was open to me to go behind the fraud, conspiracy and RICO pleas and to form a conclusion as to their prospects, Mr Gross accepted that it was not. I shall deal further below with the fraud/RICO claims in the context of 'judicial advantage'. (b) Previous Eras EIL decisions I do not consider that I can obtain any substantial guidance in this case from the stances adopted by the advocates, or the reasons given by the court, in relation to the various previous decisions in the Eras EIL actions. In none of those decisions does it seem to me, bearing in mind the issues then before the court and the then state of proceedings on either side of the Atlantic, that the parties deployed arguments significantly at odds or otherwise inconsistent with their stances before me; nor (for the reasons advanced in paras (5) and (6) of the plaintiffs' arguments) do I consider that the Court of Appeal made any observations of direct assistance in relation to the issues before me. (c) The overall approach All the cases to which I have been referred on the principles to be applied in relation to the grant of antisuit injunctions have emphasised the need for caution in exercising a jurisdiction the effect of which is to prohibit or interfere with foreign proceedings. It is for this reason that the court will only exercise its jurisdiction when satisfied that a case of oppression has been made out. In this connection it is clear that, whilst it is a prerequisite to any order that England be the natural forum for the dispute, that is not enough in itself. Considerations of natural forum may be decisive when the court is considering whether to exercise or regulate its own jurisdiction in relation to questions of leave to serve out of the jurisdiction or staying its own proceedings for forum non conveniens; however, more is required when the effect of the order will be to prohibit or restrict proceedings in a foreign court. It is only by demonstrating unconscionable vexation and oppression that an applicant may be successful and, in that context, a balance must be struck as between the legitimate interests of the parties. In this case, SCOR plainly desires to be rid of allegations of fraud and RICO in the United States which, in the case of RICO, could not and, in the case of fraud (as SCOR believes), would not be made in England. However, given that I am not prepared to regard those pleas as either made in bad faith or doomed to failure, the vexation/oppression arguments reduce to (a) the question of whether the claim in RICO is per se to be regarded as oppressive to SCOR and (b) the question of the inconvenience and extra expense involved for SCOR in having to be concerned in programme-wide matters in two jurisdictions if the order is not made. As to (b), it seems to me that SCOR's plea is gravely undermined if examination of the facts reveals that those issues will (at least to a great extent) be explored in any event in foreign proceedings to which SCOR will remain a party. It seems to me plain that such is the case. The detail of the duplication which will remain was made clear in the context of the various issues raised in the Illinois action by Magistrate Judge Weisberg in his opinion/rulings of 20 December 1991, as confirmed in his further opinion of 28 April 1992 on SCOR's application to reconsider. Those opinions related to the position created by the issues arising between the XOL reinsurers and IIC as a result of the original counterclaim. The points made on necessary duplication are fortified rather than weakened by the filing of the second amended counterclaim. It is with ironic interest and some sympathy that I note that in his second opinion Magistrate Judge Weisberg expressed -- 'the hope that this elephantine dispute may be prodded away from the lush watering hole of jurisdictional and forum squabbles and headed in the general direction of resolution.' Finally, I observe that the authorities to which I have been referred concerning the grant of antisuit injunctions considered situations where grant of the order sought would be likely to prevent any further involvement of the applicant in the foreign proceedings; they have not concerned the situation where (as in this case), even if the injunction is granted, it will not be effective to end such involvement. With that introduction, I am able to deal quite shortly with the detailed submissions of the parties by reference to the numbered heads of the plaintiffs' submissions. (d) Natural forum (1), (2) and (4) While Mr Gross's classification of the disputes which have arisen on either side of the Atlantic into 'individual coverage disputes' and 'programme litigation' would be an attractive and logical one in principle, given a 'clean sheet' on both sides of the Atlantic and, if maintained or maintainable, would lead to a sensible division of labour between the Illinois court and the English Commercial Court, it seems to me that it is a line which has already been breached and is incapable of restoration. It was not a line which, as matters unfolded in England, was apt to avoid various American parties being joined in the Eras EIL actions, despite the observation of Mustill LJ that they were 'already much pressed in litigation before their home forum [and] will be even more stretched if brought to fight on another front before a foreign Court whose jurisdiction they have never explicitly chosen'. (See [1992] 1 Lloyd's Rep 570 at 616.) Similarly, it seems to me that SCOR was obliged to cross that line when it was joined in the Illinois action by IIC. The trigger for that was, of course, an allegation first raised by the plaintiffs against IIC; but that is a matter of history and its effect would not be reversed by grant of an injunction in the terms sought. SCOR does not (and no doubt could not) seek to restrain the plaintiffs' allegations as against IIC nor (save by an attempt in Illinois which has proved unsuccessful) could they hope to restrain IIC's claims against SCOR. Thus, even if they did not arise before, programme-wide issues have now been raised in proceedings in respect of which it has at all times been conceded that Illinois is the natural forum. The result is that, as at the date of this application, Mr Gross's task in arguing that London remains the only natural forum for programme-wide disputes has become a very difficult one. Further, whatever may have been the position at an earlier stage, it deprives him of any substantial argument on the basis of the 'Cambridgeshire factor'. It is in any event my view that, bearing in mind the nature of the issues and SCOR's need for a legal team with programme-wide expertise to be available in the United States to deal also with the Waste Management and Cook County Chancery actions, the arbitration issues and any other actual or potential insurers' actions in the United States, a factor favouring London of the special kind which existed in The Spiliada [1986] 3 All ER 843, [1987] AC 460 cannot be said to be present in this case. (3) It seems to me beyond argument that, if the plaintiffs' claims in fraud and RICO against IIC are appropriately before a US court in terms of conspiracy and/or joint liability with SCOR, then (absent some highly compelling contrary reason) it is not only a legitimate desire of the plaintiffs, but also sensible and logical that SCOR's liability in respect of those matters should be determined in the same proceedings. The issues of fraud (programme-wide or not) have not been raised in this court and there is presently no obvious danger of conflicting decisions on that issue (aliter if the injunction is granted and the issue of fraud is taken up against SCOR in England). (5) and (6) I accept the analysis and comments of the plaintiffs so far as the decision of the Court of Appeal is concerned. (7) I do not consider that the plaintiffs' claims in Illinois demonstrate inconsistency with their claims in London or with their co-operation in the case management of the Eras EIL actions. Their interest in pursuing fraud claims in the Illinois action rather than in London is obvious, both for the reasons just advanced and for the perceived advantage of an opportunity of treble damages under RICO. I doubt if concern at the possible inconsistency of their position if forced to sue SCOR for fraud in London has been uppermost in the concerns of the plaintiffs; nonetheless, the grant of an injunction as asked would be likely to produce such an effect in actions which have previously been free from allegations of fraud. (8) and (9) I have already dealt with the question of overlap, duplication of proceedings and risk of inconsistent judgments. It is also clear that, even if enjoined, SCOR will remain party to the Illinois action at the suit of IIC and will at least have to give discovery of documents and make witnesses available for depositions in those proceedings. SCOR's involvement in the other US proceedings already referred to will also continue. This seems to me to deprive SCOR's argument as to oppression of any real force. There is bound to be a degree of overlap; the burden of SCOR's presence and participation on programme-wide issues on both sides of the Atlantic cannot be removed. (10) and (11) SCOR argues that the claim in RICO is oppressive per se, giving as it does a right to treble damages. The plaintiffs, on the other hand, argue that is a legitimate juridical advantage to them of which they should not be deprived. I do not consider it necessary, nor do I propose, to make any decision in principle on the status of RICO claims so far as English public policy is concerned. It seems clear to me that antisuit injunction cases fall to be decided upon their particular circumstances. In this case the claim in RICO is made in conjunction with a claim in common law fraud and conspiracy which SCOR does not contend can be attacked in principle upon policy grounds, either as to its nature or the measure of damages normally awarded. If, as I consider, the plaintiffs should be entitled to pursue a cause of action in fraud in the Illinois proceedings for the reasons already canvassed, then it does not seem to me that I should regard the addition of the RICO claim, sanctioned by the Illinois court, as transforming a case of 'legitimate juridical advantage' into one of unconscionable 'oppression'. My inclination is to regard the observations of Parker J in British Airways Board v Laker Airways Ltd [1983] 3 All ER 375 at 389, 391, [1984] QB 142 at 160, 163 as marking the limits to which an English court would be likely to go in refusing full recognition to the effect of claims under RICO. If that is correct, then the plaintiffs would suffer deprivation of a legitimate advantage, on the basis that there is no legislative equivalent to ss 5 and 6 of the 1980 Act in France. (12) and (13) As to the plaintiffs' complaint that these applications were made late (January 1993), the plaintiffs having filed their second amended counterclaim in March 1992, I do not attach undue weight to that. That is because the Illinois court ruled on 24 March 1992 that SCOR need not plead to the second amended counterclaim until IIC's application to dismiss the RICO allegation had been determined, since, if it was successful, the plaintiffs' claims against SCOR would have fallen away. Judge Lindberg did not confirm the adverse ruling of Magistrate Judge Weisberg till 30 December 1992, whereupon the ex parte application was soon brought on before Phillips J with a view to these applications being heard. The reason the matter was not earlier pursued in the United States is also said to have been that the plaintiffs' grounds of application on the basis of SCOR's 'rights' under the 1982 and 1991 Acts was better heard in England than in the Unites States. It is no doubt the position that SCOR regarded its prospects of success in England as better than in Illinois, bearing in mind that the primary ground it asserted for grant of an injunction would have been no more than a factor to be taken into consideration in the United States. That was an understandable view, although it is one which has not in the event proved of assistance to SCOR. Nonetheless, it is the unfortunate fact that, if the injunction sought is granted, yet further delay in the progress of this litigation is likely to occur for the reasons mentioned by the plaintiffs. Finally, I do not treat the decision of Saville J at a much earlier stage, when he declined jurisdiction in favour of Illinois as the natural forum for the suit between IIC and the plaintiffs, as decisive of these proceedings, or as rendering it 'unfair' if I were to take a different view on these applications. One of the unfortunate features of an unrolling saga on both sides of the Atlantic, where many issues arise between many different parties, is that the perspective of the court is likely to differ according to the nature of the application before it from time to time. Nonetheless, the decision of Saville J undoubtedly affected the course of the proceedings and the manner in which the plaintiffs have regulated their conduct since. In the situation which presently exists, I do not consider that the ends of justice require, or that it would otherwise be appropriate, to grant SCOR the relief which it seeks. In the light of my decision, it appears (subject to questions of costs) that none of the parties is entitled to an order in the terms sought in the individual summonses. However, I will hear argument from the parties upon the final forms of order which I should make, including the appropriate order in respect of the ex parte injunction granted by Phillips J on 14 January 1993, should any appeal be contemplated. DISPOSITION: Applications dismissed. SOLICITORS: Lovell White Durrant; Barlow Lyde & Gilbert; Clyde & Co; Fishburn Boxer |