Lloyd's Maritime and Commercial Law Quarterly
COMITY AND ANTI-SUIT INJUNCTIONS
Stephen Males*
Because anti-suit injunctions interfere with proceedings in foreign courts they raise an acute question of comity: should the English court grant an injunction or should it leave the applicant to challenge the exercise of jurisdiction in the foreign court? The House of Lords has recently underlined the importance of comity in the grant of such injunctions. This article examines three aspects of comity in this field. (1) What interest must the English court have in order to grant an injunction? (2) Which court should decide where a case should be tried? (3) Is comity relevant when the foreign proceedings are brought in breach of contract?
The Airbus case
“The case”, as Staughton, J., once observed, “is not itself a case about peanuts. It is about who shall decide a case about peanuts.”1 But such a question may be vital. In Airbus Industrie G.I.E. v. Patel
2 the contest was between Bangalore in India, where the air crash giving rise to the action had occurred, where the airline and airport authority were already being sued, and where a court of inquiry had reported; and Texas, where the French manufacturer of the aircraft had sold an aircraft in the past but which was otherwise unconnected with the dispute. An action in India might be subject to the endemic delay which affects litigation in that country; the claim against the manufacturer would depend on proof of negligence of which there was as yet no evidence; and any damages awarded would be relatively modest. In Texas, however, a claim could be made for punitive damages under product liability law; strict liability would apply; and the action could be funded by contingency fees.
The question for the House of Lords was whether the English court was entitled to referee that contest, by granting an anti-suit injunction to restrain the pursuit of the action in Texas. That depended on the relevance of judicial comity, once described as “shorthand for good neighbourliness, common courtesy and mutual respect for those who labour in adjoining judicial vineyards”.3 It held that, since the English court had “no interest in, or connection with, the matter in question”, it was not entitled so to act. The defendants, who were British citizens resident in England, were therefore permitted to proceed with their action against the aircraft manufacturer in Texas.
* Q.C., 20 Essex Street, Temple, London.
1. Tracomin SA v. Sudan Oil Seeds Co. Ltd [1983] 1 W.L.R. 662, 664.
2. [1998] 2 W.L.R. 686.
3. British Airways Board v. Laker Airways Ltd [1984] Q.B. 142, 185. But there is ample precedent for the existence of disputes between those who labour in vineyards: Matthew 20: 1 to 16.
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