Off to Luxembourg again: Anti-Suit Injunctions and a "Right to be Sued" in your own domicile (Part Deux)

I have written previously about the 23 July 2019 decision of Lavender J. in Gray v Hurley [2019] EWHC 1972 (QB), in which the English court was asked by an English domiciled claimant to grant an anti-suit injunction to stop proceedings taking place in New Zealand. The injunction was sought on the basis that Article 4(1) of the Brussels I (Recast) Regulation ("Judgments Regulation") obliged the defendant not to sue the claimant anywhere other than in their jurisdiction of domicile. For the facts of the case see: https://www.39essex.com/hurley-burly-anti-suit-injunctions-and-a-right-to-be-sued-in-your-own-domicile-under-article-4-of-the-judgments-regulation/)

In Gray, Lavender J. refused to grant the injunction, adopting the same approach found in earlier obiter dicta at first instance decisions that held there was no such right. That decision was appealed with the permission of the judgment.

3 December 2019: Decision of the Court of Appeal

On 3 December 2019, the Court of Appeal (Patten, Hickinbottom and Peter Jackson LJJ), handed down the judgment on the claimant's appeal: [2019] EWCA Civ 2222.

A central question of the appeal was the proper interpretation to be given to Article 4(1) of the Judgment Regulation, which provides that:

"1.       Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State".

Before the Court of Appeal, the claimant, Ms Gray, argued that Article 4(1) provided her with the right not to be sued outside England, where she is domiciled, and the English court is obliged to give effect to this right by the grant of an anti-suit injunction to restrain proceedings in a third State. This was the substantive question to be considered on the meaning and consequence of Article 4(1).

However, before that question was determined, the claimant further argued that it was impermissible for the first instance judge or the Court of Appeal to take a different view because of binding authority in two earlier Court of Appeal decisions, namely Samengo-Turner v J & H Marsh McLennan (Services) Ltd [2007] EWCA Civ 723 ("Samengo-Turner") which had been followed in Petter v EMC Europe Ltd [2015] EWCA Civ 828 ("Petter").

The Court of Appeal dealt with this question first, and noted that they were not concerned at this point with whether Samengo-Turner was rightly decided, but rather with what it actually decided.

The claimant argued that the ratio of Samengo-Turner included the proposition that English-domiciled employees should have their right to be sued by their employer in England protected by an anti-suit injunction. But it was also suggested that it established the much wider proposition that a person with a right to be sued in England "… should almost invariably have that right protected by an anti-suit injunction". As the Court of Appeal noted:

"That, as the Judge observed, is a strong thing to say. It is all the stronger where it is said that the proposition holds good even if the cause of action in the third State jurisdiction is a completely different one and even if it is a cause of action that could not be brought in this jurisdiction" (para. 41).

The Court of Appeal did not accept the Claimant's broader interpretation of Samengo-Turner.

However, that left the substantive questions of the scope of Article 4(1) and the remedy for a "breach" of that provision.

Here, the Court of Appeal considered that the Claimant's interpretation of the meaning and effect of Article 4(1) is a possible one, but was not one they would wish to adopt in the present case "unless required to do so" (para. 50). Accordingly, the Court of Appeal concluded that before reaching a final decision on the appeal, a reference to the CJEU in Luxembourg was required:

"… [w]e cannot say that in the context of these proceedings the meaning [of] Article 4(1) is acte clair. It is an important provision whose correct meaning was not obvious to the Judge (who gave permission to appeal) and cannot be regarded as obvious by this court or by other courts. We shall therefore refer the matter to the Court of Justice for a preliminary ruling before proceeding to a final determination of this appeal. In the meantime, we shall stay the appeal and give any necessary directions in relation to interim measures" (para. 53).

The CJEU may have thought they had seen the back of English anti-suit injunctions. But they spoke too soon.