EUPillar Through Transport Mutual Insurance Association v New India [2003] EWHC 3158 (Comm)

Summary

There was a contract for carriage of goods. The goods were insured against loss or damage in transit by the defendants, New India Insurance Company. Following a compromise between the cargo owner and the New India, the benefits of any claim by the cargo owner against the carrier passed onto New India. The claimant, Through Transport Mutual Insurance (“the Club”), had provided insurance to the carrier. In spite of the existence of an arbitration clause, New India began proceedings against the Club in Finland under Article 10 of Brussels I. The Finnish proceedings were initiate on 16th Dec 2002. The Club challenged the jurisdiction of the Finnish courts, and brought proceedings in England seeking a declaration that New India was bound to bring any claim in arbitration. Further, it sought an anti-suit injunction. On 18th December 2003, Mr Justice Moore-Bick declared that New India was bound by the arbitration agreement, and had to refer certain claims to arbitration in England. It went on to grant an anti-suit injunction which restrained the defendant from bringing court proceedings in Finland: “34. I need hardly say that this court attaches the greatest importance to judicial comity and is very conscious of the respect due to the courts of other countries. It is for that reason that it cannot be emphasised too strongly that orders made in support of agreements to refer disputes to arbitration are directed at the defendant and not in any sense at the court in which he has chosen to commence proceedings. The question for the court in the present case is whether it should make an order preventing New India from disregarding the arbitration clause or whether it should allow it to do so and leave the Club to resist enforcement and pursue any remedy it may have for its breach. […] 43. In these circumstances I am satisfied that the right course is to grant the relief which the Club seeks restraining New India from pursuing the claim in Finland.” [34 and 43]. On 2nd December 2004, following an appeal, the Court of Appeal upheld the Declaration, but held that the High Court should not have granted an anti-suit injunction as it was not just and convenient to restrain New India from pursuing a claim under the Finish Act in Finland. In this context, it was held: “92 […] We do not accept [the] submission that the court should not grant an anti-suit injunction in a case where a party to an arbitration agreement begins proceedings in the courts of a contracting state in breach of an arbitration clause in a contract. […] 97 […] this court is in our opinion free to form its own conclusion on the question whether to grant an anti-suit injunction on the facts of this case. We have reached the conclusion that, having regard to all the circumstances of the case, including those set out above and the reasoning underlying the approach of the ECJ in Turner v Grovit, this was not a case in which, in the language of section 37(1) of the Supreme Court Act 1981, it was or would be just and convenient to grant an injunction restraining New India from pursuing a claim under the Finnish Act in Finland.” [92 and 97] It was a pre-West Tankers judgment. Jurisdiction was exercised under the English common law.