EUPillar Through Transport Mutual Insurance Association v New India [2004] EWCA Civ 1598

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. The English High Court went on to grant an anti-suit injunction which restrained the defendant from bringing court proceedings in Finland. 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] Although the English court interpretation of Brussels I flies in the face of the subsequent judgment in West Tankers, jurisdiction was exercised under the English common law.