C-159/02

TURNER

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 20 November 2003 1

Introduction the facts giving rise to this request for a preliminary ruling can be summarised as follows.

1. This request for a preliminary ruling from the House of Lords ought to serve to dispel all doubt as to the validity in the light of the Brussels Convention 2of what are commonly known as 'anti-suit injunctions'. These are injunctions whereby a party is 3. Gregory Paul Turner, who is of British prohibited — and non-compliance consti- nationality and is a solicitor entitled to tutes contempt of court — from commen- practise under English law, was employed cing or continuing proceedings before as legal adviser to a group of companies by another judicial authority, even one abroad. one of the companies in the group. In the present case, the purpose of the injunction is to prevent abuse of process by such a party in the form of vexatious litigation.

The group, known as the Chequepoint Group, is managed by Mr Grovit and comprises several companies, incorporated in a number of countries, including, apart from China Security Ltd, incorporated in The facts of the case before the national Hong Kong, which had employed court Mr Turner under contract, Harada Ltd, whose registered office is in the United Kingdom, and Changepoint SA, whose registered office is in Spain. 2. As explained by Lord Hobhouse of Woodborough in the order for reference,

1 — Original language: Spanish. 2 — Convention on the enforcement of judgments i n civil and commercial matters (hereinafter 'the Brussels Convention or simply 'the Convention'). Consolidated version relevant to His role as an adviser included dealing with this case published in OJ 1990 C 189, p. 1. and advising on real property and commer-

Mr Turner received the writ of summons around 15 December but refused to accept 5. After working in Madrid for 35 days, service. Mr Turner asked to terminate his contact with Harada and instituted proceedings against that company before the Employ- ment Tribunal, London, which has jurisdic- tion in such matters. He claimed that efforts had been made to implicate him in illegal conduct involving irregularities relating to deductions in respect of social security. In the statement of claim, formulated at a Such machinations were, in the claimant's later stage, he was called on to pay a very view, tantamount to unfair dismissal. considerable sum (more than ESP 85 million) for failing properly to provide to Changepoint SA the services required by his contract. Seven examples were given of allegedly inadequate fulfilment by Mr Turner of his obligations, it also being contended that he had improperly disap- peared from the Madrid office without 6. The Employment Tribunal dismissed an giving notice and had then made a claim objection of lack of jurisdiction raised by in the United Kingdom on the basis of Harada and that decision was upheld on unfounded allegations which concealed the appeal. truth from the English tribunal.

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'(1) take all necessary steps forthwith to discontinue or to procure the discon- tinuance of the claims made against the Claimant in proceedings commenced by one or more of the Defendants in 9. The Court of Appeal took the view that the Court of First Instance, Madrid, the sole purpose of the proceedings com- Court 67, under Proceedings number menced in Madrid was to intimidate and 70/98; exert pressure on a party and it therefore considered that it was entitled to require Changepoint and Harada, by injunction, not to continue the foreign proceedings. It can be inferred from the judgment of the Court of Appeal that it considered that, in (2) be restrained until further Order from the absence of an injunction, the defendants taking, or procuring any other person would continue to behave improperly. or persons to take, any step in the action commenced by one or more of the Defendants in the Court of First Instance Madrid, Court 67, under Proceedings number 70/98, except to carry out paragraph 3(1) of this Order hereinabove;

3 — A superior court with authority to issue injunctions (see 10. The defendants appealed to the House point 11 below). of Lords.

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The applicable domestic law ceedings, regardless of whether they are brought in England and Wales or abroad.

11. Restraining orders, like the injunction issued in the main proceedings, now have as their legal basis section 37(1) of the Supreme Court Act, which in broad terms states:

12. United Kingdom judicial decisions limit the cases in which it is appropriate to grant an injunction. It is necessary to establish that the addressee of the injunction has 'Is it inconsistent with the Convention on engaged in wrongful conduct and that the Jurisdiction and the Enforcement of Judg- applicant has a legitimate interest in seeking ments in Civil and Commercial Matters to prevent it. signed at Brussels on 2 7 September 1968 (subsequently acceded to by the United Kingdom) to grant restraining orders against defendants who are threatening to commence or continue legal proceedings in another Convention country when those 13. Such protection is available to victims defendants are acting in bad faith with the of abuse of process, that is to say those who intent and p u r p o s e of frustrating or are the butt of unscrupulous behaviour in obstructing proceedings properly before the form of vexatious or oppressive pro- the English courts?'

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(a) The applicant is a party to existing legal proceedings in England;

16. Similarly, if there are proceedings before an English court which it is uncon- scionable for a party to pursue, such (b) The defendants have in bad faith proceedings will be stayed. commenced and propose to prosecute

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proceedings against the applicant in all of them are empowered to issue restrain- another jurisdiction for the purpose of ing orders. According to the House of frustrating or obstructing the proceed- Lords, it is not the purpose of the Conven- ings pending in England; tion to require uniformity but to have clear rules governing international jurisdiction.

(c) The court considers that it is necessary in order to protect the legitimate interest of the applicant in the English proceedings to grant the applicant a 22. By way of corollary, it adds that if the restraining order against the defen- question of interpretation fell to be decided dants. by the House of Lords alone, it would take the view that there was no incompatibility with the Convention.

Of those who presented oral argument, only the United Kingdom Government aligns itself with the view of the referring court, which considers them to be compa- tible. 28. The United Kingdom Government adds that only an English court can give a decision on the need to preserve the integrity of proceedings conducted in Eng- land. 26. Such restraining orders date back to the 15th century, although their signifi- cance has evolved, always being linked to the concept of equity and inspired by the views of common-law judges. According to the United Kingdom Government, anti-suit 29. Finally, it states that orders of this kind injunctions (namely, orders to discontinue help to attain a Brussels Convention objec- or preclude proceedings) are not addressed tive, namely that of reducing the number of to a judicial authority of another State, but courts with jurisdiction to consider the to a person amenable to the jurisdiction of same dispute. the court which issues them. For that reason, like the House of Lords, it considers that the term 'anti-suit injunction' is a misnomer and prefers the term 'restraining orders'. In its view, therefore, they do not represent a pronouncement by an English court as to the jurisdiction of its foreign 30. The arguments against compatibility counterpart, but rather a procedural mea- with the Convention put forward in the sure of an organisational nature similar to course of these preliminary proceedings that approved by the Court of Justice in the stem from the idea that one of the pillars Van Uden case. 4The Brussels Convention of that international instrument is the reciprocal trust established between the various national legal systems, upon which the English restraining orders would seem 4 — Case C-391/95 Van Uden Maritime [1998] ECR I-7091. to cast doubt.

5 — This view is shared by leading authors. See: Dohm, Ch.: 'Die Einrede ausländischer Rechtshängigkeit im deutschen inter- nationalen Zivilprozeßrecht', Berlin, 1996, p. 207; Jasper, D.: Forum Shopping in England und Deutschland, Berlin, 1990, p. 90: Jayme, E. and Kohler, Ch.: 'Europäisches A comparative review shows that only legal Kollisionsrecht 1994: Quellenpluralismus und offene Kon- systems within the common-law tradition traste', Praxis des internationalen Privat- und Verfahrens- rechts (IPRAX), 1994, p. 405, in particular at p. 412. allow such orders. An imbalance of this 6 — By way of illustration, the second recital in the preamble to kind goes against the scheme of the Con- Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of vention, which does not incorporate any judgments in civil and commercial matters states: 'Mutual trust in the administration of justice in the Community mechanism capable of resolving a conflict justifies judgments given in a Member State being recognised between a restraining order from an English automatically without the need for any procedure except in cases of dispute'. The 17th recital adds: 'By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued 7 — A situation which would also infringe upon the subjective virtually automatically after purely formal checks of the right, which a litigant may infer from the Covention, to documents supplied, without there being any possibility for determine which court to seise. See, to that effect, the court to raise of its own motion any of the grounds for Kropholler, J.: Europäisches Zivilprozeßrecht, 7th ed., non-enforcement provided for by this Regulation'. Heidelberg, 2002, pp. 345 and 396 ff.

court, prompted by the abusive nature of 34. The United Kingdom Government, the foreign proceedings, and a possibly following the House of Lords, insists, of conflicting assessment which the Spanish course, that the orders at issue are not court might arrive at. It is difficult to accept concerned with the jurisdiction of the that a State which issues an injunction of Spanish court; they are addressed only to this kind could unilaterally attribute to the the party which commenced proceedings jurisdiction which it is protecting an exclu- with the sole object of frustrating the

case. It has been recognised in American legal literature 12 and case-law 13 that the 8 — Muir-Watt, H., Des conceptions divergentes du droit fondamental d'accéder à la justice dans l'espace convention- nel européen. Revue général des procédures, No 4, October- December 1999, p. 761. 11 —Jackson, D. C. acknowledges in Enforcement of Maritime 9 — To the same effect, see: Hau, W.: Zum Verhältnis von Claims, LLP, 3rd edition, 2000, that 'It is, however, now Art 21 zu Art 22 EuGVÜ, IPrax, 1996, p. 44, in particular recognised that it does reflect indirect interference in the at p. 48. Hartley, T. C: 'Anti-suit injunctions and the power of the relevant foreign court'. Brussels Jurisdiction and Judgments Convention', Interna- 12 — Bermann, G.A_, 'The use of anti-suit injunction in tional and Comparative Law Quarterly, January 2000, international litigation', Columbia Journal of Transna- volume 49, part I, p. 171. Although he vigorously defends tional Law, vol. 28, 1990, pp. 630 and 631. such orders, ne explicitly concedes that the application of the 13 — In the case of Peck v Jennes 48 U.S_ (7 How.) pp. 612, 624- Convention rules has its own mechanism, of which such measures do not form part. 625, cited by Collins, L, Essays in International Litigation on the conflict of Laws, Clarendon Press, 1994, p. 112, the 10 — See Hartley, T.C_, 'Comity and the Use of Anti-suit following is stated: '.

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distinction between an order in personam a judge who had issued an anti-suit injunc- addressed to a litigant and an order tion might be obliged to grant an order for addressed to a foreign court is indeed a enforcement of a judgment delivered in very fine one. spite of his having expressly imposed a prohibition. The English court, at some time or another, must verify the jurisdiction of the foreign court before issuing the restraining order, and that clearly goes against the letter, spirit and purpose of the Brussels Convention.

35. The effects of restraining orders are similar to those produced by application of the doctrine of forum non conveniens, whereby a decision may be made not to hear actions which have been brought in an inappropriate forum. Likewise, restraining injunctions, however much they are addressed to the parties and not to a 37. Finally, it is argued that restraining judicial authority, presuppose some assess- orders are remedies of a procedural nature, ment of the appropriateness of bringing an an area not covered by the Brussels Con- action before a specific judicial authority. vention. Such measures are precautionary However, save in certain exceptional cases or protective and their compatibility with which are not relevant here, the Convention the European system is beyond all doubt. does not allow review of the jurisdiction of a court by a judicial authority of another contracting state. 14

The Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as precluding the judicial authorities of a Contracting State from issuing orders to litigants restraining them from commencing or continuing proceedings before judicial authorities of other Contracting States.

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