If the respondent can win only by suing overseas

If it appears that the respondent will fail in his claim on the merits if prevented from suing in the foreign court, it is sometimes suggested that the principles which determine whether an injunction may be granted are distinct. There is some authority to vouch for this separate treatment: the terminology of ‘single forum’ has its origins in British Airways Board v Laker Airways LtcT-^and Airbus Industrie GIE v Patel,²⁵¹ and in advancing the submission that it is unprincipled to draw a distinction in these terms it is acknowledged that the analysis parts company with statements in certain leading cases. That cannot be avoided.

In British Airways Board v Laker Airways Ltd, the cause of action relied on in the American courts by the respondent, the liquidator of Laker Airways Ltd, was created by the Clayton and Sherman Acts. An action in the English courts could not be founded on this legislation, for English conflicts rules, or public policy, or both, would have precluded it; a claim based on the English law of tort would almost certainly have failed. It was therefore contended that the respondent could sue in the United States or nowhere at all; and Lord Diplock appeared to regard this as justifying some form of departure from the principles applicable when an injunction was applied for in an ‘alternative forum’ case. In Airbus Industrie GIE v Patel, Lord Goff travelled some distance down this road, and noted that the general requirement, that England be the natural forum, could not be relied on to secure the interests of comity in this context. But he did not need to develop the particular rules which would apply to such cases. By contrast, the Court of Appeal in Midland Bank Pic v Laker Airways Ltd' had restrained the party bringing proceedings of a similar nature without being deflected by the fact that the liquidator would have been unable to prosecute a successful claim in the English courts; and in Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd, the Court of Appeal, though in the end it set aside the injunction, seemed to regard as irrelevant the probability that the respondent would win in Finland but lose if required to advance the same claim in England.

It is submitted that all that is required to bring a sense of balance and reason to this corner of the law is to express the Airbus v Patel criterion in terms of whether England is the natural forum for the resolution of the dispute between the parties, and to ignore arguments about who will win or lose if the order is made. Nothing more is needed. It is, after all, contrary to Spiliada Maritime Corporation v Cansulex Ltd²⁶* to refuse to order a stay of English proceedings just because the claimant will fare less well in the natural forum than he would in England: the law should not, and the test in its proper form does not, contain an outcome bias in favour of a claimant.^[1] Neither should the law on anti-suit injunctions contain an inherent preference for the respondent: the fact that he can win only in the foreign court should be as irrelevant as the fact, if it be the case, that the defendant to English proceedings can successfully defend only in England: one may perhaps call this a ‘defendant’s single forum’ case. Judicial impartiality does not allow for any significant departure from this approach.

It further follows that it was not helpful to characterise British Airways Board v Laker Airways Ltd and Airbus Industrie GIE v Patel as ‘single forum cases’. Nothing except discouraging legal advice prevented the liquidator of Laker Airways Ltd from suing British Airways, or Midland Bank, in England. It might be different if the English court would have no personal or subject matter jurisdiction at all, such as where the claim concerned title to foreign land. But such cases are rare, and are not what the nomenclature of ‘single forum cases’ currently seeks to describe.

• [1] [1987] AC 460. 2 It is different if, as in Lubbe v Cape Pic [2000] 1 WLR 1545, the difficulty facing one party is one of finance and funding. This has nothing to do with a preference for one party being more likely to succeed in one or the other court. 3 Or the prospect of the liquidator obtaining a much bigger payout for the creditors of Laker Airways Ltd if the conspiracy against it was dealt with by an American jury. 4 AXA Corporate Solutions Assurance SA v Weir Services Australia Pty Ltd [2016] EWHC 904 (Comm), [2016] Lloyd's Rep IR 578. 5 Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd [ 1989] 3 All ER 65. On the other hand, the court may consider that the respondent has behaved sufficiently badly that it is oppressive for the foreign proceedings to have been brought, and these will therefore be restrained without a question of election: CNA Insurance Co Ltd v Office Depot International [2005] EWHC 456 (Comm), [2005] Lloyd’s Rep IR 658. See also Dana Gas PJSC v Dana Gas Sukuk Ltd [2018] EWHC 277 (Comm).