GLENCORE INTERNATIONAL AG v EXTER SHIPPING LTD STANLEY SHIPPING LTD WYNDHAM SHIPPING LTD CREST SHIPPING LTD [2002] EWCA Civ 528

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr Justice Moore-Bick)
[2002] EWCA Civ 528Case No Case No: A3/2001/2607Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
GLENCORE INTERNATIONAL AGRespondentEXTER SHIPPING LTD STANLEY SHIPPING LTD WYNDHAM SHIPPING LTD CREST SHIPPING LTDAppellants
Before
Lord Justice Robert WalkerLord Justice RixIain Milligan QC and Richard Southern (instructed by Messrs Clyde & Co) for the RespondentPeregrine Simon QC and Rachel Toney (instructed by Messrs Holmes Hardingham) for the AppellantsDate 18 April 2002

Lord Justice Rix:

This

[1]appeal essentially raises the question whether there is jurisdiction in the English court to impose an anti-suit injunction against four foreign shipowners in respect of their complaint in the United States District Court for the Northern District of Georgia. The shipowners have participated in complex multi-party litigation in England, known as the Metro litigation, but they submit that, partly because their participation was always limited and partly because over time that participation has been still further eroded by settlement and discontinuance, the English court lacks jurisdiction to make the order complained of.[2]The argument on jurisdiction has been complicated by the use of the concept in three or even four different senses, which need to be kept distinct. The first is territorial jurisdiction or in personam jurisdiction, which raises the question whether for the purpose of the injunction granted the court has jurisdiction over each or any of the four shipowners; or to put the matter the other way round, whether for these purposes the shipowners are amenable to the jurisdiction of the court. It is submitted on their behalf that the position may differ from one of them to the other. Such a question only arises because the shipowners are foreign. The second sense would, I think, apply even if the shipowners were English parties and raises the question whether the litigation to which the shipowners and Glencore are parties enables Glencore on a procedural level to claim an anti-suit injunction against them. This is said by the shipowners to depend on technical questions about rules of procedure, which Glencore submits may be supplemented in case of need by the inherent jurisdiction of the court. There is some uncertainty as to whether these first and second senses are properly separate. The third sense raises the question as to the source of what I shall call the power to grant an anti-suit injunction. I do not think that it is disputed that the modern source is statutory, now found in section 37(1) of the Supreme Court Act 1981. And the fourth is concerned with the jurisdictional conditions precedent which the jurisprudence of the courts has imposed on the use of section 37(1) to grant anti-suit injunctions, primarily the requirement of unconscionable conduct. That depends on an analysis of the structure of the litigation both here and in Georgia.[3]The judgment appealed from is that of Moore-Bick J, who granted the injunction sought against all four shipowners. His judgment was handed down on 8 November 2001. Since then, there have been two further decisions in the House of Lords on the subject of the anti-suit injunction, in Donohue v. Armco Inc [2002] 1 Lloyd's Rep 425 and Turner v. Grovit [2002] 1 WLR 107 . Timing difficulties have also caused a change of representation on both sides, which may have brought in its train some change of emphasis. The parties and the Metro litigation[4]The applicant (here the respondent) is Glencore International AG ("Glencore") and the parties injuncted (here the appellants) are Crest Shipping Ltd ("Crest", the owner of the Epic ), Exter Shipping Ltd ("Exter", the owner of the Shoko ), Stanley Shipping Ltd ("Stanley", the owner of the Cherry ) and Wyndham Shipping Ltd ("Wyndham", the owner of the Addax ). Each of these vessels was employed on several occasions in carrying cargoes of fuel oil to and from a floating storage and blending facility operated by Metro Trading International Inc ("MTI") off Fujairah for some years prior to MTI's collapse in February 1998. At the time of that collapse those vessels were in the course of performing time charters for MTI as charterer. The vessels (and others also involved) were managed by Dynacom Tankers Management Ltd ("Dynacom").[5]I gratefully adopt the judge's description of the so-called Metro litigation to which MTI's collapse gave rise. A fuller description can be found in his judgments on Phases 1 and 2 of that litigation, see [2001] 1 Lloyd's Rep 283 (Phase 1) and 1 August 2001 (unreported, Phase 2).[6]Glencore was the largest among several oil traders which used MTI's facilities, and when it was discovered that the stocks held at Fujairah fell massively short (by some 2 million tonnes) of the total amount claimed by those such as Glencore asserting title to such oil, a receivership order was made by Tuckey J in the Commercial Court on 3 March 1998. Under that order the receivers were given power to get in and sell the oil remaining in storage as well as cargoes of fuel oil afloat ex storage which had been sold by MTI at a time when the buyers had been warned that its title to sell was disputed. About $50 million has been collected in this way and is held by the receivers for the benefit of the competing claimants, who include not only oil companies such as Glencore, but banks who financed MTI and the cargoes afloat, purchasers of the oil, shipowners such as members of the Dynacom group, and insurers. In all 35 different actions were started in this jurisdiction alone, involving over 50 parties.[7]The management of this litigation raised difficult problems. In November 1999, by which time all relevant jurisdictional challenges had been resolved as a preliminary step, a two day case management conference, at which all litigants including the four shipowners [1] were represented, established a strategy for the litigation's future conduct. The strategy was to resolve the parties' disputes not on a case by case basis, nor by selecting individual actions as test cases (as in the Lloyd's litigation), but by tackling the issues across the whole extent of the litigation in a number of phased trials. The issues of Phase 1 were then defined, and the issues of Phase 2 formulated for future definition. All parties were permitted to be represented at the various phases in a manner designed to avoid unnecessary duplication. It is not in dispute that, although the various actions were not formally consolidated, all the parties to them were to be bound by the determination of the issues, whether they actively participated in them or not.[8]Phase 1, which dealt with issues of proper law and the law relating to the passing of title, both under English law and the law of Fujairah, was tried in the summer of 2000. Phase 2, which dealt with issues relating to the relationship of Glencore and MTI, was tried in the spring of 2001. Phase 3, which will deal primarily with the question of the banks' security interests in stocks of oil held by MTI, has been fixed for trial later this year. Later phases will deal with other outstanding issues.[9]The essence of the judgment in Phase 2 is that Glencore owned the oil at least up to its delivery into storage off Fujairah and at all times up to its sale by Glencore to MTI by ITT (in tank transfer) contract; that until that transfer MTI was not and knew that it was not entitled to use or dispose of the oil; and thus that any such prior dealings with the oil by MTI were wrongful. The question of MTI's actual (express or implied) authority to sell or deliver to third parties such oil in which Glencore retained title was answered to the effect that MTI had no such authority, and that Glencore did not know that MTI had been disposing of such oil. All this was in the context of an overarching agreement between Glencore and MTI regulating such matters (referred to as "JV2").[10]The four shipowners (as well as other Dynacom group parties) have participated throughout these proceedings, in which they have been represented by Holmes Hardingham and counsel. They participated fully in the hearings which led to the making of the receivership order, at further directions hearings in the summer of 1999 dealing with jurisdiction, at the key case management conferences in November 1999 and (relating to Phase 2 and later phases) in December 2000, and at an application in November 2000 to adjourn the Phase 2 trial. Mr Gee QC represented Stanley at the Phase 1 trial and Stanley and Exter at the Phase 2 trial. Exter, Crest and Wyndham did not actively participate in the Phase 1 trial, nor Crest and Wyndham in the Phase 2 trial, but they are all bound by the results, as they accept. Actions 1998 Folios 219, 273 and 654[11]So much for a global view of the Metro litigation to date. It is now necessary to consider more closely the actions within the Metro litigation in which the shipowners are named parties.[12]The earliest of them is Folio 219, indeed this precedes even Tuckey J's receivership order, having been commenced on 16 February 1998. In it the shipowners (and three other owners within the Dynacom group) claim unpaid hire and bunker charges and/or damages under their respective time charters with MTI. It was an immediate response to news of MTI's apparent insolvency. On the same day these claimants obtained a worldwide Mareva injunction from Toulson J against MTI in the sum of US$2.8 million. Toulson J's order specifically covered the oil cargoes currently being carried by the Cherry (Stanley) and another Dynacom vessel (the Gyoko ) as well as the oil at the Fujairah facility. In other words, by obtaining this order the shipowners were asserting that title in such oil belonged to MTI.[13]Within a few days, on 20 February 1998, Glencore obtained an order from Cresswell J inter partes granting it leave to intervene and be joined as a party in the shipowners' action Folio 219 under RSC Order 15 Rule 6(2)(b) on the basis that there was an issue as to title in the oil between those claimants and Glencore. It was for this reason that Folio 219 was ordered to be heard concurrently with all other actions as part of the receivership order; and all orders made in the Metro litigation have covered Folio 219. If pleadings in each of the actions of the Metro litigation had followed a conventional form, then in due course issues as to title to the oil would have arisen between the shipowners as claimants and Glencore as defendant, and Glencore would have been able to plead a counterclaim claiming title to the oil on the Cherry (and the Gyoko ) and in storage and possibly on other vessels. As it is, the need for such formality was overtaken by the case management of the Metro litigation as a whole, which among other expedients sought economy and speed in preparation for the phased issues.[14]Folio 273 followed a few days later. This is Glencore's main action and in general asserts its claim to the oil in storage and to damages for the conversion of oil cargoes sold by MTI to third parties. Among other defendants it names Stanley (the owners of the Cherry ), against whom Glencore claims damages for breach of contract and/or tort in respect of two shipments. The first, carried under a bill of lading dated 11 January 1998, ought, as is alleged, to have been delivered into storage at Fujairah but was in substantial part diverted and sold to persons unknown. The other was carried under a bill of lading dated 25 January 1998 ex storage at Fujairah, was on the high seas at the time of issue of Glencore's writ and soon became expressly subject to the receivership order. In defiance of that order Stanley refused to deliver up that cargo to the receivers and instead sold it (under the auspices of a Greek judicial sale, the circumstances of which are disputed) to an associate company.[15]Stanley's "bullet" points of defence and counterclaim dated October 1999 and amended in August 2000 pleaded that Glencore and MTI were (unknown to Stanley) equal partners in a joint venture amounting to a partnership for the purchase and sale of oil, under which MTI had actual authority from Glencore to dispose of the oil to third parties including that carried on the Cherry , and to enter into the Cherry time charter. Alternatively, even if Glencore was the sole owner of the oil, MTI had actual or apparent authority to dispose of the oil. In any event Glencore's title was disputed. Stanley also counterclaimed an indemnity from Glencore in respect of loss and damage incurred by reason of carrying out MTI's (and thus Glencore's) instructions whether pursuant to or outside the time charter. That loss and damage included(a) any liability to Glencore and(b) the legal expenses and loss of use of the Cherry while she was under arrest by Glencore in Fiumicino Roads, Italy.[16]The joint venture pleaded by Stanley in its amended defence and counterclaim was a wide-ranging one, involving Metro Oil Corporation, an associate company of MTI, which operated a refinery in Fujairah. At the Phase 2 trial, however, Stanley and Exter did not pursue that wider allegation, but restricted themselves to a narrower joint venture ("JV2") dealing with oil trading from about July 1996. The expression "JV2" in fact comes from the documents in which the contractual relationship between Glencore and MTI is described. The Phase 2 judgment shows that it is a misnomer to call it a joint venture at all.[17]Folio 654 is an admiralty action in rem served in June 1998 in which Glencore arrested the Shoko at Milford Haven and claims against Exter, as her owner, in respect of a cargo of oil which had been due for delivery into storage at Fujairah but was diverted to Singapore and sold to third parties. By its defence and counterclaim Exter also pleaded that MTI had actual or apparent authority to dispose of the cargo and also counterclaimed an indemnity from Glencore in respect of any consequences of following MTI's (and therefore Glencore's) orders, including the losses caused by the detention of the vessel during arrest. Glencore's Singapore actions[18]Glencore arrested the Cherry (Stanley), the Epic (Crest), and the Addax (Wyndham) in Singapore in December 1998/January 1999 in respect of the non-delivery into storage at Fujairah of various cargoes of oil. The claims are brought in contract and tort. The three owners have each defended and counterclaimed in these proceedings on essentially the same basis as Stanley's and/or Exter's pleadings in England, and have also amended their pleadings following Moore-Bick J's Phase 2 judgment. Thus it is said that MTI had actual or apparent authority from Glencore to dispose of the cargoes; that there existed a joint venture between Glencore and MTI for the sale of such cargoes; that pursuant to such joint venture ("JV2") Glencore had sold the cargoes to MTI under an ITT contract (this is said to be res judicata as a result of the Phase 2 judgment); and that Glencore's arrest was malicious and made in bad faith (the tort of wrongful arrest) as a result of which the owners have respectively incurred and counterclaim the cost of the proceedings and the losses caused by the detention to their vessels while under arrest. A similar plea of wrongful arrest has never been made in Folio 654 under which Exter's Shoko was arrested in Milford Haven.[19]Glencore wished to bring these disputes within the Metro litigation in London and made an offer to the three shipowners to enable them to do so. It depended on the transfer of Glencore's security in the Singapore proceedings. The shipowners were unwilling. Glencore has therefore been compelled to fight these issues in Singapore as well as in London, since it is only in Singapore that it has security for these claims. The trial in Singapore took place towards the end of last year. At the time of the appeal hearing herein the judgment of the Singapore court was awaited. [2] The Georgia proceedings[20]Although it is against the Georgia proceedings that Glencore seeks the protection of its application for an anti-suit injunction, it has first been necessary to describe the background to it in England (and in Singapore).[21]The Georgia complaint was issued on 23 July 2001 and notified to Glencore "out of the blue" on the next day. That was very shortly before the judgment in Phase 2 was handed down, which occurred on 1 August.[22]The claimants in Georgia are the four shipowners. Their claims are in respect of the losses said to arise out of the arrest of the four ships in Milford Haven and Singapore respectively. Thus sums claimed in Exter's counterclaim in Folio 654, and in the other three shipowners' counterclaims in the Singapore actions are the subject-matter of the four shipowners' claim in Georgia.[23]The complaint is brought against MTI, Glencore and the "Metro-Glencore joint venture". Apparently it may be possible in Georgia to sue a joint venture as a separate legal entity. The essence of the complaint is that the defendants are liable to the shipowners' claim either because they have acted wrongfully or because, whether they have acted wrongfully or not, they are liable to indemnify the shipowners for the consequences of actions carried out at their request.[24]The complaint begins by alleging that the joint venture was conceived and operated at least in part from the offices of Metro USA ("MUSA"), a Georgia company, through its principal Mr Ed Griffin, and that MUSA played an "active role" in managing and administering it. That is alleged no doubt for the purposes of attracting jurisdiction in Georgia. The joint venture described is of the more wide ranging kind pleaded in Stanley's amended bullet points of defence and counterclaim but not pursued at the Phase 2 trial: but be that as it may, the only part of the joint venture pleaded which seems to be relevant is what was in any event referred to in Phase 2 as "JV2" (see the complaint at para 20, which refers to "the evolving fuel oil trading activity" which "[a]s of approximately July 1996…began to be referred to by the joint-venture partners as "JV2""). As to JV2 it is said that the purchasing of oil was done by MTI as a "front" for Glencore in order to maintain Glencore's involvement as a secret; that there were then "dummy" sales by MTI to Glencore for which Glencore paid nothing, while onward sales to third parties on behalf of the joint venture were done (usually) in MTI's sole name; that the very existence of the joint venture was unknown to such third parties; that the shipowners were deceived into thinking that MTI was the owner and/or seller of such cargoes as were shipped on their vessels; that for these purposes Glencore knowingly allowed and acquiesced in MTI's exclusive dealing with the shipowners "using for this purpose a façade of fraudulent documents and back to back contracts, intended to deceive third parties" including the shipowners; and that in any event MTI had actual authority as Glencore's partner and agent to give instructions to the shipowners concerning the cargoes (for their "loading, carriage, disposition, blending, delivery and/or discharge").[25]Against that alleged factual background, the shipowners plead five causes of action. The first ("common law indemnity") is that the defendants are liable to indemnify the shipowners for all consequences to them of having "lawfully followed the instructions of MTI" as agent of the joint venture with regard to the disposition of the cargoes, and in ignorance "based upon the wrongful concealment by the Metro-Glencore Joint Venture of the true ownership of the cargo". As a result the shipowners – "have been claimed against by reason of their relationship to the cargo as a carrier, and not due to any fault on the part of the Plaintiffs, and have suffered damages including but not limited to the loss of use of their vessels and attorneys fees expended in attempts to release said vessels, and are owed indemnity in full for such damages from Defendants" (para 111).[26]The second cause of action is "contract indemnity" which relies on the employment and indemnity clause contained in the MTI time charter made with the respective shipowners: such time charters, being entered into in furtherance of the joint venture, are said to be the responsibility of all three defendants. This claim is limited to the losses due to arrest. The third cause of action is in fraud ("suppression of material facts amounting to fraud"). This claim, like that under the first cause of action, is for damages "including, but not limited to" the losses due to arrest. The fourth cause of action is again in fraud ("misrepresentation of a material fact amounting to legal fraud"). This alleges that the defendants "wilfully and intentionally misrepresented to Plaintiffs that MTI was acting for its own account…" and the defendants are said to be liable "for all of Plaintiffs' damages flowing therefrom". The fifth and final cause of action is in conspiracy (viz that the defendants "all intentionally conspired to deceive third parties…"). The complaint then ends with a prayer for relief ("and such other relief…as seems just") viz damages in the amounts claimed for losses in connection with the arrests and detention of the vessels in England and Singapore and an indemnity for legal fees spent defending such actions, as well as "punitive damages". There is a demand for trial by jury.[27]I have sought in the above two paragraphs to reproduce the essence of a document of 42 pages. An analysis of the complaint against the background of the English and Singapore litigation is not easy. It is submitted on behalf of Glencore that whereas the shipowners' counterclaims in Singapore are premised on the tort of wrongful arrest, the claims in Georgia are premised on the vessels having been validly arrested. It is true that there is no express reliance on a tort of wrongful arrest (a tort committed if anywhere in England and Singapore). But I would not agree that the underlying premise is that the vessels were validly arrested. On the contrary, the whole basis of the complaint is that everything done by the shipowners was "lawful", which is inconsistent with any premise that they wrongfully interfered with Glencore's cargoes in breach of any contractual or tortious duty. And, while nothing is said of Glencore's bad faith in arresting their vessels, the gravamen of their complaint is that Glencore (and MTI) acted in bad faith, knowingly, intentionally and wilfully, in deceiving them. It must follow, if the shipowners were able to substantiate their case, that Glencore knew that its arrests were without foundation. Obscurely, however, it is said at one point that the shipowners were deceived into thinking that MTI was the owner and/or seller of the cargoes, which suggests that perhaps the shipowners were accepting that MTI was not the owner and/or seller and that Glencore was: but that is inconsistent with the complaint as a whole. Indeed, the shipowners have made it clear for the purposes of resisting Glencore's application and again on this appeal that they recognise that the complaint would have to be amended to accept Phase 2's determination that title in the oil remained (at any rate until ITT contract) in Glencore.[28]Another difficulty and obscurity about the complaint relates to the damages sought by it. In its final prayer for relief, the claim is quantified by reference to the shipowners' losses due to their vessels' detention while under arrest (and legal fees in consequence of such arrests). In the body of the complaint, however, the logic and the language of the plea (with the exception of the second cause of action) allows for the extension of the claim in damages to all losses ("including but not limited to…") suffered by MTI as a result of acting in ignorance of the scheme of the joint venture: and that would in theory include the losses suffered by reason of any liability to Glencore itself for misdelivery of its cargoes.[29]Yet another problem about the complaint is why it emerged when it did, well after the trial of Phase 2 and just a week or so before judgment in Phase 2. The shipowners' evidence (Mr Houghton's second witness statement at para 47(d)) says that "Without in any way intending to waive or in fact waiving privilege, it may assist the Court to know that the US action is the result of long deliberation and research, which was concluded after the conclusion of the Phase 2 trial. That is the reason why it has been commenced at this stage."[30]However, when Mr Peregrine Simon QC, who represented the shipowners on this appeal, was asked by the court why the US complaint did not wait just a little longer for the Phase 2 judgment, especially as it is now said that the shipowners recognise the need to abide by its findings and thus to amend the complaint to bring it into line with that judgment, he replied to the effect that the complaint was intended to be consistent with Phase 2, but otherwise was not in a position to assist the court. In so far as that was an invocation of privilege, I do not draw any adverse inference from it. But of course the court is entitled to look for an explanation for the shipowners' conduct, and in the absence of a satisfactory explanation, to draw such inferences as appropriate from all the circumstances of the case. As it is, the shipowners did advance evidence as to the timing of the Georgia complaint, both in the passage from Mr Houghton's second witness statement cited above and in his third witness statement, from which it would appear that the shipowners have had it in mind to bring their action in Georgia for some considerable time, and at the very time that Stanley and Exter were participating in Phase 2. For in his third statement Mr Houghton went on to say that during the Phase 2 trial Stanley's and Exter's counsel "deliberately and knowingly limited their cross-examination to the fuel oil joint venture, since that was what was in issue in Phase 2": this was said against the background of Mr Houghton's submission that the joint venture alleged in the Georgia complaint went wider.[31]The intention to be consistent with the outcome of Phase 2 raises a still further problem, and that is how the complaint would look, indeed how it could survive, a redrafting to bring it into line. No draft has been put before the court by the shipowners to test the problem. Mr Iain Milligan QC, on behalf of Glencore, fairly referred the court to the finding of Moore-Bick J that Glencore was not aware of the sale and delivery by MTI of oil which had not been delivered to MTI under contracts of sale (the ITT contracts) to it (see para 9 above). That finding, to a question specifically asked as one of the defined issues in Phase 2, would appear to drive a coach and horses through the complaint's allegations of bad faith against Glencore.[32]Compared to these difficulties it may seem a comparatively small thing to observe that Mr Houghton also says (at para 38 of his second witness statement) that the shipowners do not allege in the complaint, unlike their position in Singapore, that MTI had actual authority to deliver cargo in Singapore. But I have already observed that one of the pleas in the complaint is that MTI had actual authority to instruct the shipowners to deal in any way with the cargoes. Indeed, Mr Houghton elsewhere observes ( ibid at paras 21/22) that, whereas the effect of the Phase 2 judgment is that any order by MTI to the shipowners to deliver cargo elsewhere than into storage prior to ITT contract would be a breach of their contracts with Glencore, in US law "this would not amount to a defence for Glencore against liability as MTI's joint venturer".[33]The further one looks into the complaint, merely as a pleading, against the background of Phase 2 and what the shipowners themselves say in their evidence about it, the more embarrassing (in the technical sense of that term) that complaint appears to become. At any rate, Glencore, the shipowners and their legal representatives, and I do not seem able to be all of one mind as to what it amounts to. Glencore's application[34]In the light of Mr Houghton's evidence that the Georgia complaint had been the result of long deliberation, it is instructive to consider the tactical decisions taken by the shipowners in the Metro litigation and in Singapore both in the run up to the issue of the complaint and in consequence of Glencore's application in response.[35]The first is that the shipowners' case of bad faith in the conduct of the joint venture made in that complaint has played no part at trial in the Metro litigation. Even in Singapore, the bad faith alleged was not in the conduct of the joint venture, but in the arrest of the three vessels. In Folio 654, in England, not even wrongful arrest was alleged. MTI had pleaded that the JV2 documents were shams and fraudulent, but that case was not pursued by MTI (or by the shipowners) at the trial of Phase 2. There has been no explanation as to how it comes about that the case of bad faith has not been pursued in the Metro litigation. Of less moment, but also relevant is that although Phase 1 was concerned with questions of conflict of laws and applicable law, no one had ever suggested that the applicable law of any tortious conduct might be that of the USA or any of its states.[36]Glencore's application for an anti-suit injunction was made on 2 August 2001, the day after the Phase 2 judgment was handed down. That application describes Glencore's case on the merits of its application in the following terms: because(1) the commercial court in London is the natural and convenient forum for the issues raised in Georgia; and(2) the Georgia proceedings are vexatious in that they are duplicative of the Phase 2 issues, duplicative of the counterclaims raised by the shipowners in London and Singapore, and brought for the ulterior motive of harassing Glencore. Glencore's application was supported by a witness statement of Mr Knowles, of Glencore's solicitors.[37]On 20 August 2001 the three defendant shipowners in Singapore obtained leave to discontinue their counterclaims in those actions. As Mr Houghton puts it, those counterclaims for wrongful arrest "have been abandoned". That was a few days before the trials of those actions were due to begin.[38]Glencore's application was due to be heard on 18 October 2001. Two days before that, on 16 October, Stanley served a notice of discontinuance in its counterclaim in Folio 273; and on 17 October, Exter served a similar notice of discontinuance in its counterclaim in Folio 654. Glencore has applied to set aside both those notices in applications which are currently pending, alleging that they are an abuse of process ( cf Ernst & Young (a firm) v. Butte Mining Plc [1996] 1 WLR 1605). Glencore has similarly appealed against the grant of leave to discontinue the counterclaims in the Singapore actions.[39]Before Moore-Bick J and again in this court the shipowners have sought to rely on these discontinuances as limiting their involvement in the Metro litigation (or in Singapore). Mr Simon has been unable to make any submissions contrary to the drawing of an inference that the purpose is to use the withdrawal of these claims from England and Singapore in an attempt to promote their reappearance in the altered form of the Georgia complaint.[40]The shipowners have also sought to limit their involvement in the Metro litigation by a submission that the shipowners' claims in their own action, Folio 219, have to a large extent been settled. For this purpose reliance is placed in part on a witness statement made by Ms Pantelia, a Dynacom manager, on 5 December 2000. The statement appears to have been made for the purpose of a Part 24 claim against MTI by Crest (and three other of the seven claimants in that action) but not by Exter, Wyndham or Stanley. Thus it is there suggested that the claims of Exter (in respect of the Shoko ) and of Wyndham (in respect of the Addax ) had already on or about 19 February 1998 ( ie within a few days of the writ) been agreed by MTI to be settled by the set off of sums due to MTI by five other Dynacom shipowners in respect of bunkers supplied to their vessels by MTI from the oil in storage. However, those very bunker deliveries are among the parcels of oil whose title is claimed by Glencore (see schedule 8 to Glencore's particulars of claim in Folio 273) and for that reason if no other such a set off is disputed. Moreover, although Ms Pantelia says that the set off was agreed orally with a promise of confirmation from MTI, no confirmation was ever received. It is to be observed that the shipowner claimants in Folio 219 amended their writ (to alter the sums claimed by each of the claimants) on 27 February 1998, that is to say after the alleged set off which nearly three years later was relied on by Ms Pantelia as a settlement of the claims of Exter and Crest. Nothing is said in Ms Pantelia's statement regarding Stanley's claim in respect of the Cherry but I believe that Stanley asserts that its claim has been satisfied from the proceeds of the sale of its cargo, which, in breach of the receivership order, Stanley refused to deliver to the receivers and sold under a disputed judicial sale (see para 14 above). That cargo is also the subject of a claim by Glencore. The fact remains that Folio 219, to which Glencore has since 20 February 1998 been a party as intervener, remains on foot, as does the Mareva injunction obtained by its claimants, and for an amount which is only consistent with the fact that all the claims in it remain alive. The anti-suit injunction[41]There is no dispute between the parties concerning the essential principles which govern the courts' ability to grant an anti-suit injunction. Those principles have been defined and refined in a series of leading authorities such as South Carolina Co v. Maatschappij "De Zeven Provincien" NV [1987] AC 24, Société Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] AC 871, Airbus Industie GIE v. Patel [1999] 1 AC 119 , and since the judgment below Donohue v. Armco Inc [2002] 2 Lloyd's Rep 425 and Turner v. Grovit [2002] 1 WLR 107 .[42]Thus the respondent to such an injunction has of course to be amenable to the territorial or personal jurisdiction of the English courts ( Donohue v. Armco at para 21). If that is established, section 37(1) of the Supreme Court Act 1981, which enables the court to grant an injunction "in all cases in which it appears to the court to be just and convenient to do so", provides the essential power to grant an injunction to restrain the respondent from commencing or continuing proceedings in a foreign court. However, jurisprudence has limited the conditions under which such an injunction may be regarded as "just and convenient". The following conditions are necessary. First, the threatened conduct must be "unconscionable". It is only such conduct which founds the right, legal or equitable but here equitable, for the protection of which an injunction can be granted. What is unconscionable cannot and should not be defined exhaustively, but it includes conduct which is "oppressive or vexatious or which interferes with the due process of the court" ( per Lord Brandon of Oakbrook, South Carolina at 41D). The underlying principle is one of justice in support of the "ends of justice" ( per Lord Goff of Chieveley, Société Aerospatiale at 892A, 893F). It is analogous to "abuse of process"; it is related to matters which should affect a person's conscience ( per Lord Hobhouse of Woodborough, Turner v. Grovit at para 24). Secondly, to reflect the interests of comity and in recognition of the possibility that an injunction, although directed against the respondent personally, may be regarded as an (albeit indirect) interference in the foreign proceedings, an injunction must be necessary to protect the applicant's legitimate interest in English proceedings; he must be a party to litigation in this country at which the unconscionable conduct of the party to be restrained is directed, and so there must be a clear need to protect existing English proceedings ( ibid at paras 27/28; Airbus v. Patel ). It follows that the natural forum for the litigation must be in England, but this, while a necessary, is not a sufficient condition.[43]While these are the conditions (and in this sense may be said to go to jurisdiction) for the grant of an anti-suit injunction, at a secondary stage, that of the exercise of discretion, these principles will be again respected. Thus, for reasons again of comity, the court will always exercise caution before granting an injunction (but cf The Angelic Grace [1995] 1 Lloyd's Rep 87 in cases dealing with contractual arbitration and jurisdiction clauses). Moreover, because the court is concerned with the ends of justice, the respondent will always be entitled to show why it would nevertheless be unjust for an injunction to be granted ( Société Aerospatiale at 896F/G; DICEY and MORRIS , 30 th ed, 2000, at 12-064). Territorial or personal jurisdiction[44]Mr Simon submits that this court has no territorial or personal jurisdiction over the shipowners for the purpose of granting an anti-suit injunction against them in respect of the Georgia complaint. This contention (I avoid the word submission in this sense, for the sake of clarity) is somewhat elusive. He has to recognise that in some sense the shipowners have, by bringing their action in Folio 219 and in being sued and counterclaiming in Folio 273 (in the case of Stanley) and in Folio 654 (in the case of Exter), submitted to the jurisdiction of the English court. Nevertheless, the contention is, I think, that any such submission is only for limited purposes and in respect of limited parties and claims; and that such limitations are still further narrowed by the settlements already achieved in relation to the claims in Folio 219 (see para 40 above) and the discontinuances made in Folios 273 and 654 (see paras 37/38 above). In this connection Mr Simon initially cited no authority positively in his favour, while seeking to distinguish authorities relied on by Moore-Bick J in his judgment such as Derby & Co v. Larsson [1976] 1 WLR 202, Republic of Liberia v. Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539 and Balkanbank v. Taher (No 2) [1995] 1 WLR 1067. In his reply, however, Mr Simon relied on Carter v. Fey [1894] 2 Ch 541 , a case that had been referred to by Mr Milligan.[45]In my judgment a distinction has to be made between the case of a foreign party who invokes the jurisdiction of the English court by claiming here, and the case of a foreign party who is brought to this jurisdiction by answering a claim within England's long-arm statute (formerly RSC Order 11 and now CPR 6.20). In the first case the foreign claimant submits himself willingly to the jurisdiction. He does so, and in my judgment must do so, without reservation, and is subject, so far as territorial jurisdiction is concerned, to all the incidents of litigation in this country, including, for instance, his amenability to a counterclaim. He cannot say:
"I came here only for the purpose of my claim. I am not willing to accept this jurisdiction for the purpose of my defendant's counterclaim."
Discretion, of course, is another matter, and it is open, as a matter of discretion for the foreign claimant to point to his foreignness and to argue that it enters as an element into the court's procedural decision. In the second case, however, the foreign defendant is brought here against his will and (subject to the role of international treaty, such as the Brussels and Lugano Conventions, which raises different issues) can limit his submission to the jurisdiction and prima facie is regarded as doing so on a claim by claim basis. I believe that the authorities to which the court has been expressly or implicitly referred in this appeal are consistent with this distinction.[46]Thus in Derby v. Larsson a foreign claimant A sued B, an English company, and B counterclaimed against both A and C, another foreign party. The House of Lords held that B was properly served with the counterclaim by service on its solicitor in England and that therefore C was also amenable to the jurisdiction under RSC Order 11, rule 1(1)(j) ("if the action [viz the counterclaim] being properly brought against a person duly served within the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto"). Lord Russell of Killowen said (at 205H):
"If a person chooses to commence proceedings in this jurisdiction he lays himself open to the possibility of a counterclaim by the defendant as well as to a defence."
And Lord Simon of Glaisdale said (at 204D):
"I agree with my noble and learned friend, Lord Russell of Killowen, that the counterclaim here was properly brought against a party [A] who was in the circumstances within the jurisdiction and who was duly served with it within the jurisdiction."
[47]In Republic of Liberia v. Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539 the foreign claimant ROL sought a declaration against GOI that it was not party to a contract or its arbitration clause pursuant to which GOI had purported to invoke arbitration. GOI counterclaimed against ROL damages for breach of the contract or in tort on the basis that it had procured a breach of the contract. ROL sought to strike out the counterclaim save in so far as it sought a declaration that ROL was a party to the contract (the mirror image to ROL's claim) on the basis of sovereign immunity and that the counterclaim could only be brought by separate action. ROL failed in its application. Oliver LJ said (at 544):
"Thus, Mr Mance asks forensically, why should the defendants be allowed to pursue, by counterclaim, claims which they could never have pursued by direct action? The answer given by Mr Gee – and it is one which appears to be incontrovertible – is that by becoming a litigant within the jurisdiction, a plaintiff submits himself to the incidents of such litigation, including liability to a counterclaim."
Neill LJ said (at 547):
"A person who brings an action in England thereby renders himself liable to be served with a counterclaim even though such a counterclaim could not have been made against him if he had not himself invoked the jurisdiction of the English court."
[48]Both Oliver LJ and Neill LJ invoked the authority of Derby v. Larsson . They contemplated that as a matter of discretion a court might rule that the counterclaim should be dealt with in different proceedings. But as a matter of jurisdiction, no limit was placed on the width of the rule laid down, and it applied even where, if the defendant had started a different action, he could not have obtained jurisdiction over the claimant. Republic of Liberia was approved by the House of Lords in Metal Trade Corporation Ltd v. Kate Shipping Co Ltd [1990] 1 WLR 115, see per Lord Brandon at 128F/G.[49]In Balkanbank v. Taher (No 2) [1995] 1 WLR 1067 these earlier decisions were applied to a case where the foreign claimant sought only ancillary Mareva relief in support of foreign proceedings. The defendants wished to make substantive counterclaims, but at first instance the judge struck out their counterclaims on the basis that RSC Order 28, rule 7, which then covered the making of counterclaims "in an action begun by originating summons" only applied, by reason of those words just quoted, to actions for substantive and not merely ancillary relief. This court reversed that decision, holding that the words in issue covered claims for merely ancillary as well as substantive relief. The decision is ultimately therefore a narrow one on the meaning of the word "action" in that rule: and Saville LJ saw no good reason for cutting down or limiting the words of the rule in the manner suggested (at 1075H). In essence the case is not therefore about territorial jurisdiction, but about a different issue of jurisdiction, namely whether a claim for only ancillary relief is susceptible to a counterclaim for substantive relief. That issue is as relevant to the case of an English claimant as to the case of a foreign claimant. That issue was determined with the assistance of a consideration by Saville LJ of the general principles supporting a right to counterclaim, viz that such a right is desirable in the interests of justice to avoid multiplicity of proceedings and that it is only fair and right that the proposition, that a claimant who seeks relief from the courts can escape the risk of being sued in turn, requires to be closely scrutinised in the interests of justice (at 1072). Mr Simon sought to use these considerations to undermine the existence of territorial jurisdiction in the present case: but in my judgment that attempt was misconceived. If a foreign claimant has given to the courts of this country territorial, in personam, jurisdiction over him by claiming here, these courts have not lost that jurisdiction in that action merely because in a particular case, for reasons of discretion, they might consider that the interests of justice might favour forcing a counterclaiming defendant into bringing separate proceedings.[50]The case of the foreign defendant who has not invoked the jurisdiction of these courts, however, is different. In this case, in the absence of a general submission to the jurisdiction (see The Kapetan Markos [1986] 1 Lloyd's Rep 211 at 228/9) the general rule is that permission has to be obtained within the four corners of the English long-arm statute for each separate claim made against him: see Holland v. Leslie [1894] 2 QB 346 and Waterhouse v. Reid [1938] 1 KB 743.[51]Mr Simon nevertheless sought to invoke a different line of authority as reflecting and supporting his contention that these courts lacked territorial jurisdiction over the shipowners in respect of Glencore's claim for an anti-suit injunction. Thus he referred to Carter v. Fey [1894] 2 Ch 541 . That was not, however, a case concerned in the slightest degree with territorial jurisdiction, but with the somewhat technical question of whether a defendant's motion for an injunction (to restrain the claimant from using the defendant's name in business) was incidental to any relief sought by the claimant, at a time when the defendant had not yet pleaded a defence or counterclaim so that it could not be said that it related in any way to the defendant's case. As it was, the writ had only just been issued and no statement of claim had even been served. As Lindley LJ said the question was about a defendant who was "in a hurry" (at 543). I do not think that authority assists the debate about territorial jurisdiction in any way, and the same goes for Des Salles d'Epinoix v. Des Salles d'Epinoix [1967] 1 WLR 553 where Carter v. Fey was applied.[52]In my judgment the shipowners have undoubtedly submitted to the jurisdiction of the English courts by bringing their claims here in Folio 219, and in the case of Stanley and Exter by reason of their counterclaims in Folios 273 and 654; as well as by participating in the Metro litigation in all the ways described above (see para 10). In such circumstances, it seems to me that the real questions are(1) whether Glencore is a party to the litigation in respect of which they have so submitted and(2) whether that litigation embraces or is wholly distinct from the litigation which Glencore seeks to protect by its injunction. I am not sure that question (2) raises a question of territorial jurisdiction as distinct from a question of the court's power to issue an anti-suit injunction in a particular case; but in any event I am prepared to assume that both questions (1) and (2) go to the issue of territorial jurisdiction.[53]Is Glencore then a party to the litigation in respect of which they have so submitted? In my judgment the question only has to be asked to admit of only one possible answer. Glencore has been a party to the shipowners' action in Folio 219 ever since 20 February 1998, qua intervener. It needed to intervene in order to protect its interest in the oil which the shipowners were asserting, in their claim for Mareva relief, was the property of MTI. The question of Glencore's title to the oil is the great issue (admittedly by no means the only important issue, because there are also other oil claimants and many other issues) in the Metro litigation. There has been no need to define in pleadings in Folio 219 itself the ramifications of the dispute as to title to the oil, for that issue has been clarified in pleadings in the Metro litigation and all parties to the actions ordered to be tried concurrently have been at liberty to participate in that issue. The pleadings and documents which have been filed or disclosed have been available to all parties to the Metro litigation. Glencore has participated in full in every aspect of the Metro litigation, and so have, at all times, one or other or all of the four shipowners. Since they all shared common representation by way of solicitors and counsel, it hardly mattered whether they all formally participated at every stage, for there was always at least one of them to look after the interests of all, and all were and remain bound by the court's decisions at trial. Their action Folio 219 and its Mareva relief still remain alive; and the discontinued counterclaims were only discontinued after the application for injunctive relief had been made and the discontinuances remain subject to challenge. Glencore has clearly been a party to the litigation in respect of which the shipowners have submitted to the jurisdiction of these courts and that litigation has embraced Phase 2.[54]Is the litigation in respect of which the shipowners have submitted to this jurisdiction wholly distinct from that which Glencore seeks to protect by its injunction? The question has in effect been answered ("No") in the previous paragraph, but I would add the following. The Phase 2 issues were concerned inter alia with allegations that there was a joint venture or other contractual relationship between Glencore and MTI which affected title to the oil, that Glencore was MTI's principal or partner (the allegation of partnership was not pursued at trial), that MTI was Glencore's authorised agent (the issue of apparent authority was due to be heard as part of Phase 2 but has been put off to a later phase because it was felt to be too fact specific for Phase 2), that Glencore and MTI had brought sham documents into existence (an issue not proceeded with), and that Glencore knew that MTI was disposing of its oil. Compare those issues with the matters put in question by the Georgia complaint. It is impossible to say that the litigation which Glencore seeks to protect by injuncting the Georgia proceedings is distinct from the litigation in which the shipowners have participated and in respect of which they have submitted to the jurisdiction.[55]As Moore-Bick J said at para 30 of his judgment below:
"Actions 1998 Folio 219, 1998 Folio 273 and 1998 Folio 654 are as much part of this process as any other actions forming part of the Metro litigation and it is quite unrealistic to suggest that they can be viewed in isolation. The shipowners have been represented at all the case management conferences and have played an active role in the proceedings as far as necessary to protect their interests. The issues to be determined in Phase 2 were broadly established at the case management conference held by Rix J in November 1999 at which they were represented. As from that time, therefore, they were well aware that the court would determine all issues relating to the relationship between Glencore and MTI at that stage. They were also aware that they could themselves raise for decision at Phase 2 any issues of that kind which they thought had a bearing on the claims to which they were parties. Since the precise nature of the relationship between Glencore and MTI was likely to have a direct bearing on the question of title to oil held by MTI, it must have been clear that the outcome of Phase 2 was likely to be of relevance to all the shipowners, if only in relation to the issue which had arisen between themselves and Glencore as interveners in action 1998 Folio 219."
[56]For these reasons I would hold that there was territorial, in personam jurisdiction, to grant the anti-suit injunction sought by Glencore. Procedural power and inherent jurisdiction[57]In these circumstances can it be said that the litigation in respect of which the shipowners have submitted to the jurisdiction of these courts is somehow not subject to Glencore's pursuit of an anti-suit injunction because of some technical procedural omission or lacuna, such as the failure of Glencore to make a formal counterclaim against the shipowners for such an injunction? Mr Simon submits that it is. He submits that there has been no formal counterclaim by Glencore for an injunction, and that under the current rule for the making of counterclaims, CPR 20.4, there could be no such counterclaim for an injunction because Glencore is not a "defendant". He also submits that such an omission or lacuna can not be overleaped or filled in by invoking a doctrine of the inherent jurisdiction of the courts to protect its own process.[58]I have placed this submission under the heading of "Procedural power and inherent jurisdiction", but in truth I am not sure that Mr Simon did not intend to present this question as an aspect of territorial jurisdiction. However, I do not regard it as such, for the same question could be asked in respect of an English party in the shipowners' position.[59]In the first place, I do not think that an application for an anti-suit injunction has to be made by formal claim or counterclaim. It can be made merely by application in existing proceedings, as it was in South Carolina . Secondly, I agree with Moore-Bick J (para 22 of his judgment below) that if Folio 219 had stood alone and had proceeded along conventional lines, Glencore would have been formally added as a defendant to an issue as to title to the oil and thus, as defendant, would have fallen squarely within the terms of Part 20.4 ("A defendant may make a counterclaim…"). In any event, in Folios 273 and 654 Glencore was a defendant – for the purposes of Stanley's and Exter's counterclaims. The fact that the Metro litigation, in all its complexity, followed a less conventional route does not deprive the court of jurisdiction – in any sense of that term, territorial or otherwise. The shipowners fully participated, as an incident to the actions which they had themselves commenced, either as claimants or (in the case of two of them) as counterclaimants, in the litigation of issues, described compendiously as the Metro litigation, which are the subject matter of Glencore's requested relief by way of anti-suit injunction. Indeed, under the case management technique adopted for the purpose of this litigation, all the shipowners were bound by the issues adopted by any of them, once such issues had been decided by the court, whether or not they all participated actively in every stage of the proceedings. They were all in that sense party to every aspect of the litigation, and subject to the disputed effect of Stanley's and Exter's late discontinuances, remain so. It is clear, moreover, from Mr Gee's skeleton argument for the purposes of the decisive case management conference in November 1999 that all four shipowners, whom he was formally representing on that occasion, actively advocated and supported the management technique there adopted. Furthermore, the Phase 2 issues scheduled to Moore-Bick J's case management conference order of 18 December 2000 record that they are issues "raised in the pleadings of MTI and Glencore, and in particular, the following parts of those pleadings…(e) The Bullet Points of Defence of Stanley Shipping Limited – paragraph 2. [As adopted by Messrs Holmes Hardingham's other clients]".[60]As for inherent jurisdiction, this court has had cited to it the famous article of Sir Jack Jacob QC, "The Inherent Jurisdiction of the Court" [1970] Current Legal Problems 23, and also an article by Professor M S Dockray advocating a more cautious and less holistic approach, "The Inherent Jurisdiction to Regulate Civil Proceedings" [1997] 113 LQR 120. In my judgment there is no need to enter too deeply into these waters. There is no need to find in the inherent jurisdiction of the court the power to grant anti-suit injunctions, which is in any event provided by section 37(1) of the Act, although it would seem that the power predates even section 37(1)'s statutory predecessors (see Lord Goff in Société Aerospatiale at 892). Moore-Bick J considered that, even in the absence of some explicit procedural rule on which to hang Glencore's anti-suit injunction as an incident of the shipowners' litigation, it would be possible to find such an incident in the court's inherent jurisdiction to protect its own process (citing Lord Woolf CJ in Ebert v. Venvil [2000] Ch 484 , 496/7). As I understand the matter, it was not the judge's intention to suggest that the court could frame its own remedy free of the jurisprudence and limitations of the authorities governing section 37(1): that goes to the question of jurisdiction in yet another sense, viz the conditions under which the power under section 37(1) can be exercised. He was merely concerned with the question whether the court had power to protect its own process in the absence of a specific rule of court, such as that governing counterclaims, the need for which was stipulated by the shipowners. It is unnecessary to decide this issue; but I would merely opine that there is much in the judge's approach, as I have understood it, and it appears to be supported by the judgment of Potter J in The Eras Eil Actions [1995] 1 Lloyd's Rep 64 at 74. Section 37(1) of the Supreme Court Act 1981[61]As stated above, it is common ground that this is nowadays the source of power to grant an anti-suit injunction. Also as stated above, there are two conditions which are necessary for a successful application for such an injunction (see para 42 above). I shall consider first the requirement of a clear need to protect existing English proceedings. A clear need to protect existing English proceedings[62]Mr Simon's major submission under this heading was that Glencore was seeking to protect its position not in the English proceedings, but in the Singapore proceedings, and that that was not a legitimate interest. I disagree with Mr Simon's premise. It is true that the claims for wrongful arrest, to recover the losses involved in the detention of the Cherry, the Addax and the Epic are only claimed by their respective owners in Singapore. However, all the basic issues which underpin those claims had been raised and have been decided (or are yet to be decided) in the Metro litigation: for instance, whose oil was it? Did MTI have Glencore's authority to dispose of the oil? Was there a joint venture? Did Glencore have knowledge of what MTI was doing with the oil at a time before it had title?[63]In my judgment, the factors needed to make good this condition are present in this case. There are existing proceedings in England. England is the natural forum for those proceedings, as is demonstrated by the receivership order, the great accumulation of actions and parties which are all joined to the Metro litigation, the resolution of such challenges to English jurisdiction as there have been in the litigation essentially in favour of such jurisdiction, and the important role for English law with respect to many of the important contracts in the case such as those concerned with the Glencore/MTI relationship itself. Above all there is the need to find one forum in which the complexity of such litigation can, if not entirely, then at any rate for the most part, be resolved in such a way as to bind but also to assist as many parties as possible, without multiplicity of proceedings in different countries, and with as much economy and efficiency as possible. Glencore, the applicant for the injunction, has a role, perhaps the leading role in the litigation and a legitimate interest in it to protect. Although Glencore has had to go to Singapore to arrest the ships of three of the four shipowners and thus to gain security for its claims, it has proposed that these actions should be transferred to London, but has been rebuffed.[64]In these circumstances, the condition being considered has been fulfilled, subject perhaps to this, that the element of a "clear need" cannot finally be shown until the next and final condition of unconscionable conduct has been investigated. Unconscionable conduct[65]Mr Simon had little to say on the question of unconscionable conduct itself. He characterised the Georgia complaint as a claim for wrongful arrest, and submitted that such a claim was outside the Metro proceedings, as distinct from the Singapore proceedings. Both elements of that contention are mistaken. Although the Georgia complaint at one level (but see para 28 above) is quantified by reference to the same elements of loss as in the case of the Singapore counterclaims, it is premised on issues which either overlap or clash with issues in the Metro litigation, and the same of course is true of the Singapore counterclaims. He next submitted that if an anti-suit injunction should be sought anywhere, that should be done in Singapore, but never had been. Glencore was therefore trying to compel the shipowners to bring their tort claim in Singapore rather than in Georgia, that was for the courts of Singapore and Georgia to consider, and founded no claim of unconscionable conduct on the part of the shipowners here. That submission does not assist the shipowners for the same reasons; and in any event they have now abandoned their counterclaims in Singapore. Mr Simon then submitted baldly that the Georgia complaint was not intended to frustrate the English proceedings; that the test was necessity for protection and not a mere desire for tidiness and good order; and that for good measure the shipowners acknowledged their willingness to be bound by Phase 2. In all of this, however, he was unable to explain the legitimate purpose of the shipowners' last minute abandonment of their claims in England and in Singapore in preference for Georgia. And there was no attempt to deal with the detail of Moore-Bick J's analysis of the present issue of unconscionable conduct in paras 32/41 of his judgment.[66]In my judgment the judge was right in that analysis, and the absence of any detailed attack on his judgment enables me to deal with the matter relatively briefly. I would emphasis the following matters.[67]The issues raised (expressly or implicitly) in the Georgia complaint are either issues which have been raised and decided in Phase 2; or issues (such as apparent authority) which were raised for the purpose of Phase 2 but put over by consent or judicial decision to later; or issues which were raised for the purpose of Phase 2 but never argued and thus abandoned, such as partnership or the use of sham documentation; or issues which cannot survive the decisions made in Phase 2, such as Glencore's lack of knowledge of MTI's disposals of Glencore's oil and thus all allegations of bad faith or conspiracy; or issues (such as again all issues of bad faith) which, if they were to be made at all, ought to have been made in London and argued at Phase 2 or at the very least ought to have been alleged at an early date and determined as part of the planning for the phased determination of the litigation. Therefore there is certainly such an overlap of issues between the Metro litigation and the Georgia complaint as to raise prima facie a case of vexatious conduct. The fact that the monetary claims advanced in Georgia, to the extent that there is any clarity about them, may not overlap with claims made by three of the shipowners in London (as distinct from Singapore) is in such circumstances of only minor significance, for such claims are dependent on the issues described. Mr Simon has not in any way sought to persuade this court that the judge was wrong to conclude that even for the shipowners to have begun fresh litigation in this country making the allegations made in the Georgia complaint would have been vexatious and an abuse of process in accordance with the principle of Henderson v. Henderson (1843) 3 Hare 100 .All the causes of action raised in Georgia are perfectly familiar to and consistent with English law, even if the possibility of suing the "Metro-Glencore joint venture" as a separate legal entity would not be available in England. But there would be no need to have such an entity to sue, for in practical terms Glencore would be fully responsible if the shipowners made good their allegations, as would MTI which in any event is insolvent.[68]In effect the same issues, with only some variations, have been raised (or ought to have been raised) in England and Singapore as well as in Georgia. To a large extent they have been decided already in Phase 2. To the extent that they have not been decided there, they have been deliberately ducked in England, and the recent discontinuances in London and Singapore have indicated a desire to avoid such issues and their legal consequences still further. Thus, to the extent that the fundamental issues have not been already determined, the shipowners have sought to put off the day of debating them before the English courts and the courts of Singapore and instead seek to raise them before the district court in Georgia. I mention in this context the Singapore litigation only because the abandonment of the three shipowners' counterclaims there are part of a pattern.[69]Against that background, if one asks of the shipowners their reason for these legal manoeuvres, there is effectively no answer. The timing of the Georgia complaint has been ill explained. There is no explanation for the discontinuances in Singapore. It is suggested that the US law relating to the separate legal persona of a joint venture entity gives the shipowners the possibility of wider relief; but it is impossible to see that there is any realism in that suggestion. If, contrary to his actual findings in Phase 2, Moore-Bick J had concluded that Glencore were really MTI's principal and MTI had really been acting with Glencore's authority, then it is hard to see how Glencore could succeed in any of its claims against the shipowners or how their counterclaims (whether here or in Singapore) could fail, however expressed; and a fortiori if Glencore had always been acting in bad faith. The inference to be drawn in such circumstances is that the shipowners' complaint in Georgia is simply part of a deliberate strategy of harassment and vexation, designed to wear down Glencore by making it as difficult and expensive as possible for it to bear the burden of litigation on several fronts; and designed always to put off to another day and another court and another forum the possibility of reaching a conclusion on the issues which divide the parties. The consequences of the Georgia complaint, if indeed it is not worthless, would be embarrassing not only for Glencore, but also for the other litigants in the Metro litigation, and for the English court: for all would face, in theory, the complexities of multiplicity of litigation in a situation where the Georgia court was being invited to make findings as to MTI's rights over and in dealing with the oil which would fly in the face of findings in London. The shipowners nevertheless say that they intend to be faithful to the findings in London. Their complaint in Georgia, issued only shortly before the handing down of the Phase 2 judgment, belies that assertion; nor have they explained how their redrafted complaint would look or could survive the findings in Phase 2. The shipowners' assertions lack credibility.[70]In these circumstances, where the shipowners have been able to show no legitimate interest in pursuing their claims in Georgia and where no prejudice has been or could be suggested to them if restrained from proceeding in Georgia, the conclusion that they have acted against conscience and against the ends of justice is the proper one to draw. It also follows that a clear need for the protection of an injunction has been shown. Discretion[71]Even less was said by Mr Simon about discretion. He recognised that anything that he could say that was relevant to discretion would have been covered in his submissions on unconscionable conduct. It has also been unnecessary to consider Glencore's submissions concerning the weakness of the shipowners' case even for the establishment of jurisdiction in Georgia, or as to how Mr Griffin's evidence in Phase 2 was contrary to the complaint's pleaded allegations of his involvement in any relevant joint venture. Before Moore-Bick J it was submitted for the shipowners that this court should, as a matter of comity, defer to the Georgia court's consideration of its own jurisdiction, but he disagreed. The argument has not been pressed.[72]In sum, in my judgment this appeal should be dismissed.

Lord Justice Robert Walker:

[73]I agree. The Vice-Chancellor:[74]I also agree.

Order

Appeal dismissed with the costs, £50,000 to be paid on account; detailed assessment of same leave to appeal was refused. (Order does not form part of the approved judgment) Note 1 Crest’s name was omitted in error from the order [Back] Note 2 On 5 April 2002 the Singapore court gave judgment in favour of Glencore in its three actions. [Back]

Cited in 16 later judgments

and 7 more of the most senior