Ben Quiney KC and Nicola Atkins obtain anti-suit injunction in the Commercial Court
In a judgment given on 24 September, Mr Justice Jacobs upheld an interim anti-suit injunction in favour of Chubb, the provider of a global umbrella policy of insurance (“the policy”), against Wood Group, the insured under the policy.
Wood Group had commenced declaratory proceedings in Alberta, Canada, in relation to its entitlement to an indemnity under the policy for defence costs. Those defence costs related to a claim against Wood Group for damages caused by a pipeline exposition in Alberta, which led to 5,000 cubic metres of bitumen leaking into the environment.
Chubb’s position was that the policy contained an exclusive jurisdiction clause in favour of the English court and that there was a real risk that Wood Group would obtain relief in Canada that further breached that provision (such as an anti-anti suit injunction). It therefore sought and obtained interim ex parte anti-suit injunctions against Wood Group in relation to the Canadian coverage proceedings at a hearing in front of Cockerill J on 16 August 2021. Various other excess layer insurers had previously obtained urgent anti-suit injunctions against Wood Group at an ex parte hearing in front of Jacobs J on 2 August 2021.
At the hearing on the return date Wood Group objected to the continuation of the injunction on the basis that the policy did not contain an exclusive jurisdiction clause, this clause being inconsistent with a prevailing clause incorporated into the policy that provided a “permissive” approach to jurisdiction. Further, Wood Group argued that there had been a failure of full and frank disclosure such that the court should refuse to continue the equitable remedy.
Jacobs J rejected both arguments in relation to Chubb holding: (1) that there was a high degree of probability that the policy contained an exclusive jurisdiction clause in favour of the Commercial Court in London and (2) that there had not been a failure of full and frank disclosure. It was common ground that the applicable legal principles concerning the grant of anti-suit injunctions are as summarised in Catlin Syndicates Ltd. v AMEC Foster Wheeler USA Corp [2020] EWHC 2530 (Comm).
In construing the exclusive jurisdiction clause in the policy Jacobs J applied inter alia the House of Lords decision in Thomas (TW) & Co Ltd v Portsea Steamship Co Ltd (as cited in Lewison: The Interpretation of Contracts 7th edition at paragraph 3.83). As the jurisdiction clause that Wood Group sought to give primacy to was an incorporated term, and that term was inconsistent with a clear and express clause in the policy, the latter provision prevailed.
Ben Quiney KC and Nicola Atkins appeared for Chubb instructed by Chris Wilkes of DAC Beachcroft.
The approved judgment can be found here.
