The WFW article – In the nick of time: the effect of delay on anti-suit injunctions (Maritime Disputes)
In two recent decisions, which will be of particular interest to those involved in shipping disputes, the English High Court has considered the impact of significant delay on applications for anti-suit injunctions. These cases shed light on how the court will deal with a failure to apply for an anti-suit injunction in good time and, with respect to one of the cases, the impact of a conditional order on claims which are subject to a short one-year time-bar under the Hague/Hague Visby Rules.
“These cases shed light on how the court will deal with a failure to apply for an anti-suit injunction in good time and the impact of a conditional order on claims which are subject to a short one-year time-bar under the Hague/Hague Visby Rules.”
Anti-suit injunctions (which prevent a party from issuing or continuing proceedings in breach of an arbitration or jurisdiction agreement) are an important tool through which parties, engaged in cross-border matters, ensure compliance with contractual bargains.
Once an applicant for an anti-suit injunction can demonstrate that its case is right “to a high degree of probability”, the respondent must prove that there are strong reasons not to grant the injunction. One key reason on which respondents frequently rely is delay in bringing the application. Where the court considers a delay is excessive, this is generally sufficient to defeat an application for an anti-suit injunction.
The decisions of the English High Court in Specialised Vessel Services Ltd v MOP Marine Nigeria Ltd¹ and in Times Trading Corporation v National Bank of Fujairah² are therefore significant, because though they involved substantial delays, the court still granted anti-suit injunctions. These cases shed light on the factors the courts take into account when determining whether a delay is excessive.