Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 20 November 2003. Gregory Paul Turner v Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA.
(Brussels Convention — Proceedings brought in a Contracting State — Proceedings brought in another Contracting State by the defendant in the existing proceedings — Defendant acting in bad faith in order to frustrate the existing proceedings — Compatibility with the Brussels Convention of the grant of an injunction preventing the defendant from continuing the action in another Member State)
TYPE: Conclusions
SUBJECT: Brussels Convention of 27 September 1968
PROCEDURE: Reference for a preliminary ruling
Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 20 November 2003:
Grounds
Introduction
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 (2) of what are commonly known as ‘anti-suit injunctions'. These are injunctions whereby a party is prohibited - and non-compliance constitutes contempt of court - from commencing or continuing proceedings before another judicial authority, even one abroad. 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 facts of the case before the national court
2 As explained by Lord Hobhouse of Woodborough in the order for reference, the facts giving rise to this request for a preliminary ruling can be summarised as follows.
3 Gregory Paul Turner, who is of British nationality and is a solicitor entitled to practise under English law, was employed as legal adviser to a group of companies by one of the companies in the group.
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 Hong Kong, which had employed Mr Turner under contract, Harada Ltd, whose registered office is in the United Kingdom, and Changepoint SA, whose registered office is in Spain.
His role as an adviser included dealing with and advising on real property and commercial matters, representation in proceedings in the United Kingdom and other tasks of a legal nature relating to the group.
4 Mr Turner worked in London. However, in May 1997 he asked for a transfer to the group office in Madrid, a request to which his employer acceded. In November of that year he was put on Harada Ltd's payroll, under the same conditions of employment. Mr Turner was thus to continue to perform the same tasks as those previously carried out by him.
5 After working in Madrid for 35 days, Mr Turner asked to terminate his contact with Harada and instituted proceedings against that company before the Employment Tribunal, London, which has jurisdiction 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. Such machinations were, in the claimant's view, tantamount to unfair dismissal.
6 The Employment Tribunal dismissed an objection of lack of jurisdiction raised by Harada and that decision was upheld on appeal.
On conclusion of the proceedings, the Employment Tribunal awarded Mr Turner damages.
7 In the meantime, in July 1998, Changepoint and Harada commenced proceedings against Mr Turner before a court of first instance in the Spanish capital, claiming compensation for damage caused to them as a result of unsatisfactory professional conduct.
Mr Turner received the writ of summons around 15 December but refused to accept service.
In the statement of claim, formulated at a later stage, he was called on to pay a very 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 disappeared from the Madrid office without giving notice and had then made a claim in the United Kingdom on the basis of unfounded allegations which concealed the truth from the English tribunal.
8 Mr Turner never entered an appearance in the Spanish proceedings. On 18 December 1998 he asked the High Court in London (3) to restrain Mr Grovit, Harada and Changepoint from continuing the proceedings commenced in Spain. On 22 December the High Court granted his application by issuing an interlocutory injunction.
In February 1999 the High Court declined to renew the injunction, whereupon Mr Turner applied to the Court of Appeal which, on 28 May, made an order requiring the defendant together or separately to:
‘(1) take all necessary steps forthwith to discontinue or to procure the discontinuance of the claims made against the Claimant in proceedings commenced by one or more of the Defendants in the Court of First Instance, Madrid, Court 67, under Proceedings number 70/98;
(2) be restrained until further Order from taking, or procuring any other person 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) be restrained until further Order from commencing or continuing or procuring any other person or persons (including any company directly or indirectly controlled by the Respondents or any of them, or any company within or associated with the Chequepoint Group of companies, and further, in respect of the 1st Defendant, any company of which [he] is a Director) to commence or continue any further or other proceedings against the Claimant (arising out of his contract of employment) in Spain or elsewhere, except that this paragraph shall not apply to proceedings commenced or continued in England and Wales.'
9 The Court of Appeal took the view that the sole purpose of the proceedings commenced in Madrid was to intimidate and 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 the absence of an injunction, the defendants would continue to behave improperly.
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