CB, Re (Financial Remedies: Antisuit Injunction)

This court’s jurisdiction,

DB’s conduct by pursuing litigation in India and the overall conduct of the parties, and

Whether in all the circumstances, this court should exercise its discretion to grant an injunction?

Under English law the court may restrain a defendant over whom it has personal jurisdiction from instituting or continuing proceedings in a foreign court when it is necessary in the interests of justice to do. (2) It is too narrow to say that such an injunction may be granted only on the grounds of vexation or oppression, but, where a matter is justiciable in England and a foreign court, the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive. (3) The courts have refrained from attempting a comprehensive definition of vexation or oppression, but in order to establish that proceeding in a foreign court is or would be vexatious or oppressive on grounds of forum non conveniens, it is generally necessary to show that (a) England is clearly the more appropriate forum ("the natural forum"), and (b) justice requires that the claimant in the foreign court should be restrained from proceeding there. (4) If the English court considers England to be the natural forum and can see no legitimate personal or juridical advantage in the claimant in the foreign proceedings being allowed to pursue them, it does not automatically follow that an anti-suit injunction should be granted. For that would be to overlook the important restraining influence of considerations of comity. (5) An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to various factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention. (6) The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive."

With customary clarity Peel J in E v E (ANTI-SUIT INJUNCTION: CHILDREN) [2021] EWHC 956 (Fam) delineated a path through the statute and authorities that begin with SCA leading to a summary of the relevant principles set out below before turning to the observations of Toulson LJ above. In his summary he stated that the:

“33. First, the English court must have personal jurisdiction over the Respondent in respect of the dispute. If the English court has jurisdiction over the substance of a dispute to which the Respondent is a party, then it will ordinarily have personal jurisdiction over the Respondent; Masri v CCIC (No 3) [2009] 2 W 669 . Usually, an injunction is sought ancillary to existing or pending proceedings and the requirement is easily satisfied. Relief cannot be granted unless valid service on the Respondent can be effected: Airbus Industrie GIE v Patel [1999] 1 AC 119 . Thus, a person outside the jurisdiction may nevertheless fall within the personal jurisdiction of the court if s/he can be served and is a party to substantive existing or pending proceedings.

Second, "the English forum should have a sufficient interest in, or connection with, the matter in question to justify the direct interference with the foreign court which an anti-suit injunction entails"; Airbus Industrie GIE v Patel [1999] 1 AC 119 . This will usually require an inquiry into the nature of the substantive proceedings.

Third, there must be an appropriate ground for obtaining relief. The applicant must demonstrate some form of unconscionable conduct on the part of the Respondent which justifies the injunction being granted. Commonly this is found in contractual applications where the parties agree an exclusive jurisdiction for resolving disputes, but one party then brings a claim in a country other than the contractual forum. In non-contractual applications, examples include restraining a subsequent foreign action proceeding in parallel with an action established in the English courts: hence the source of the Hemain injunction. The applicant must demonstrate that the bringing or continuing of those foreign proceedings is unconscionable (which can include oppressive or vexatious behaviour); an example is evidence of bad faith where the Respondent is exerting extreme pressure on the Applicant, as in Cadre SA v Astra Asigurari SA [2006] 1 Lloyds Rep 560 .

Fourth and finally, if all of the above are satisfied, the court must then exercise a discretion whether or not to grant an anti-suit injunction; Star Reefers v JFC Group [2012] EWCA Civ 14 . In so doing the court will have regard to all the circumstances which include the facts upon which the application is based, the connections with each jurisdiction, the nature of the substantive proceedings both in this jurisdiction and in the foreign jurisdiction, the principles of judicial comity, the circumstance in which the foreign proceedings are brought, the balance of prejudice to each party depending upon whether the injunctive relief is or is not granted, and any other relevant matters. In the case of children, the exercise would surely also consider their welfare.”

A stay on this ground may be granted if the court is satisfied that there is another available competent jurisdiction that better meets the interests of the parties.

The statutory criteria that must be satisfied is 'the balance of fairness' . This is not altered by Spiliada (per Sir Stephen Brown P in Butler v. Butler [1997] 2 FLR 311 ) and does not fetter the broad discretion of the court that is enshrined in statute ( De Dampierre v De Dampierre [1988] AC 9 2 e).

The court is tasked with undertaking a summary assessment of the ' connecting factors ' that include but not limited to those that are set out in 3.d. below.

The natural forum will be the one to which the case has the most substantial connection. The factors that may assist with assessing such connection include accessibility to the court by the parties and witnesses, language, costs, where the parties reside and where the wrongful act or omission occurred. (see Vedanta Resources PLC v Lungowe [2019] UKSC 20 referring to Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2012] 1 WLR 1804 ).

Generally, the burden of proof rests on the person applying for a stay. However, each party must establish the factors that they seek to rely on in support of their case. If it is established that there is an alternative forum that is prima facie appropriate for trial, the burden of proof shifts to the person who seeks to establish that justice requires the case to be heard in England and Wales.

Advantage to one party of continuing proceedings in England and Wales is not decisive and the court is tasked with assessing the interest of all of the parties and justice of the case.

For reasons that I will set out later in the judgment, habitual residence of the parties has become a feature of this matter. Habitual residence is a question of fact that is determined by the court when it is in dispute. Broadly, the party seeking to establish habitual residence must demonstrate a sufficient degree of integration within the jurisdiction in which habitual residence is said to exist. The law in this regard is well established and it would be infelicitous to set it out in any detail. In Wai Foon Tan v Weng Kean Choy [2014] EWCA Civ 251 , Aikens LJ stated it to mean “ the place where a person has established on a fixed basis the permanent or habitual centre of his interest, with all the relevant factors being taken into account. ” and “ … one cannot habitually reside in two places at once. ”

The parties are of Indian heritage. VC is a British national and DB is an Indian national with indefinite leave to remain in the UK. They were in a relationship for fourteen years having married in 2006 pursuant to arrangements by the family and separated in 2020. They have two children, X who is seventeen years old who will soon attain majority, together with his sibling Y who is seven years old. DB and the children live in England where the children attend privately funded schools. The funding of the children’s education has become a major point of contention between the parties and has contributed to the instigation and continuation of some of the litigation between the parties.

28 May 2021 complaint [redacted] by DB against VC resulting in criminal investigation under the Dowry Prohibition Act in India. These investigations are continuing. This has resulted in a ‘Look out Circular’ by the police that prevented VC leaving India for a considerable period ending in November 2021. However VC was unable to travel back to the UK until January 2022. Furthermore, the police also declined to take further action with respect to the complaints against VC’s extended family members but this was the subject of a challenge by DB the outcome of which remains outstanding.

19 July 2021 application [redacted] for child maintenance by DB against VC to the courts in India. She subsequently granted her father a power of attorney to pursue the application. The court has made an award which is currently the subject of an appeal by VC.

5 January 2022 VC petitioned for divorce in England and Wales. Decree nisi was pronounced on 4 October 2022 and made absolute on 16 November 2022.

1 September 2022 application by VC for Financial Relief. The case is continuing.

2022 an application on behalf of the Directorate of Enforcement, Ministry of Finance, Government of India relating to the ownership of land by VC as a non-resident which is contrary to the domestic regulations in India. VC asserts that this has been orchestrated by DB by alerting and assisting the government department.

August 2023 application [redacted] (summons informing DB of the proceedings issued on 02 April 2024) by VC against DB, her mother and another individual concerning the sale of one parcel of land in India and transfer of two parcel’s to DB’s mother. DB accepts that she has the full beneficial interest in the remaining pieces of land and used the proceeds of sale of the fist parcel to pay for the children’s school fees.

12 December 2022 [redacted] application by DB in India against VC’s brother concerning the shared ownership of a parcel of land in India. VC is said to be a joint owner of parts of the land and is automatically a respondent but the DB does not seek any against VC.

25 July 2023 application [redacted] in India by DB against VC’s brother and sister in law concerning jointly owned parcels of land in India. VC and others are automatically respondents but DB states that she seeks no remedy against VC.

DB and the children returned to England in September 2021. VC returned to England in January 2022. The children continue to attend their respective private schools. It is common ground that VC has maintained the mortgage on the former matrimonial home where the children and DB continue to live but has not paid any periodical payments.

VC’s application for an anti-suit injunction was referred to me and on 1 February 2024 I made an interim order against both parties preventing them each from pursuing any further litigation outside of England and Wales. The order continues to date. In the ensuing months it has become increasingly apparent that the children’s rights within the parental conflict required protection and independent advice. As such I have made the children parties to these proceedings. I am most grateful to the Official Solicitor who has agreed to act on their behalf.

VC and DB have each adduced a significant amount of evidence that is not only relevant to the application before me, but also touches upon the wider financial circumstances of the parties. Regrettably, the evidence concerning the latter has raised further questions and little progress has been made in narrowing the main financial issues between the parties. I have also heard the oral evidence of the applicant and first respondent which addressed a number of issues including VC’s habitual residence and the conduct of the parties within the different litigation that I have listed above. Finally I have had the benefit of reading the report of the jointly instructed expert Ms. Lavanya Ragunathan Fischer of the London School of Economics who has provided a helpful expert opinion on the applicable law in India and enforcement of orders made in this jurisdiction in India. X has expressed strong views about his wish to continue at his current school and what he believes are his father’s responsibilities in this regard. I will refer to the relevant parts of the evidence below.

Although the authorities that provide invaluable guidance on the powers of the court have developed mainly in the Civil jurisdiction and in particularly in the Admiralty and Commercial courts, they apply across other areas of the law that include family. Examples of its use in family cases include a helpful analysis by McFarlane LJ in Mustafa v Ahmed [2014] EWCA Civ 277 and S v S [2010] 2 FLR 502 where a ‘Hemain injunction’ which is a species of the antisuit injunction was used as an interim remedy to prevent a party pursuing divorce proceedings in another jurisdiction until the question of the court’s jurisdiction was determined (and E v E above).

The court’s approach to such an application is dictated by which of the two broad categories the case falls into. The first is commonly referred to as the ‘single forum’ cases. These are usually identified by a contractual arrangement by the parties in which they agree to be bound a particular jurisdiction (a jurisdiction or arbitration clause) or a course of conduct that presupposes exclusive jurisdiction. The second category is the ‘alternative forum’ cases where there is no agreement as to jurisdiction and the courts of different countries may exercise jurisdiction that are often founded upon the local laws to that court. As the authorities have developed, the term ‘unconscionable’ conduct on the part of the defendant has become associated with the former categories, whereas the terms ‘vexatious or oppressive’ conduct are commonly associated with the latter.

Ordinarily in alternative forum cases an application to the courts of England Wales should only be made if the courts of England and Wales are the natural forum. This is closely connected with the doctrine of comity that requires the courts of England and Wales to determine if it has sufficient ‘interest’ or ‘connection’ to the case that it is the ‘natural forum’ (see Airbus Industrie above per Lord Goff of Chieveley also quoting from Sopinka J in Amchem Products (1993) 102 D.L.R (4 th ) 96 in the Supreme Court of Canada). Therefore, I will first consider the issue of jurisdiction that includes the court’s personal jurisdiction over the defendants as well as the natural forum, before considering the conduct of DB and finally the exercise of the court’s discretion to grant an injunction.

Whilst it is relevant to DB’s conduct, no party has sought to argue that this court lacks jurisdiction on the basis that the application to the Indian courts for child maintenance was made long before there was any application to the courts of England and Wales. This is an entirely proper approach. The authorities are clear that such a consideration is not determinative of jurisdiction (e.g. see Airbus Industrie above). No party has suggested that this court does not have personal jurisdiction over the defendants. I am also entirely satisfied that this is correct.

India operates both a religious and secular system of laws and an applicant may choose under which of the two systems to initiate proceedings.

In this case DB has chosen to apply for child maintenance under Hindu laws thus engaging the provisions of the Hindu Marriage Act (1955) (‘HMA’) and the Hindu Adoption and Maintenance Act (1956) (‘HAMA’).

Habitual residence is not determinative of the issue of the Indian courts’ jurisdiction. Notwithstanding the parties habitual residence in the UK, the Indian court’s jurisdiction for Hindus is founded upon their Indian Origin and that they are Hindu.

HAMA places an obligation on both parents to maintain their children although the division of responsibility by the court as between the parents will depend on their financial circumstances. When making a decision on the ‘amount of maintenance’ , the court has a direction that will be exercised by having regard to the factors set out in s.23(2) and (3) of HAMA.

Following the decision of the Supreme Court of Indian in Rajnesh v Neha and ors [2021] 2 SCC 324, the Indian courts adopt a streamlined process that requires the provision of accurate financial information by the parties and associated criminal sanctions for providing misleading information.

Such applications will be heard in the family court as established by the Family Courts Act (1984).

Once maintenance is awarded, it is enforceable under the Civil procedure Code (1908) which includes detention of the ‘judgment-debtor’ and/or sale of his property.

The orders may be enforced outside of the jurisdiction of the Indian courts if the person against whom the order is made resides in a ‘reciprocating territory’ [Maintenance Orders Enforcement Act (1921) s. 5]. UK is such a territory.

Maintenance orders made in the courts of England and Wales are enforceable in India provided that such orders are ‘conclusive’ and ‘align’ with the laws of India.

This court must and does fully respect and recognise the sovereign authority of India to legislate and apply such laws as it deems appropriate. In doing so India has recognised the rights and obligations of Hindu parents towards their children and requires the courts of India to apply the same. It follows that this case falls into the second category of ‘alternative forum’ cases.

The parties’ respective habitual residence at the time of the application in July 2022 and thereafter has been one of the points of focus in this case. Whilst in this context habitual residence is not determinative of the court’s jurisdiction, when considering personal and familial relationships, it is compelling evidence of the parties’ respective connection to a system of laws that may help determine the natural forum for the case to be heard.

It is common ground that VC travelled to in India in August 2020 with DB and the children arriving in India in October of the same year. Both VC and DB agree that the purpose of these arrangements was to enlist the help of their extended family with their attempts at reconciliation. It is also common ground that visiting India was not intended to be a permanent relocation for DB or the children. The children continued to attend their English schools remotely in the grips of the world wide pandemic and they wished to be close to their family at such a challenging time. They returned to England in Summer 2022 where they have continued to live at the former matrimonial home. Without hesitation I find that at all material times DB and the children were and continue to be habitually resident in England.

The issue of VC’s habitual residence has been the subject of a challenge. I am entirely clear that in July 2022 he was habitually resident in the UK albeit his return to the UK was delayed by the lookout circular in India which precluded his return to the UK until January 2023 when he petitioned for divorce in the courts of England and Wales. The evidence is clear about the parties intentions and sequence of event.

VC’s subsequent habitual residence has come under a great deal of scrutiny, which has in part been born out of his puzzling reluctance to provide information concerning his whereabouts during these proceedings. I must make some allowance for the fact that for a significant portion of these proceedings he has been a litigant in person, but this does not fully explain the opaque nature of his discussions around this topic.

It is clear that since his arrival in the UK, he has spent significant periods abroad. This includes a prolonged period in the United States of America. VC explained that he has been attempting to expand his business in to the US market and he has spent sums gaining a two year visa that permits him unencumbered travel to and from the USA. He was also clear that he has no right to work in the USA and that his attempts at expanding his business westward have thus far been unfruitful. This must be considered in the context of a family that has multinational links and traveling abroad for work has been a prominent theme in their lives. For example during their marriage, for about two years VC worked in Switzerland. He kept a property but travelled back to his family or his family visited him in Switzerland. There is no suggestion that he had become habitually resident in Switzerland.

Further evidence of VC’s habitual residence includes his business that is registered in and runs from the UK, his HMRC accounts illustrate that he is a UK tax payer, a tenancy agreement showing his home address to be in the UK, although he does not appear to be paying any rent for the property, registration with a dentist that he last visited five years ago and contact with his youngest son in the UK which was formalised at the conclusion of Children Act (1989) proceedings in England and Wales. Furthermore, there is no reliable evidence that would support a finding that his habitual residence has changed since returning to the UK in early 2023. As Miss Chisholm submits in this context, ordinarily one would expect more detailed evidence about the person asserting to have habitual residence in a particular jurisdiction. I entirely agree with her observations and her submission that there is sufficient evidence to reach a conclusion on this issue. By a narrow margin I find that VC continues to be habitually resident in the UK.

This finding has two crucial consequences. Firstly, at the time of the application to the Indian courts for child maintenance, the courts of England and Wales had continuing jurisdiction over the respondents as supported by their residence and connections to England. Secondly, by operation of the legislative frame work the Child Maintenance Service had jurisdiction over issues of child maintenance by reason of parties’ habitual residence and derivation of income in England.

Conduct

DB made her application to the Indian courts at a time that that parties were staying in India and there were no proceedings in England. I have no doubt that the failed attempt at reconciliation and DB’s complaints to the Indian authorities about the conduct of VC and his family was an obvious and logical prelude to anticipated divorce and financial remedy proceedings. There is nothing in the evidence that would suggest that either of the parties anticipated divorcing in India. Indeed, VC petitioned for divorce close to time of his return to the UK. In evidence DB was surprisingly equivocal about where in her view is the appropriate forum to hear the disputes arising from the dissolution of her marriage. She clearly wished to keep all options available to her which in my judgment was rooted in her tactical approach to this issues rather than a genuine attempt at resolving the disputes efficiently and expeditiously. Unsurprisingly, Mr Roy submits that DB’s own evidence, demonstrates that she has been ‘forum shopping’ and that there can be no assurance that her future conduct in this litigation will not be impacted by her attempts at oppressing VC in his legitimate attempts at resolving the dispute efficiently and expeditiously. Further he submits that this must be considered in the context of the number of proceedings that she has issued in India and reluctant to cease.

Mr Travers strongly resist these submissions. He invites a closer analysis of all of the litigation and submits that of the eight proceedings that I have listed above, only the child maintenance application in India directly involves the parties and was issued on behalf of the children. The complaints to the police are legitimate complaints that are now investigated by the police and the proceedings by the Directorate of Enforcement, Ministry of Finance, Government of India relating to the ownership of land by VC in India has no connection to DB. The two claims relating to parcels of land involve VC’s family and he is automatically a respondent as a joint owner. However, DB is not pursuing a remedy against VC and if DB is correct in her assertions as to ownership, this can only add to the matrimonial assets and benefit all of the parties to this case. He further submits that VC dos not come to this court with ‘clean hands,’ this being a requirement for one claiming an equitable remedy. He points to the claim that VC has issued against DB’s mother in circumstances where DB fully accepts that she owns the full beneficial interest of the remaining two parcels of land and the sale of the first parcel was to fund the children’s school fees in the face of complete abrogation of responsibility by VC toward his children.

Court’s discretion

Conclusion

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