The Court of Appeal has granted an anti-enforcement injunction restraining a US company from taking steps to enforce a US judgment in the US courts where such enforcement exorbitantly interferes with the jurisdiction of the English courts.
The Court of Appeal's recent decision in SAS Institute Inc v World Programming Ltd1  EWHC 2481 (Comm) represents a rare example of the English courts granting an injunction to restrain enforcement in a foreign country of a judgment given in a court of that country in respect of assets in this jurisdiction.
The jurisdiction of the English courts to grant an anti-enforcement injunction, a form of anti-suit injunction, is well established yet rarely exercised, in part owing to the risk it poses to cross-border recognition and enforcement of judgments as well as the international law doctrine of comity.
In granting the injunction in SAS Institute Inc v World Programming Ltd, considered by the US courts to be "an unwelcome interference",2 the Court of Appeal confirmed its preparedness to restrain foreign enforcement actions against assets situated in England (over which the foreign court lacks jurisdiction) that infringe the sovereignty of the United Kingdom.
The Court's decision also clarifies the test for the granting of post-judgment injunctive relief and considers the operation of, and limits upon, the international law doctrine of comity.
The dispute between SAS Institute Inc. ("SAS"), a US company, and World Programming Ltd ("WPL"), a UK company, has a complex procedural history that stretches back over a decade. At the centre of the dispute is SAS's claims that WPL infringed copyright and acted in breach of a licence in creating data analytics software that purportedly replicated much of the functionality of SAS's own software.
The English liability proceedings
This English High Court dismissed both of SAS's claims in 2013.3 Mr Justice Arnold concluded that although WPL's use of SAS's software had breached the terms of its licence, those terms were null and void pursuant to the provisions of the European Computer Programs Directive.4 These provisions permit a licensee to observe, study and test the functionality of software in order to understand the ideas that underlie it. SAS appealed the decision, but this was also dismissed by the Court of Appeal on the basis of the European Computer Programs Directive.5
The North Carolinian liability proceedings
Before the English proceedings had concluded, SAS issued a claim in North Carolina (its place of domicile). WPL unsuccessfully challenged the jurisdiction of the North Carolina court on forum conveniens grounds and subsequently lost the substantive claim on the merits. The jury set compensatory damages at approximately US$79 million. WPL appealed the decision to the Courts of Appeal of the Fourth Circuit and then by a petition to the Supreme Court, but to no avail.
The English enforcement proceedings
SAS subsequently sought to enforce aspects of the North Carolina judgment (amounting to approximately US$26 million) in England. The High Court gave judgment declining to do so on a number of grounds, including issue estoppel and abuse of process (the "Enforcement Judgment"). At this point, the decision that the North Carolina judgement would not be recognised or enforced in England and Wales became final.
The Californian enforcement proceedings
Nonetheless, the Enforcement Judgment did not affect the validity and enforceability of the North Carolina judgment as a matter of North Carolina law, nor as a matter of the law of other American states. SAS obtained recognition of the judgment in California and has since taken a number of steps to avail itself of the enforcement procedures available under Californian law.
In particular, SAS sought orders from the California courts requiring WPL:
(a) to assign debts owed to WPL from its customers anywhere in the world (including the US), except the UK (although SAS reserved the right to seek an order extending it to UK customers) (the "Assignment Order"); and
(b) to turn over to a US Marshal payments from customers located anywhere in the world, including the UK, wherever those payments were received, which, in practice would be WPL's bank accounts in the UK (the "Turnover Order" and, together with the Assignment Order, the "Orders")
After the California court indicated that it would grant the Orders, WPL obtained, on an ex parte basis, an injunction from the English High Court, granted by Mr Justice Knowles. The injunction prohibited SAS from taking steps to seek either the Assignment Order, the Turnover Order or any similar relief from any court in the US.
The High Court Decision
The High Court declined to continue the injunction previously granted by Knowles J following the return date hearing in May 2019. Mrs Justice Cockerill held that it would take exceptional circumstances, generally involving facts akin to a fraudulently obtained judgment rather than "mere exorbitance", to persuade the Court to grant an anti-enforcement injunction.6
On the facts, Cockerill J concluded that the Orders would not "reach into the jurisdiction in a markedly exorbitant fashion", as they would not require WPL to take any steps in England.7 Cockerill J also rejected WPL's argument that the effect of the Orders would be to undermine or interfere with the Enforcement Judgment, in which the English court had confirmed that it would not permit SAS to make use of the English court's enforcement procedures.
Grounds for Appeal
WPL appealed the decision on the grounds that the Orders would constitute an illegitimate interference with the enforcement jurisdiction of the English court. WPL submitted that because the Orders would reach into and affect assets within England, they created substantively the same result as if SAS had succeeded in enforcing the North Carolina judgment in England.
The Court of Appeal's Decision
The Court of Appeal allowed WPL's application in part, granting an injunction preventing SAS from seeking: (i) an Assignment Order extending to debts situated in England; and (ii) a Turnover Order relating to any bank accounts held in the English jurisdiction. The original injunction was, however, discharged on the grounds of being too broad (its scope preventing SAS from enforcing the North Carolina judgment against WPL's assets in the US under the relevant US laws). This, the Court of Appeal acknowledged, would itself represent "an exorbitant exercise of jurisdiction by the English court, contrary to principles of comity…".8
In the leading judgment, Lord Justice Males held that both of the Orders were exorbitant, being contrary to the internationally accepted principle that enforcement of a judgment is a matter for the courts of the state where the assets against which enforcement is sought are located. Males LJ found that the High Court had erred in its conclusion that the Orders did not compel WPL to take steps in England in respect of assets situated in the jurisdiction. Accordingly, the Court of Appeal considered that an injunction was necessary to protect both WPL and the jurisdiction of the English courts from the extra-territorial effect of the Orders.
In reaching its decision, the Court of Appeal considered a number of important issues of general application, including when debts are deemed to be situated in the UK, the territoriality of the Court's enforcement jurisdiction, and the meaning of comity in practice.
Situ of debts
The general rule in English law is that a debt is situated where the debtor is domiciled. This can be displaced if the debt is owed pursuant to an agreement providing for arbitration with a seat in England or the exclusive jurisdiction of the English courts.9
Applying this principle, the Court of Appeal considered that the debts of the majority of WPL's customers outside of the UK (including in the US) were in fact situated in the UK because the debts were subject either to an English seat of arbitration, or to the exclusive jurisdiction of the English courts. As such, these debts were in the same position as debts due from UK customers and accordingly fell outside of the reach of the California court.
Territorial enforcement of judgments
In reaching its conclusion that the California court lacked enforcement jurisdiction over WPL's assets located in England, the Court of Appeal affirmed the distinction between personal jurisdiction and subject matter (or enforcement) jurisdiction, which was authoritatively considered by the House of Lords in Société Eram Shipping Co Ltd v Cie Internationale de Navigation.10
Applying Société Eram, the Court concluded that while the California court had personal jurisdiction over WPL and was free to determine what process of enforcement should be available against assets within its own jurisdiction, such enforcement processes should not attempt to seize assets situated within a foreign jurisdiction or compel a person to do acts within its boundaries.
Although the Orders operated in personam against WPL, in substance they required positive action in England (e.g. WPL's staff based in England providing instructions to WPL's banks). The Court of Appeal therefore confirmed that the mere fact a foreign court's order is in personam does not exclude the possibility that an order could be contrary to international law if it had extra-territorial effect.
The Court of Appeal considered that whilst anti-enforcement injunctions will only rarely be granted, there is no requirement of exceptionality in addition to the general test for the grant of an anti-suit injunction.11 The Court distinguished the case from previous cases in which anti-enforcement injunctions had been refused. In those cases, the applicant sought to prevent any enforcement of a foreign judgment, whereas WPL only sought to restrain certain kinds of enforcement, namely the "exorbitant" aspects of the Orders.
The demands of comity
Finally, the international law doctrine of comity (that is, the internationally recognised principle that courts recognise and enforce other courts' decisions) was an important consideration in this case. Ultimately, the Court of Appeal granted an injunction it recognised would interfere, even if only indirectly, with the process of the US courts and that clear justification for making such an order would be needed.12 However, it concluded that comity was a "two-way street" and the requirement for mutual respect between courts entails a recognition of the territorial limits of each court's enforcement jurisdiction.13
The Court of Appeal also considered a number of other factors that limited the scope of comity in the circumstances of this case. In particular, the Court recognised that an anti-enforcement injunction risked rendering the entire liability proceedings of the foreign court moot.14 In this case, however, WPL did not seek to prevent SAS from enforcing its US judgment in its entirety, but only sought to restrain the extra-territorial effect.
The judgment by the Court of Appeal represents the latest, but unlikely the last, development in a decade-long dispute that has pitted the jurisdiction of the English courts against that of the courts of various US states. The decision will be of considerable interest to not only the Californian court seized of the matter, but also foreign courts called upon to grant enforcement action affecting, even indirectly, assets located in England.
English parties, as well as foreign parties with a significant asset base in England, are likely to welcome the decision, whereas foreign companies seeking to enforce foreign judgments that bite against English property should treat the decision as a note of caution.
1  EWHC 2481 (Comm).
2 Ibid., at , when describing the view of the US Courts to the anti-suit injunction granted by Mr Justice Knowles to WPL (ex. parte to SAS) on 21 December 2018.
3  EWHC 19 (Ch).
4 Council Directive 91/250/EEC.
5  EWCA Civ 1482.
6  EWHC 2481 (Comm) at .
7 Ibid., at .
8 Ibid. at .
9 Hardy Exploration and Production (India) Inc v India  EWHC 1916 (Comm),  Q.B. 544 applied. See /publications/alert/third-party-debt-orders-powerful-tool-international-enforcement.
10  UKHL 30,  1 A.C. 260.
11 In reaching this decision on the non-exceptionality of anti-enforcement injunctions, the Court applied its decision in Masri v Consolidated Contractors International Co SAL  EWCA Civ 303,  Q.B. 450.
12 Ibid., at .
13 Ibid., at .
14 The Court applied the decision in Ecobank Transnational Inc v Tanoh  EWCA Civ 1309,  1 WLR 2231I in which Clarke LJ held that "If successful they [anti-enforcement injunctions] often mean that the time, effort, and expense, often considerable, will have been wasted both by the parties and the courts and others. Comity between courts, and indeed considerations of public policy, require, where possible, the avoidance of such waste."
Joseph Fox-Davies (Trainee Solicitor, White & Case, London) and Emma Shields (Professional Support Lawyer, White & Case, London) contributed to the development of this publication.