Notes on anti-suit injunctions

Last year, I was invited to speak on the topic of anti-suit injunctions at a conference. In the week leading up to the conference, I published a post on LinkedIn each day about anti-suit injunctions through the ages. Starting with the 14th century, each post said a bit about the use of such injunctions in a particular century (I wrote mostly about English law).

I thought it might be helpful to have the posts in one place so I'm reproducing them here. This is not intended to be a comprehensive history of anti-suit junctions. This is just a collection of stories to illustrate how the use of such injunctions have developed over time.

14th - 15th centuries

Anti-suit injunctions date back in English law to at least the 14th century: for example, in the Pynell case an injunction was granted to restrain one party from repeatedly starting court actions against the other. That was in 1396 when Richard II (pictured) was on the throne.

In the next century there developed a practice of one English court issuing anti-suit injunctions against another. In particular, Chancery would issue injunctions against litigation in the courts of common law - for example in the Russell case in 1482, Chancery stopped a case from proceeding to judgment in the common law court. In the 17th century, this became part of the the struggle of King against Parliament (the Chancellor derived his powers from the King).

By the 19th century, the English courts were issuing injunctions to restrain litigation in other countries. English judges from that time were under no illusion that an injunction against an individual would impact on the foreign court’s jurisdiction: for example, the judge in The Christiansborg (1885) said that it was "how the proceedings in a foreign court may in effect be stayed".

16th century

The Lord Chancellor who seems perhaps to have been the first to use the anti-suit injunction extensively was Cardinal Wolsey (pictured).

This was one of the complaints made against him in the bill of impeachment in December 1529, as later recorded by Sir Edward Coke. Article 26 complained that he had intimidated judges “expressly by threats commanding them to defer the judgment, to the evident subversion of your lawes, if the judges would so have ceased.”

17th century

The contest between the English common law courts and the court of Chancery came to a head in 1616, after a series of cases when anti-suit injunctions issued by Chancery led to imprisonments, then release of the prisoners in turn by the common law courts. James I set up a commission to report on this led by the Attorney General Sir Francis Bacon (pictured). The commission concluded that there was no prohibition on Chancery issuing injunctions, and the King confirmed this by an Order in July 1616.

These events were all part of the political backdrop of the time, and in particular the struggle between Sir Edward Coke, the Chief Justice of the King’s Bench, and Lord Ellesmere, the Lord Chancellor. By 1617, both men had been dismissed and Bacon was Lord Chancellor. In an effort to restore good relations between the courts he created a code of procedure for Chancery which regulated injunctions, among other things. His code remained largely in place until the 19th century.

18th century

It seems that the legislative draftsmen in 18th century USA had learned the lessons of the conflict between English courts in the 16th and 17th centuries, and the difficulties created by anti-suit injunctions issued by one court against the proceedings of another. In March 1793 the Second US Congress, presided over by John Adams (pictured), passed a new Judiciary Act (https://lnkd.in/gUBbA5m). This included a provision that the federal courts could not issue a “writ of injunction” against proceedings in any state court.

There are indications that this provision was originally intended to have a narrow focus and not to apply to all anti-suit injunctions (see https://lnkd.in/gWHAMzg). However, over time, it evolved to become a general restriction on the power of the federal courts to issue anti-suit injunctions against proceedings in state courts, save within certain specified exceptions. It was made into a separate statute in 1874, then restated in its current form in 1948. It has become known as the Anti-Injunction Act.

(Anti-suit injunctions are of course available in the USA in other contexts, e.g. against foreign litigation.)

19th century

Dame Nellie Melba, the famous Australian soprano (pictured), was caught up in a scandal in the 1890s. She had married Charles Armstrong in 1882, but the marriage was unhappy and they separated after a year. In the 1890s, she began an affair with the Duke of Orléans (also pictured). Her husband sued for divorce in London. He also started proceedings in Vienna to force the staff of the Hotel Sacher, where his wife had stayed, to give evidence about her affair with the Duke.

Dame Nellie obtained an anti-suit injunction. By going to Vienna her husband was bypassing the English court rules of the time. He could obtain “no legitimate advantage” from the Vienna proceedings - in effect he would be getting an opportunity to examine witnesses without the respondent being present. This was one of the first times that the English courts had issued an injunction against proceedings in a country that was not part of the British Empire.

Armstrong was persuaded to drop the divorce case, but there was no reconciliation: the couple finally divorced in 1900. The Duke left as well; he went off on a 2-year African safari. Dame Nellie never remarried.

20th century

In February 1982, Laker Airways went into liquidation owing US$270 million. Founded by Sir Freddie Laker (pictured), it had been a low-cost pioneer, flying people across the Atlantic for just ￡59. However, over-expansion and other factors led to its collapse.

Later that year, the liquidators started a billion-dollar antitrust action in the US against 10 airlines, including PanAm, BA and KLM. They alleged that predatory pricing by competitors had driven Laker out of business.

Four defendants obtained an anti-suit injunction in England. That led to an anti-anti-suit injunction in the US restraining the other defendants from doing the same. Appeals went up to the House of Lords in England and the D.C. Circuit court in the US, resulting in significant judgments about such injunctions. The impasse was resolved by the House of Lords removing the English injunction (although another injunction was later issued to prevent the liquidators suing two British banks in the US).

The Laker Airways litigation was settled in 1985. Sir Freddie moved to the Bahamas, from where he ran a smaller airline flying between Freeport and various US cities. He died in 2006.

[This is the end of the series of posts. I've included below a picture of me speaking at the conference. Thanks to Katherine Reggler for the photo, and for inviting me to speak at the conference.]