09/09/2024

Successful anti-suit injunction clarifies treatment of contract terms provided subsequent to the transaction

In an unusual anti-suit injunction case arising from a 2015 cross-border sale of oil, Simon Milnes KC successfully represented Augusta Energy SA (Augusta) in restraining Top Oil and Gas Development Co Ltd (Top Oil) from pursuing 2021 proceedings launched against both Augusta and its chairman personally in the Nigerian courts.

The unusual facts created particular hurdles for seeking anti-suit relief. First, the transaction involved a “fronting” arrangement, whereby the contract negotiations, pricing and receipt of cargo were handled primarily by an intermediary trading company using Top Oil’s name and credit facility. Second, while an English jurisdiction clause existed, this was found only in a set of detailed terms which were circulated after the sale transaction was initially concluded and which were not signed (nor intended to be).

In granting the injunction, the judge (Simon Salzedo KC) found that Augusta had established to the requisite high degree of probability that Top Oil was bound by the exclusive English jurisdiction clause in the detailed terms, including by analysing the contemporaneous treatment of pricing matters. The judge also dismissed an application by Top Oil to challenge the English court’s jurisdiction, or alternatively that the English court should refrain from exercising its jurisdiction on forum non conveniens grounds.

The underlying case is therefore now free to proceed towards trial on Augusta’s claims to final relief, where Augusta seeks a declaration of non-liability, compensation for breach of the choice of forum clause and a final anti-suit injunction.

Although it was dealt with relatively briefly in the judgment, an important building block of the outcome came from principles discussed by Lionel Persey QC (as he then was) sitting as a judge of the High Court in Vitol SA v JE Energy Ltd [2023] 1 Lloyd’s Rep. 558 at [15], drawing on Pagnan v Feed Products [1987] 2 Lloyd’s Rep. 601 and The Harriette N [2008] EWHC 2257 (Comm) at [70], under which a strict ‘offer and acceptance’ analysis does not necessarily apply where parties are sorting out detailed terms against the background of a concluded agreement.

This judgment will be of interest for its treatment of detailed or ‘long-form’ contract terms where a contract has already been concluded on more basic terms at an earlier stage.

Simon Milnes KC was instructed by Stephen Askins of Tatham & Co.