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The approach of the House of Lords in the Channel Tunnel case is particularly
striking. While maintaining that an interim injunction had to be incidental to an
attempt to enforce a substantive right and could not exist in isolation, and that the
defendant had to be amenable to the court's jurisdiction, it was held not to be
necessary that it should be ancillary to a claim for relief to be granted by an English
court, but could be ordered in aid of proceedings in a foreign court or before a foreign
arbitral tribunal. In rejecting the contrary argument advanced on the basis of The
Siskina Lord Browne-Wilkinson commented
: -
"If correct, that submission would have the effect of severely curtailing the powers of the
English courts to act in aid, not only of foreign arbitrations, but also of foreign courts. Given
the international character of much contemporary litigation and the need to promote mutual
assistance between the courts of the various jurisdictions which such litigation straddles, it
would be a serious matter if the English courts were unable to grant interlocutory relief in
cases where the substantive trial and the ultimate decision of the case might ultimately take
place in a court outside England."
His Lordship concluded
:-
"...... I can see nothing in the language employed by Lord Diplock (or in later cases in this
House commenting on the Siskina) which suggest that a court has to be satisfied, at the time it
grants interlocutory relief, that the final order, if any, will be made by an English court. ......
Even applying the test laid down by The Siskina the court has power to grant interlocutory
relief based on a cause of action recognised by English law against a defendant duly served
where such relief is ancillary to a final order whether to be granted by the English court or by
some other court or arbitral body."
Notes
[1993] AC 334 at 341.
Ibid at 342-343.
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