Breaching an anti-suit injunction: Prince discovers no one is above the law

19 February 2019

In Mobile Telecommunications Co KSC v HRH Prince Hussam bin Abdulaziz au Saud[1] the High Court sentenced Prince Hussam, a Saudi Prince, to twelve months imprisonment for contempt of court for breaching an anti-suit injunction. The judgment highlights the English court’s willingness to enforce anti-suit injunctions, even resorting to severe methods to do so.

Mobile Telecommunications Company (MT) commenced LCIA proceedings against Prince Hussam (PH) pursuant to a loan agreement. PH fully participated in the arbitration and lost; the tribunal finding he owed more than US$0.5bn to MT. PH challenged the award in the English High Court but was unsuccessful.

Having lost the arbitration, PH revived competing proceedings he had initiated in Saudi Arabia that had been stayed pending the outcome of the arbitration. MT applied for an anti-suit injunction preventing PH from continuing with the Saudi proceedings and requiring him to withdraw them. The Court granted the injunction, finding that the Saudi proceedings were in breach of the arbitration clause and vexatious. The order was served on PH by various methods as specified therein and by other informal routes.

Nevertheless, PH actively pursued the Saudi proceedings, obtaining a judgment in his favour. MT notified PH that he was in breach of the injunction and in contempt of court. Further, MT warned PH that unless he brought the Saudi proceedings to an end and reversed or discharged the judgment, it would commence committal proceedings against him. PH ignored these warnings so MT commenced committal proceedings. A hearing was listed, which PH chose not to attend.

At the committal hearing, the Court was satisfied to the criminal standard that PH had committed the contempt; he had actively pursued the Saudi proceedings which were designed to reverse the LCIA award.

The Court was therefore required to determine whether the particular circumstances should result in a sentence of imprisonment, considering the guidance set out in Sanchez v Oboz[2]. Jacobs J held that they were. He said that anti-suit injunctions are important orders intended to preserve rights and breach of them is as serious as breach of a freezing order (which usually merits a sentence of imprisonment). PH had deliberately breached the injunction so as to flout the London arbitration, demonstrating an intent to ignore the present proceedings and continue the Saudi proceeding which led to the anti-suit injunction in the first place. Further, he had failed to advance any mitigating factors or an explanation for his actions. The Court concluded that a simple fine would be ignored and there was no practical alternative to a prison sentence. Bearing in mind that the shortest period of imprisonment necessary should be awarded, the Court held that in this case, 12 months was appropriate.

[1] [2018] EWHC 3749 (Comm)

[2] [2016] 1 F.L.R. 897