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ondon) Ltd (The Padre Island) (No 2) [1990] 2 Lloyd's Rep 191 the House of Lords ruled that a pay to be paid clause was binding on a third party claimant and thus operated to defeat any action under the 1930 Act. NI thus had no cause of action in English law.
NI's solution was to instigate proceedings against TT in Finland under s67 of the Finnish Insurance Contracts Act 1994. That Act more or less replicates the English 1930 Act, with the important difference that pay to be paid clauses are arguably regarded as ineffective. TT was served with the proceedings in March 2003. TT's response was to issue an arbitration claim form in England, seeking a declaration that the claim by NI against TT was governed by English law and had to be brought in arbitration, and also seeking an anti-suit injunction preventing NI from maintaining its Finnish action. In the meantime the matter went to the Finnish courts, and they ruled that the action could be heard in Finland by reason of the operation of art 5(3) of Council Regulation 44/2001, Finland being the place in which the loss — the 'harmful event' — occurred. The Finnish court also decided that the arbitration clause did not apply to NI's claim as NI was not a party to the insurance agreement between BMO and TT. The substantive issues in the claim remained unresolved.
Thereafter, the arbitration claim came before Moore-Bick J, and he granted both the declaration and the anti-suit injunction. NI appealed to the Court of Appeal.
The scope of the arbitration clause
The initial question was whether the arbitration clause was applicable to a claim by NI against TT; only if that were the case could any issue of remedy arise. The Court of Appeal, endorsing the reasoning of Moore-Bick J, held that the claim fell within the arbitration clause. It was necessary initially to attempt to classify the nature of NI's action against TT under s67 of the Finnish Act, and English law classified that action as one based on the contract of insurance rather than one arising from the independent operation of the statute. Once that conclusion had been reached, it followed that any claim by NI against TT was subject to the terms of the insurance agreement, including the arbitration clause. The Court of Appeal accordingly upheld Moore-Bick J's grant of a declaration to that effect.
The anti-suit injunction
The anti-suit injunction granted by Moore-Bick J was challenged on two grounds: there was no jurisdiction to grant it; and even if that was wrong then the Court should not have exercised its discretion in favour of grant.
The jurisdictional problem was raised by the 'first seised' rule in art 27 of Council Regulation 44/2001. However, that rule applies only to an agreement which falls within the Regulation, and art 1.2(d) excludes 'arbitration' from its scope. Aikens J in Navigation Maritime Bulgare v Rustal Trading Ltd and others (The Ivan Zagubanski) [2002] 1 Lloyd's Rep 106 had considered this matter, and had come to the conclusion that an issue which relates primarily to arbitration, including the validity and scope of an arbitration clause, is outside the Regulation and is not, therefore, subject to the first seised rule. The Court of Appeal in Through Transport gave its wholehearted endorsement to Aikens J's reasoning. While it was the case that the threshold issue before the Court of Appeal was whether Regulation 44/2001 applied at all, that issue was not one which was subject to the first sei