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Forum non conveniens is where the court decides to stay proceedings on the ground that there is another more suitable forum for the case to be tried. Even in cases where jurisdiction has been founded as of right, i.e. where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may then apply to the court to exercise its discretion to stay proceedings on the ground of forum non conveniens.

This principle, although long established in Scottish Law, was first recognised in England in the ‘70s MacShannon v Rockware Glass Ltd 1978 AC 795 after The Atlantic Star [1974] AC 436. At the time, the common law on the topic was subject to much confusion as to how the English courts should really apply this principle.

The decision of Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10 (19 November 1986) was therefore undoubtedly welcoming. The principles which the courts of this country should apply were comprehensibly reviewed and closely analysed by the House of Lords. In particular the speech of Lord Goff of Chieveley restated how to apply the principle in practice and thought it desirable to consider the relevance of what is called a “legitimate or personal advantage”.

House of Lords observed that there are two key situations:

1. Where the claimant is entitled to commence an action in this county, as of right, and


2. Where the claimant can only commence an action in England with the leave of the court.

In the first situation the court, applying the doctrine of forum non conveniens, will only stay the action if the defendant satisfies the court that some other forum is more appropriate. Whereas in the second situation, the court applying the doctrine forum non conveniens will only grant leave if the claimant satisfies the court that England is the most appropriate forum to try the action.

It is important to remember however that the question is not one of “convenience”, but of “suitability” or “appropriateness” of the relevant jurisdiction. There may be other matters which naturally and inevitably help to produce in many cases conflicting evidence, optimistic-gloomy expense, delay and inconvenience. But it is imperative not to allow it to mislead us into thinking that the question in issue should be one of “mere practical convenience”.

Whatever the reasons may be advanced in favour of a foreign forum, the claimant would be allowed to pursue an action which the English court has jurisdiction to entertain, if it would be unjust to the claimant to confine him to remedies elsewhere.

Lord Goff of Chieveley summarised the law as below:

1. A stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitability for the interest of all parties and end of justice.


2. In general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. If the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should take place in this country.


3. If the claimant has founded jurisdiction as of right in accordance with the law of this country, this itself gives the claimant an advantage in the sense that the English court will not lightly disturb jurisdiction so established.
   
   Therefore the defendant cannot merely suggest that England is not the natural or appropriate forum for the trial, but has to establish that there is another available forum which is clearly more distinctly appropriate than the English forum.
   
   For example if the defendant’s connection to the English forum is a fragile one, e.g. he was served with proceedings during a short visit to this country it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas.


4. When exercising its discretion the court should first see what factors there are which point in the direction of another forum. The court must first look at the connecting factors and these will include not only factors affecting convenience or expense (such as availability of witnesses) but other factors; such as the law governing the relevant transaction, where the parties respectively reside or carry on business and importantly that the claimant will not obtain justice in the foreign jurisdiction. In conclusion the court should consider all the circumstances of the case.

Quite importantly the House of Lords very sternly asserted that the appellate court should be slow to interfere with the decisions of the trial judge especially with the judge’s exercise of his discretion.

Today, these guidelines are constantly used by the court when deciding whether a claim should be stayed on the grounds of forum non conveniens.

In the more recent case of Sebastian Holdings v Deutsche Bank [2011] CA LLR 106 the Court of Appeal reflected on the principles set out in Spiliada in the light of the reflexive effects of the Judgments Regulation.

This was a case that involved a series of agreements and the principle issue in the appeal was the construction of jurisdiction clauses between the bank and its customer. Most provided for the jurisdiction of the English courts and one provided for jurisdiction of the courts of New York.

The appeal by Sebastian Holdings Ltd was against the ruling of Walker J holding that England was the most appropriate forum for the hearing of the dispute between the parties, and an application for permission to appeal against the judgment of Burton J refusing to stay English proceedings.

In his decision Burton J relied on the decision of Gross J in Import Export Metro Limited v Compania Sud Americana de Vapores SA [2003] 1 Lloyds Rep 405 and Gloster J in Antec International Limited v Biosafety USA inc [2006] EWHC 47 that parties will be held to their contractual choice of English jurisdiction, unless there were overwhelming, or at least very strong, reasons for departing from the rule. He then concluded that he was not satisfied that there were exceptional circumstances or strong reasons why New York was clearly the more appropriate forum or why exceptionally the parties should not be kept to their bargain for English jurisdiction under those agreements.

The Court of Appeal was slow to interfere with the decision of the lower court judge and held that the lower court judge had carefully reviewed authorities which have considered the application of the principles in Spiliada, the availability of witnesses, the prior existing proceedings in New York, its ability to deal with the issue, the scope of the action in England and all relevant matters.

In the recent decision Amtrust Europe Limited v Trust Risk Group Spa [2015] EWCA Civ 437 the Court of Appeal dismissed the defendant’s appeal against the order of the lower court where the Mr Justice Blair had founded that the court had jurisdiction to try the action which concerned an alleged misappropriation of premiums by the Defendant brokers based in Italy. Court of Appeal considered whether “one stop/one jurisdiction” presumption found in the case of Fiona Trust v Privalov [2008] 1 LLR 254 should be applied. It however held that whilst Fiona Trust was a good starting point, the decision in Sebastian Holdings v Deutsche bank (No2 [2011] LLR 106 was more appropriate.

In particular the Court of Appeal concluded that in some cases the first instant judge may have to reach a view e.g. as to where the agreement was made or broken, where the defendant is domiciled, or as to which forum is most convenient. In respect of such matters, the appellate court will be reticent in reaching a contrary view.

The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. Any dispute over the appropriate forum is complicated by the fact that each party is seeking an advantage and may be influenced by considerations which are not apparent to the judge or considerations which are not relevant for his purpose.

Author – Sobashni De Silva

Sobashni De Silva is a Director at Duncan Lewis and specialises in high value commercial claims in the Litigation Department. She is has over 10 years PQE and joined Duncan Lewis in 2014 after working for number of boutique city firms. You can contact her on 020 3114 1180 or sobashnid@duncanlewis.com.

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