Forum non conveniens
Disputes & Litigation

England must be the appropriate forum of the disputes for the hearing and determination of the disputes sought to be resolved by English courts. In international disputes, simply because the dispute has some connection with England, does not lead to the conclusion that an English court will allow proceedings to become before them, and be heard and determined by them. One of the factors that the court takes into consideration in applications to commence litigation in England is whether England is the forum conveniens. If the court does not make such a finding, England will be forum non conveniens and permission will not be granted to serve the claim form out of the jurisdiction.

The test to be applied when assessing whether England is the forum conveniens was decided in Spiliada Maratime Corporation v Cansulex Ltd by the House of Lords. In that case, it was for the court to identify the forum ‘that the case may be tried more suitably in the interests of the parties and for the ends of justice’. It is for the claimant to show that England is the most appropriate forum, and must do so persuasively.

When weighing up whether England is the appropriate forum, the court will consider, inter alia:

1. the nature of the dispute
2. the location of evidence that would be disclosable in the litigation
3. the location of witnesses
4. relevance of local knowledge
5. expert evidence that is likely to be required and the expense that is likely to be incurred
6. grounds under which the jurisdiction of the court is sought to be invoked
7. the location of the litigant companies
8. the relative relevance of English law and whether the law of another place has a closer connection to the disputes
9. the nature of the relief sought
10. whether proceedings have already been commenced in another jurisdiction.

Having conducted its enquiry, the court will assess whether justice is likely to be done in the foreign jurisdiction. Provided that the court takes the view that justice will substantially be done, this obstacle may well be overcome.

The relevant time to apply the test is at the date of the application for leave to serve out of the jurisdiction. In the event that the decision is appealed (for refusal) or contested by the defendant, intervening events may be used to enlighten the court as to the appropriateness of the jurisdiction or otherwise.