Al Assam v Tsouvelekakis. Yet another lengthy forum non conveniens discussion, keeping the case in E&W and not Cyprus.

Update 22 08 2022 a freezing order in the case was granted on 11 August.

Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) shows the way many claims involving EU Member States facts or defendants are likely to go, until the novelty of newly found forum non freedom wears off perhaps: with intensive forum non conveniens-based jurisdictional challenges.

The defendant is domiciled in England and Wales. The claimants are the settlors of 2 Cypriot trusts who claim for the losses suffered in connection with the trusts’ investments. The trusts were both established under the International Trusts Law of the Republic of Cyprus.

As in Klifa v Slater, the forum non test, following Spiliada and VTB v Nutritek, [12] involves two limbs: Under limb 1 of the test, the Defendant must establish that the courts of Cyprus are both (i) “available” and (ii) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the Defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.

On availability, there is a bit of to and fro and each other’s Cypriot law legal experts, particularly on the territorial jurisdiction under residual Cypriot rules. However the conclusion [26] is that the Cypriot courts are ‘available’.

Obiter, Richards DJ discusses whether if there is no availability under Cypriot law, there might be availability if there is a submission to jurisdiction and/or an agreement /choice of court.

Discussion here was first whether A26 Brussels Ia could remedy the lack of territorial jurisdiction under Cypriot law. Unlike A25 choice of court, A26 does not include language making the defendant’s domicile in the EU a precondition for its application. At [32] the conclusion for the purpose of these proceedings is that there is a real risk that the Cypriot courts will not have jurisdiction on the basis of A26.

The discussion then [33ff] turns to the Cypriot courts being the clearly or distinctly a more appropriate forum with the conclusion being in the negative.

Helpfully, and suggested by counsel, the judge puts the following structure to the analysis:

a) personal connections ([39]: defendant’s residence in England remains a relevant factor pointing towards the English courts being the appropriate forum);

b) factual connections (held: correspondence between the parties will be of more relevance than the physical location of parties in Cyprus);

c) evidence/convenience/expense (conflicting factors here but none leading overwhelmingly to Cyprus);

d) applicable law (most likely Cypriot law for many of the claims however ia given the similarity with English law, this is not an overwhelmingly relevant issue [56] and some Swiss law will have to be applied anyways); and

e) the “overall shape of the litigation”, held [59] not to be Cypriot.

Limb 2, the requirements of justice, is considered obiter under two angles [61]: delays and the possibility of statutes of limitation kicking in. On the delays, [67] comity and caution to express chauvinistic views upon a friendly jurisdiction argue against a finding of unavailability of justice on this ground, particularly as the experts’ views on this were inconclusive; the possibility of statute of limitation is held [68] largely to be of the claimants’ own making (ia because they had started but discontinued proceedings in Cyprus. Limb 2 therefore, had it mattered, would not have been satisfied and had limb 1 been met, a stay of the proceedings in England would have been ordered.

Geert.

Klifa v Slater. Post Brexit, a forum non challenge (for the courts of France) rejected ia on the basis of costs recovery.

In Klifa v Slater & Anor [2022] EWHC 427 (QB), concerning a ski accident in Courchevel, France, the Claim Form was issued on 14 January 2021, just within the three year limitation period of England and Wales but just after the Brexit “Exit Day” also know as IP day (Brexit implementation day) (of 31 December 2020). Defendants take advantage of that to argue a forum non conveniens defence (which readers will know would have been impossible under Brussels Ia). France is suggested to be the ‘most appropriate forum’.

The skiing accident took place on 27 January 2018 and when (and as still is the case) the Claimant was domiciled and resident and habitually resident in France, the First Defendant was domiciled and resident (they being on holiday) in England & Wales, and the Second Defendant (the insurance company) was domiciled in England & Wales. Under Rome II, French law is the applicable law, other than for procedural law, including as to recovery of legal and other costs of the litigation, which is subject to English law, lex fori.

That latter element returns (with reference to ia Wall v Mutuelle de Poitiers) [25] as part of the forum non conveniens assessment, seeing as (Dagnall M) ‘in consequence of the difference in their methods of adducing expert evidence, the English & Welsh jurisdiction procedural approach is likely to be considerably more expensive than that in France, and which is reflected in the costs rules and approach of each country.’

At [40] Master Dagnall sums up the many issues leading to the case being very ‘French’ in nature, deciding on balance however [42] that the defendants have not met the (high hurdle) of proving that France is “distinctly” or “clearly” the more appropriate forum.

At [44] ff he holds obiter that even if they had met that test, a stay in favour of proceedings in France would not assist with “achieving the ends of justice”L the second part of the forum non test. At [48] two factors are singled out: enforcement will have to take place in England; and a lot of work prior to the claim form being issued was carried out prior to IP day, when forum non was not an issue. Recovering those costs would be impossible in France.

The point has been made ad nauseam by many and this case is a good illustration: post Brexit, forum non is back with a vengeance and it is a time-consuming and costly business.

Geert.

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