Mulugeta Guadie Mengiste and Another v Endowment Fund for the Rehabilitation of Tigray and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Peter Smith,Peter Smith J,MR JUSTICE PETER SMITH,Mr Justice Peter Smith,R JUSTICE PETER SMITH |
| Judgment Date | 22 March 2013 |
| Neutral Citation | [2013] EWHC 599 (Ch) |
| Docket Number | Case No: HC10C01299 |
| Court | Chancery Division |
| Date | 22 March 2013 |
[2013] EWHC 599 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Peter Smith
Case No: HC10C01299
Mr Ashworth QC (instructed by Rylatt Chubb) for the Claimants
Mr Spink QC and Mr Assersohn (instructed by MS Legal) for the Defendants
Hearing dates: 8, 10 February, 30 April 8, 9, 10 May, 13 & 14, 22 August, 30, 31 October and 6 November 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This judgment arises out of hearings before me to determine initially 3 substantive applications:-
1 The Defendants' application dated 12 th October 2010 challenging the continuation of these proceedings within this jurisdiction on the ground that England is not a forum conveniens.
2 The Claimants' application for permission to serve the Second and Third Defendants out of the jurisdiction dated 14 th February 2011.
3 The Defendants' application dated 18 th January 2012 for an order requiring the Claimants to disclose details as to the identity of the Claimants' expert (called throughout the proceedings by the name of Mr Jones ("Mr Jones").
The third application was determined by my ruling that Mr Jones' identity should remain anonymous save to Counsel for the Defendants. This posed significant difficulties I expect on the Defendants in the preparation of their case but Mr Spink QC who with Mr Assersohn appears for the Defendants accepted (unwillingly) that that was the only fair way for the Claimants to produce an expert. Basically Mr Jones was concerned that if his identity became known his life would be at risk. He was not willing to give evidence unless matters were put in place so as to preserve his anonymity. That was done by him giving evidence live with (in respect f the later evidence) a live transcription link. The former of those hearings took place at premises not within the precincts of the Court and Mr Jones felt sufficiently reassured to attend those premises. Only Mr Spink QC and Mr Assersohn attended for the Defendants. The subsequent hearings took place at the same premises on one day and within the Court on the following day with the live transcription link to the Defendants but Mr Jones' identity was preserved. By adopting that procedure it does not follow that I accepted that Mr Jones' fears were justified. In fact I do not accept them now having heard the evidence.
This case is a familiar type of skirmish case that occurs when actions are brought in England and Wales which have no apparent connection with that jurisdiction. The present dispute involves parties who are all Ethiopian and is in respect of property and assets which were based in Ethiopia. Their relationship is governed by Ethiopian law and the wrongful actions complained about all took place in Ethiopia. At first sight the basis for the case being suitable to be determined in this jurisdiction appears to be slight.
Cases like this, as I have said regularly come before the Courts. They are supposed to be dealt with quite robustly. In Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 465 F Lord Templeman gave guidance as to how these applications were to be dealt with:-
"In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre eminently a matter for the trial Judge. Commercial Court Judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the Judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Cheveley in this case in the quiet of his room without expense to parties; and that submissions will be measured in hours and not days. An appeal should be rare and the Appellate Court should be slow to interfere. I agree with my noble and learned friend Lord Goff of Cheveley that there were no grounds for interference in the present case and that the appeal should be allowed."
The Claimants in their closings used this observation of Lord Templeman to criticise the way in which the proceedings took place before me. It is dangerous to place too much reliance on that observation of Lord Templeman. For example in the case of AK Investments CGC (Appellant) v KYRGYZ Mobil Tel Ltd & Ors (Respondents) [2011] UKPC Lord Collins said this (paragraph 7):-
"Experience has shown that Lord Templeman was being over optimistic when he said, in Spiliada(at 465), that in disputes about the appropriate forum the Court would not be referred to other decisions on other facts and that submissions would be measured in hours not days. But this case has been excessively complicated by any standards. The hearings before the Deemster and the Staff of Government Division each lasted for 4 days or more. The hearing before the Board lasted 4 days. The written cases of the parties exceeded 200 pages and more than 30 volumes of documents were placed before the Board containing almost 14,000 pages, as well as 170 authorities in 12 volumes. The core bundle alone consists of 6 volumes. The list of "essential" pre reading for the Board listed documents totalling some 700 pages. All of this was wholly disproportionate to the issues of law and facts raised by the parties".
The Court of Appeal in the decision of Pacific International Sports Club Ltd v Igor Surkis [2010] EWCA Civ 753 also referred to the Spiliada case paragraph 23 (see below) but nevertheless acknowledged that there was no criticism in effect of Blackburne J's decision to hear that case over 6 days because it was "peculiarly fact sensitive" and needed a full investigation to ensure a fair and full decision could be made.
Cases of this nature have recently attracted the attention of the Supreme Court.
VTB Capital plc (Appellant) v. Nutritek International Corp. and ors (Respondents) [2013] UKSC 5 reinforced the proposition that consideration of cases like this was almost inevitably within the discretion of the judge at first instance and that the exercise of his discretion will be very rarely interfered with.
It also commented on the length of cases. Lord Neuberger for example said this:-
"81 When a court is called upon to decide whether an action should proceed in this, as opposed to another, jurisdiction, it is being asked to decide a procedural issue at a very early stage. Where, as is now the position in this case, it is common ground that the parties would have a fair trial in the competing jurisdiction, the exercise will normally involve the court weighing up a number of different factors, and deciding where the balance lies. Whilst the same considerations will not always apply to applications for permission to serve out and applications for stays of proceedings, the argument on this appeal has highlighted three general points in relation to each type of exercise.
82. The first point is that hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost. There is also a real danger that, if the hearing is an expensive and time-consuming exercise, it will be used by a richer party to wear down a poorer party, or by a party with a weak case to prevent, or at least to discourage, a party with a strong case from enforcing its rights.
83. Quite apart from this, it is simply disproportionate for parties to incur costs, often running to hundreds of thousands of pounds each, and to spend many days in court, on such a hearing. The essentially relevant factors should, in the main at any rate, be capable of being identified relatively simply and, in many respects, uncontroversially. There is little point in going into much detail: when determining such applications, the court can only form preliminary views on most of the relevant legal issues and cannot be anything like certain about which issues and what evidence will eventuate if the matter proceeds to trial.
84. This concern is not new. In Cherney v Deripaska [2009] EWCA Civ 849 , paras 6 and 7, Waller LJ said that whilst he "appreciate[d] that litigants do often feel strongly about the place where cases should be tried … disputes as to forum should not become state trials". He also lamented the "mountain of material" the Court faced in that case, and suggested that it "would have been better for both parties and better use of court time if they had expended their money and their energy on fighting the merits of the claim."
85. In Friis v Colburn [2009] EWHC 903 (Ch) , paras 3 and 5, having set aside an order for service out of the jurisdiction, Peter Smith J referred to the fact that the claimants' costs schedule was £215,280.50, following a hearing which, he said, had been "strung out by unrealistic stances and unnecessarily prolonged and complicated submissions which seem[ed] to achieve nothing other than create fogs of irrelevancy".
86. In that connection, the present case is striking, as Arnold J explained in para 3 of his judgment. The hearing before him lasted six days, after two days' pre-reading. He was faced with more than 27 bundles of...
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