QCR Spring 2018: When will the court stay an English claim on forum non conveniens grounds and set aside an anti-suit injunction?

Owners of the ship Al Khattiya v Owners and/or demise charterers of the ship Jag Laadki (the "Al Khattiya") [2018] EWHC 389 (Admlty)

Facts

Following a collision between the LNG carrier Al Khattiya and the VLCC Jag Laadki in UAE territorial waters, the owners of Al Khattiya served proceedings in rem at Milford Haven on a sister ship of the Jag Laadki, the Jag Pooja, founding jurisdiction as of right. The defendants accepted liability for the collision, but disputed quantum.

The defendants commenced proceedings in the UAE which has significantly lower limits of liability than the UK. The claimants sought and obtained an anti-suit injunction from the English court to restrain the UAE proceedings on the basis that they were hopeless and thus vexatious and oppressive.

The defendants applied to stay the English claim on forum non conveniens grounds, and to set aside the anti-suit injunction, but the application was dismissed.

Judgment

1. By applying The Spiliada [1987] 1 Lloyd's Rep 1, the court found that where the claimants had established proceedings as of right by serving the in rem claim, the burden of proof was on the defendants to show not just that England was not the natural or appropriate forum for the trial but that UAE was clearly and distinctly the more appropriate forum for the trial. The defendants had failed to show that UAE was such a forum.
2. Where liability was admitted, as here, and only quantum remained in dispute, that cut across the very factor which would often have made the country where the collision took place the appropriate forum due to the presence of relevant witnesses, associated investigations, etc.
3. Connecting factors such as the languages spoken by the claimants' witnesses of facts and the location of the claimants' expert witnesses may weigh against the place where the tort was committed being an appropriate forum, and point to England as the appropriate forum for the trial.
4. The defendants' application for a stay of the action on forum non conveniens grounds was therefore dismissed.
5. Obiter, for an anti-suit injunction to be granted, it was not necessary for England to be the natural forum. It sufficed that England was the natural forum for determining whether the foreign proceedings were vexatious and/or oppressive.

Comments

This judgment provides a helpful analysis of the relevance of the place where the tort occurred when considering the appropriate forum in forum non conveniens cases.

The judge held that the place where the tort was committed was only relevant as a starting point.  Apart from the connecting factors referred to above, the judge also referred to the following as further connecting factors in this case which pointed towards England as the most appropriate forum:

• Both parties were represented by English P&I Clubs, and by specialist London shipping solicitors and Counsel, who were already very familiar with the issues arising.
• The claimants' technical managers were based in London and much of the relevant documentary evidence was in London.