#4996 - Deripaska V. Cherney - Conflict of Laws BCL

Deripaska v. Cherney

Facts

Issues

(1) If a court has concluded, in a leave to serve out case, that the natural forum is other than England, is it open to the court still to find England the "proper forum", i.e. the place where, in the interests of the parties and the ends of justice, the case should be tried?

(2) If the answer to the first question is that the court can conclude England is the "proper forum", in what circumstances can it so conclude and did the judge (a) direct himself appropriately and (b) if so, did he have evidence, or evidence of sufficient cogency, on which he could reach the conclusion he did?

Argument

It is said by those representing Mr Deripaska that, having found Russia to be the natural forum, that was the end of the matter and the court simply had no business going into the question whether a trial would ever take place in Russia or as to whether a fair trial could be obtained in Russia. That second question might be relevant in a stay case, where the English court has jurisdiction and is considering staying the action, but is not (so it is submitted) a question the court considers when leave is being sought to serve out and the court has concluded that the natural forum is not England.

Mr Malek's argument involved suggesting that in that summary Lord Goff was using the word 'appropriate' in the sense of 'natural'. His argument was that, once the court had found that a plaintiff had failed to establish that England was the "natural" forum, that concluded the position. He submitted that in a stay case once a defendant had failed to show that another jurisdiction was the "natural" forum that was the end and no second stage was necessary and thus he said the "obverse" of that was that a conclusion that England was not clearly the natural forum concludes the argument in a service out case.

Holding

If he is right, then the object (as Lord Goff put it "at bottom") of achieving the forum in which the case can be tried "for the interest of all the parties and for the ends of justice" will, in many service out cases, not be achieved. It is unlikely Lord Goff intended that and in my view it is clear he did not. Certainly if the natural forum was unavailable that would provide a strong basis for the court giving leave to serve out, but that is not the limit of the court's powers.

Furthermore Lord Goff was not using the word "appropriate" in the sense simply of "natural". The use of the word "appropriate" as opposed to "natural" in that summary was, I think, deliberate. In the summary Lord Goff has not gone through a two-stage process; he has gone straight to what is the ultimate question – what is the forum where in the interest of the parties and the ends of justice the trial should take place?

But in the The Spiliada Lord Goff had made clear that it would be better to distinguish between "natural", i.e. the forum with which the case had the most natural connection, and "appropriate", which may be different, to meet the ends of justice.

That summary correctly emphasises, in relation to service out, the distinction between what may at stage one seem the "natural forum", as the place with which the case has the closest connection, and ultimately the "appropriate or proper forum" which a plaintiff can establish, even if England is not the "natural forum" if justice requires that permission to serve out be given.

Decision that justice will not be done at the “natural forum”

First, so far as establishing that there are factors that make England an appropriate forum despite another forum being natural, one factor, that justice cannot be achieved in that natural forum, requires "cogent evidence."

The requirement of cogent evidence was based on a passage from Abidin Daver which read:

“The possibility cannot be excluded that there are still some countries in whose courts there is a risk that justice will not be obtained by a foreign litigant in particular kinds of suits whether for ideological or political reasons, or because of inexperience or inefficiency of the judiciary or excessive delay in the conduct of the business of the courts, or the unavailability of appropriate remedies”

It does not follow that there is a requirement for "cogent evidence" or any particular kind of evidence to establish all other factors which may lead the court to be persuaded that, despite somewhere else being the natural forum, England is the forum where it is in the interests of all parties and the ends of justice for the case to be tried. The requirement is that the plaintiff, or now the claimant, should "clearly establish" that England is the appropriate forum in that sense. This may be a distinction without much difference but it must not be forgotten that the judge is deciding whether a discretion should be exercised, and some points may seem more powerful on the evidence that he has and some less, but it is for the judge to evaluate the same and reach his conclusion.

He is in many instances seeking to assess risks of what might occur in the future. In so doing he must have evidence that the risk exists, but it is not and cannot be a requirement that he should find on the balance of probabilities that the risks will eventuate, e.g. as in this case that assassination will occur… That involves (1) assessing whether on the evidence a trial would be likely to take place in Russia; (2) if not, because Mr Cherney says he will not go there, whether Mr Cherney has shown that he has well-founded reasons why he will not go to Russia and (3) whether in any event Mr Cherney has shown on cogent evidence that there is a real risk that he will not get a fair trial there.

I should add the following, having regard to a further point made by Mr Malek. Mr Malek sought to add a requirement that the court could not hold England to be the appropriate or proper forum unless there was a sufficient English interest over and above (as I understood his argument) the requirement that one of the gateways such as contract made in England was established. In my view there is no such requirement; the gateways under 6BPD3 3.1 supply the English connection.

In considering whether England was the proper forum despite Russia being the natural forum, the judge, in my view, rightly divided the question of fair trial from the...