“[10.] In this matter, one would think that when the funds, which by the way, are not a small amount by any standards, were being sent to the [Mussa] Defendants, if such was the case, through [D1], there must have been documentation which was executed between [D1] and the Claimant evidencing the deposit of the funds to [D1]. Copies of such documents as well as copies of the instructions issued to [D1] should be available to both the Claimant and [D1]. Assuming the funds were transferred from the UK, as seems to be the suggestion when one reads the sworn statement filed earlier by the Claimant…. And copies of the purported loan agreements executed between the parties….., there must be approvals which were granted by the fiscal authorities in both the UK and Malawi as such transmission of such a large sum has to be through such authorities. There certainly should be exchange control approvals that must have been granted. So in my opinion, even if the intended 5th Defendant were to deny ever having received funds from the Claimant for his onward transmission to the [Mussa Defendants], the Claimant does not have to bring him as a party to prove that point. The Claimant can prove that point by bringing documentary evidence which was exchanged between him and the intended 5th Defendant and also documentation relating to exchange control formalities issued by the relevant fiscal authorities either Malawi or the UK or in both jurisdictions. I therefore find that it is unnecessary to bring in [D1] a party for purposes of proving the transmission of the funds to the [Mussa Defendants]. [11.] Further, ….. [it] is absolutely unnecessary to add [D1] as a party merely to facilitate his giving of an account of the funds which he purportedly received from the Claimant. There is nothing to suggest that he is not a compellable witness. He can be called to come and testify. He can also be compelled to produce certain documents which are in his possession….”
“By commencing another action against [D1] and his affiliates in the United Kingdom over the same subject matter as the present action, the Claimant is abusing the process of court.”
“… the Claimant is clearly stating that [D1] never played his role of making money available to the [Mussa Defendants]. Simply put, the [Claimant] is making the assertion that the [Mussa Defendants] never got the money because [D1] denied receiving money from him. The question then is why is the [Claimant] suing the [Mussa Defendants]? On this note I must agree with the observations of Justice Msungama (in his ruling of10th September 2021 ) that the [Claimant] is being uncertain and inconsistent by making an additional or alternative claim against [D1]…….. It is to be accepted that a litigant has to be given his day in court. That is a matter of his right. However, it is also the duty of the court to guard against its abuse and not to entertain frivolous and vexatious claim or actions. Uncertainty in terms of who to sue is a clear indication of a frivolous and vexatious action. I would thus opine that asking for security for costs when it comes to such actions, cannot be considered to be stifling the action. This is especially in the context of this matter which has now been going on for almost three years without any real headway. Further as noted by [Justice Msungama], for a transaction of the magnitude that the claimant is asserting, there seems to be no proof (in terms of fiscal documents) that the alleged funds were transferred from the UK to Malawi. From the foregoing and having considered the court record as it now stands, and further considering that the claimant is resident outside the jurisdiction, I must find that the application for security for costs is well grounded and I do proceed to grant the same. Clearly the [Claimant] is not in a position to pay the costs should [he] be called upon to do. After all it has not been disputed that he is impecunious! It also stands to doubt as to whether it is the actions of the [Mussa Defendants] that caused the [Claimant’s] impecuniosity since by the [Claimant’s] sworn statement, the person who was supposed to have transferred the alleged sums to the [Mussa Defendants], is denying that he received the alleged money!”
“[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.”
“The overriding objective (1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders. ………..”
“[1.] THE CLAIMANT STATES THAT: a. The Defendant is an owner/shareholder/director or manager of a certain forex bureau styled Victoria Forex Bureau. He is therefore in the local and international forex transmittance business. b. In the year 2015 or thereabouts, the Claimant deposited various sums of money with the Defendant in the knowledge that the Claimant would need the money in Malawi for purposes of lending out same to Mahomed, Moshin Mussa, Phazi Industries Ltd and Mussa Nurmahomed (the Debtors). c. The Defendant agreed to receive instructions from the Claimant and to release the said monies to the Debtors as and when instructed to do so pursuant to the loan agreements between the Claimant and the Debtors under the Claimant and Debtors’ business arrangement, of which the Defendant was aware of. d. On diverse states, the Claimant instructed the Defendant to release and deliver the loan sums to the Debtors and the Debtors stated then that they received the money through the Defendant who owns/runs or manages Victoria Forex Bureau and whose staff and agents at the said bureau collected and delivered the money to the Debtors upon the instructions of the Claimant to the Defendant. e. When the debts fell due for repayment, the Debtors failed to settle the debts when the Claimant demanded payment through court action, the Debtors have stated that they never received the money from the Defendant or at all. f. When asked to provide an account of how and when he paid the monies to the Debtors, the Defendant refused to provide such an account and also refused to come to court to testify to that effect, leading the Claimant to believe that the Defendant may have failed to pay the money to the Debtors. g. On account of the failure by the Defendant to pay the loan sums to the Debtors as and when instructed by the Claimant, the Claimant has suffered loss and damage. Particulars of Loss and Damage i. Loss of use of the money ii. Loss of the business earnings of 4% per month ($15,000 per month). h. On account of the failure by the Defendant, the Claimant was forced to commence court proceedings against the Debtors and has therefore suffered special damage and loss. Particulars of Special Damage i. Loss of use of the money which would have been earned on a monthly basis; ii. Cost of various trips to Malawi to demand repayment of the debt; iii. Costs of Legal Proceedings (solicitor and own client and party and party costs) against the Debtors; iv. In making the demands for payment of the debts, the Claimant was put under constant threats on his life by the Debtors and therefore suffered anxiety.”
“[1.] The Claimant is a UK resident who previously resided in Malawi, whereupon he ran several businesses. In July 2005 the Claimant moved from Malawi to the UK and sold his said businesses. However, because of certain currency restrictions in Malawi at the time the Claimant could not transfer all his monies to the UK. Instead, the Claimant instructed the First Defendant and the First Defendant’s company, the Second Defendant, to manage his funds on his behalf. This included payments from various parties to whom the Claimant had made loans to and likewise making loan payments out to various parties under the Claimant’s instructions. ……. [7.] It is the Claimant’s case that the First and Second Defendants have essentially acted as his agents and bankers in Malawi by receiving payments from the Claimant and from various loanees to whom the Claimant had made loans to and by making various payments out under the Claimant’s Instructions. [8.] From August 2015 to February 2019 the Claimant entered into several loan agreements with a Mr Mahomed Mussa and Mr Moshin Mussa and their companies Mussa Nurmahomed and Phazi Industries Limited (“the loanees”) for sums totalling£750,000 and$750,000 USD plus interest. ……. [10.] In addition to the First and Second Defendant retaining monies from the Claimant when he left Malawi from 2015 to 2018 the Claimant made various payments to the First and Second Defendant directly or via the Third to Fifth Defendants in the UK in order for the First and Second Defendant to make payment to the loanees. During the currency of this period the First Defendant has produced various statements of accounts confirming that the loan payments had been made to the loanees or their nominees. [11.] Unfortunately, the loanees have reneged on their loan obligations by failing to make any loan repayments to the Claimant. As a result of which the Claimant issued civil proceedings in Malawi against the loanees ….. for repayment of the loans and interest ……. [12.] The loanees’ defence in the Malawi proceedings was that in fact no payments had been made by the First and/or Second Defendant to them. …… [14.] Accordingly, it is contended that the Claimant has been subjected to a significant fraud in the UK whereby the First and Second Defendant have made dishonest representations to the Claimant that his Instructions were being followed and that his monies were being properly paid to the loanees. It now transpires that none of the Claimant’s monies were paid to the loanees and indeed the First Defendant is now completely denying any actual knowledge of the loanees. [15.] In the premises the Claimant claims damages from the First and/or Second Defendant in the sum of£1,815,702 ….. plus£76,300 …. From the Third to Fifth Defendants, which has been paid to them in the UK and which they have never account[ed] for.”
“service in” cases) and D3 (a defendant in respect of whom permission to serve abroad has been obtained: “service out” cases). In both types of case, the question for the Court is “to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”: Spiliada at p480G. 28. With respect to “service in” cases, the burden of proof rests on the defendant to show that England is not the natural or appropriate forum and that there is another available forum which is clearly and distinctly more appropriate: Stage 1. If so, then the burden shifts to the claimant to show that there are special circumstances such that justice requires the trial to take place in England: Stage 2. [29.] With respect to “service out” cases, the burden of proof is on the claimant at Stage 1 to show that England is the appropriate forum for the trial of the action, and that it is “the proper place in which to bring the claim” (CPR rule 6.37 (3)). According to Lord Goff in Spiliada at p481D the claimant must show that this is “clearly so”
“Those include matters of practical convenience such as accessibility to courts for parties and witnesses and the availability of a common language so as to minimise the expense and potential for distortion involved in translation of evidence. Although they are important, they are not necessarily conclusive. Connecting factors also include matters such as the system of law which will be applied to decide the issues, the place where the wrongful act or omission occurred and the place where the harm occurred.” [36.] The place of commission of a tort is a relevant starting point when considering the appropriate forum for a tort claim. Viewed by itself, and in isolation, “the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction. . . . The significance attaching to the place of commission may be dwarfed by other countervailing factors”: see VTB at §51, per Lord Mance (in a case concerning an international commercial transaction). [37.] Where defendants domiciled in England (commonly known as “anchor defendants”) have agreed to submit to a foreign jurisdiction, but the claimant has made a deliberate choice to sue in this forum and has thereby engendered the risk of irreconcilable judgments, it “would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England”: see Lord Briggs in Vedanta at §87. [38.] Where (as in the instant case) foreign law applies, it has been said that “if the competing fora have domestic laws which are substantially similar, the governing law will be a factor of little significance”: Navigators Insurance Company and Ors v Atlantic Methanol Production Company LLC[2003] EWHC 1706 (Comm) at §48 (citing Dicey, Morris & Collins, The Conflict of Laws (13th Edition) (now 16th Edition at §12-033)). [39.] In VTB, Lord Mance explained at §46 that: ‘The governing law, which is here English, is in general terms a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum.’ [40.] At Stage 2, having concluded that a foreign jurisdiction is the proper place in which the case will be tried, the Court will look to see if there are “circumstances by reason of which justice requires that a stay should nevertheless not be granted”, and “all the circumstances of the case” will be considered: per Lord Goff in Spiliada at p478D-E. One relevant factor may be if “there is a real risk that substantial justice will not be obtainable in that foreign jurisdiction”: per Lord Briggs JSC in Vedanta at §88. That will require “cogent evidence”, but “Cogent evidence does not mean unchallenged evidence”: per Lord Briggs in Vedanta at §96. [41.] In assessing whether there is a “real risk” that substantial justice will not be obtainable, the Court is not conducting a trial and, although there must be evidence that the risk exists, the Court does not need to be satisfied on the balance of probabilities that facts have been established or that the risks will eventuate: see Cherney v Deripaska [2009] 2 CLC 408, per Waller LJ at §29. [42.] “Substantial justice” will not be available if there is a real risk that the claimants will be denied access to justice in the foreign jurisdiction. This may be because of the lack of independence or competence of the relevant judiciary or, in the context of large group claims, the lack of a fair civil procedure suitable for handling large group claims. It may also be because of the practicable impossibility of funding such group claims, or the absence of “sufficiently substantial and suitably experienced legal teams to enable litigation of this size and complexity to be prosecuted effectively, in particular against a defendant . . . with a track record which suggested that it would prove an obdurate opponent”: per Lord Briggs JSC, describing at §89 the analysis of Coulson J at first instance in Vedanta (see[2016] EWHC 975 (TCC) ). [43.] Caution should be applied when considering whether “substantial justice” can be obtained in the foreign jurisdiction for a number of reasons. First, it has been observed that there have been “judicial warnings of undoubted authority that the English court should not in this context conclude, other than in exceptional cases, that the absence of a means of funding litigation in the foreign jurisdiction, where such means are available in England, will lead to a real risk of the non-availability of substantial justice”: see Lord Briggs JSC in Vedanta at §93 referring to Connelly v RTZ Corpn plc (No 2)[1998] AC 854 (“Connelly”), 873 per Lord Goff, and Lubbe and Others v Cape Plc[2000] 1 WLR 1545 (“Lubbe”), 1555 per Lord Bingham. [44.] Second, as Lord Goff noted in Connelly at p874D, “seeking to take advantage of financial assistance available here to obtain a Rolls Royce presentation of his case, as opposed to a more rudimentary presentation in the appropriate forum” would not be sufficient to justify such a refusal. [45.] Third, and more generally, Lord Briggs warned in Vedanta at §11 that the “conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity. Such a finding requires cogent evidence, which may properly be subjected to anxious scrutiny”.”
“[26.] The Claimant either made payments directly to the First and/or Second Defendant to their Client’s UK bank accounts from his Client’s UK bank account. [27.] In addition to which the Claimant also paid cash, on instruction from the First Defendant, to the First and/or Second Defendant’s agents in the UK, the Third to Fifth Defendants…”
“[29] …. [the Mussa Defendants] contend that the Claimant did not release any funds in line with the agreements which the parties may have entered into. The [Mussa Defendants] continue to argue that even if it were true that any funds were paid to them, then the agreements which facilitated that payment were void on [the] ground of illegality in that there was no Ministerial authority to repatriate funds from England to Malawi, contrary to the exchange control laws. It is the humble view of this court that the factual differences cannot be resolved through a summary process like summary judgment. Only a full trial would do justice to such issues. I would hold further that the issue of illegality that has been raised in the defence is also a legitimate triable issue that can only be adequately dealt with through trial. The consequence of this is that I have to dismiss the application for summary judgment.”
“[46.] The governing law, which is here English, is in general terms a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum. Neither of these considerations here applies.”