"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 timeconsuming 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, un-controversially. 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."
“…not to support, encourage, incite or assist [Mr Tugushev] (or any of his Connected Persons) to assert, institute or continue any claim or action of any kind whatsoever against [Mr Orlov]…in or by way of legal proceedings (whether civil or criminal or their equivalent) or otherwise… save that [Mr Roth] shall not be in breach… where he takes any action required: (1) by Applicable Law or the terms of any order, decision or judgment of any Authority or court of competent jurisdiction with which, in each case, [Mr Roth] is bound to comply or (2) in proceedings in any court, arbitration or any other proceedings in which [Mr Roth] is involved, including (without limitation) as (co-)defendant, to the extent necessary only to defend his legitimate interests and rights…”
“Article 4 1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality be sued in the Courts of that Member State. 2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State.” “Article 6 1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State. …” “Article 62 1. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law. …”
“(1) This rule applies where – (a) rule 6.5(1) (personal service); (b) rule 6.7 (service of claim form on solicitor or European Lawyer); and (c) rule 6.8 (defendant gives address at which the defendant may be served), do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table. (For service out of the jurisdiction see rules 6.40 to 6.47.) Nature of defendant to be served Place of service 1. Individual Usual or last known residence. …”
“In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 ofPractice Direction 6B apply.”
“(1) An application for permission under rule 6.36 must set out – (a) which ground in paragraph 3.1 ofPractice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; and (c) the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found. (2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) ofPractice Direction 6B , the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.…”
“(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
“(9) A claim is made in tort where – (a) damage was sustained, or will be sustained, within the jurisdiction; or (b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”
“…What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway [“limb 1”]; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so [“limb 2”]; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it [“limb 3”].”
“32(1) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either – (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; The period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. …”
“…This did not cause me any alarm. The process to register Alisa (as my nominee) as a one-third shareholder in CJSC Norebo Holding (and other holding companies) had already been initiated. The charts were therefore in line with Ms Savina’s email of11 February 2011 and with our discussions at the time. I had no cause for concern, and I was reassured by Mr Orlov that everything was going according to plan.”
“Were it otherwise, the effect of section 32(1)(b) in affording a claimant a full six-year period of limitation would indeed be absurd, in that it would be open to a claimant who was initially aware of all the facts relevant to his cause of action but who was subsequently persuaded that his recollection of one of those facts was faulty, to establish that, either on that occasion or at some time thereafter before the date on which he “rediscovered” the truth (or could reasonably have done so), that fact was concealed from him, with the consequence that he would have a full period of six years from that date in which to bring his action. In my judgment, section 32(1)(b) cannot have been intended to produce such an absurd result.”
“An analysis of section 32(1)(b) requires the court to establish first what facts are relevant to the plaintiff’s cause of action and then to establish that any one of them has been deliberately concealed from the plaintiff by the defendant.”
“Article 200. Start of the Running of the Time Period of Limitation of Actions 1. Unless otherwise established by a statute, the running of the period of limitation of actions shall begin from the day when a person knew or should have known of the violation of his right and of the person that was the proper defendant for a suit for the protection of this right. …”
“The limitation period shall not start to run from the moment when the actions, which subsequently led to a violation of the rights of the potential claimant, were committed, but shall start to run from the moment when such a violation occurred”
“Russian courts divide the moment of committing actions that subsequently resulted in a violation of the right, and the moment of the violation itself (i.e. appearance of adverse consequences for a potential claimant).” 105.Professor Maggs in reply states that: “Mr Vaneev confuses the point at which the violation occurs with the possibility of delay in the wronged party becoming aware of that fact. In the present case, Mr Tugushev, while a shareholder in AA, had the right to be listed in the records of shareholders of AA, and also the various rights that he had as a shareholder in AA under the relevant company legislation and the Charter of AA. The right to be listed was violated and the other rights were lost the moment his shares were no longer listed in the relevant shareholder records. If this was done without his permission, then his rights were violated the moment the shares were no longer listed in his name”
“[a]ll three cases involve situations in which plaintiff’s right arose at a date later than defendant’s wrongdoing.”
“the limitation period shall not start to run from the moment when the actions, which subsequently led to a violation of the rights of the potential claimant, were committed, but shall start to run from the moment when such a violation occurred.”
“The moments of receipt by the claimant (applicant) of information about certain actions of the defendant and about the violation of his rights by these actions may not coincide. With such a discrepancy, the limitation of actions shall be calculated from the day when the claimant (applicant) is aware of the negative consequences for him caused by the behaviour of the offender.”
“(2) An individual is domiciled in the United Kingdom if and only if— (a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.”
“My Lords, the word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.”… In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure… Similarly a person who has his home abroad and visits the United Kingdom from time to time for temporary purposes without setting up an establishment in this country is not considered to be resident here…But a man may reside in more than one place. Just as a man may have two homes – one in London and the other in the country – so he may have a home abroad and a home in the United Kingdom, and in that case he is held to reside in both places and to be chargeable with tax in this country.”
“[10]… On the basis of Levene it seems to me that a person is resident for the purposes of section 41(3) in a particular part of the United Kingdom if that part is for him a settled or usual place of abode. [11] A settled or usual place of abode of course connotes some degree of permanence or continuity. In his judgment Potter J said that section 41(6) suggested that the threshold for residence under the 1982 Act was low. With respect, I do not find any such suggestion in this sub-section. It is true that the sub-section provides a rebuttable presumption of “substantial connection” if the residence has lasted for the last three months or more, but it provides no guidance on the question whether or not the person has become resident. Depending on the circumstances of the particular case time may or may not play an important part in determining residence. For example, a person who comes to this country to retire and who buys a house for that purpose and moves into it, selling all his foreign possessions and cutting all his foreign ties, would to my mind be likely to be held to have become immediately resident here. In other cases it may be necessary to look at how long the person concerned has been here and to balance that factor with his connections abroad. Since the answer to the question depends on the circumstances of each case, I did not find the other authorities cited to us of any real assistance.”
“27. Whether a defendant’s use of a property characterises it as his or her “residence”, that is to say the defendant can fairly be described as residing there, is a question of fact and degree…. In the present case, the Edgware house is owned by the defendant and his wife, and is the place where his wife, children, mother, father and sister permanently live. It is the place which the defendant has affirmed in court proceedings is not only his “residence” but his “home”
“44……..(1) It is possible for a defendant to reside in more than one jurisdiction at the same time. (2) It is possible for England to be a jurisdiction in which a defendant resides even if it is not his principal place of residence (ie even if he spends most of the year in another jurisdiction). (3) A person will be resident in England if England is for him a settled or usual place of abode. A settled or usual place of abode connotes some degree of permanence or continuity. (4) Residence is not to be judged according to a “numbers game” and it is appropriate to address the quality and nature of a defendant’s visits to the jurisdiction. (5) Whether a defendant's use of a property characterises it as his or her “residence”, that is to say the defendant can fairly be described as residing there, is a question of fact and degree. (6) In deciding whether a defendant is resident here, regard should be had to any settled pattern of the defendant’s life in terms of his presence in England and the reasons for the same. (7) If a defendant visits a property in England on a regular basis for not inconsiderable periods of time, where his wife and children live, in order to see his wife and children (including where the centre of the defendant's relationship with his children is England), such property has the potential to be regarded as the family home or his home when in England, which itself is evidence which may go towards supporting the conclusion that England is for him a settled or usual place of abode, and that he is resident in England, albeit that ultimately it is a question of fact and degree whether he is resident here or not, having regard to all the facts of the case including any discernible settled pattern of the defendant’s life or as it has also been put according to the way in which a man's life is usually ordered.”
“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.”
“And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the “propositus” intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. The legal advantage of adopting the natural and ordinary meaning, as accepted by the House of Lords in 1928 and recognised by Lord Denning M.R. in this case, is that it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. Templeman L.J. emphasised in the Court of Appeal the need for a simple test for local education authorities to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.”
“My Lords, the basic error of law in the judgments below was the failure by all the judges, save Lord Denning M.R., to appreciate the authoritative guidance by this House in Levene v. Inland Revenue Commissioners [1928] A.C. 217 and Inland Revenue Commissioners v. Lysaght [1928] A.C. 234 as to the natural and ordinary meaning of the words “ordinarily resident.”
“…has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences?”
“Vitaly and I are very close and I am very glad to have the ability to travel with him when I can: whether he is travelling within Russia, to the United Kingdom or to any country to which I am able to obtain a visa with my Russian passport. Since I was granted the right to travel freely to the UK, I now only need to visit the UK once every two years to maintain that right.”
“If you leave the United Kingdom, you will normally be readmitted for settlement as a returning resident provided that: • you did not receive assistance from public funds towards the cost of leaving this country; • you had indefinite leave to enter or remain here when you last left; • you have not been away for longer than 2 years; and • you are returning for the purpose of settlement. In order to be considered as settled here you will have to beable to show that you are habitually and normally resident inthis country, and that any absences have been of a temporary oroccasional nature. You will not be re-admitted as a returning resident if you areresident overseas and only return here for short periods.”
“In the above circumstances, and whilst it is clear that Mr Povarenkin was resident and tax domiciled in Russia at all material times, the authorities recognise it is possible for a defendant to reside in more than one jurisdiction at the same time, and England may be a jurisdiction in which Mr Povarenkin resides even if it is not his principal place of residence. This is just such a case.”
“[t]he registered address is a formality which may bear very little relationship to a person’s real residence”
“76. There might be four possible theories of liability under Russian law that could arise under the language of paragraph 44 [of the Particulars of Claim]: (1) breach of contract, (2) tort under Article 1064 of the Civil Code, (3) unjust enrichment under Articles 1102ff of the Civil Code or (4) recovery of property from another’s wrongful possession under Article 301 of the Civil Code. 77. Generally in Russian law under the rule against competition of claims (which is a sub-rule of the rule that the particular governs the general) if a party to a valid contract has a claim for breach of contract, then the claim must be brought under the contract and may not be brought under other theories that might apply. Accordingly, in Russian law, any claim in contract against Mr Orlov and/or Mr Roth would eliminate all other causes of action against those two defendants with respect to acts constituting a breach of contract.”
“(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means. (2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case.”
“As the rule now stands it is plain that jurisdiction may be assumed only where (a) the claim is founded on a tort and either (b) the damage was sustained within the jurisdiction or (c) the damage resulted from an act committed within the jurisdiction. … Condition (c) prompts the inquiry: what if damage has resulted from acts committed partly within and partly without the jurisdiction? This will often be the case where a series of acts, regarded by English law as tortious, are committed in an international context. It would not, we think, make sense to require all the acts to have been committed within the jurisdiction, because again there might be no single jurisdiction where that would be so. But it would certainly contravene the spirit, and also we think the letter, of the rule if jurisdiction were assumed on the strength of some relatively minor or insignificant act having been committed here, perhaps fortuitously. In our view condition (c) requires the court to look at the tort alleged in a common sense way and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction (whether or not other substantial and efficacious acts have been committed elsewhere): if the answer is yes, leave may (but of course need not) be given. But the defendants are, we think, right to insist that the acts to be considered must be those of the putative defendant, because the question at issue is whether the links between him and the English forum are such as to justify his being brought here to answer the plaintiffs' claim.”
“Conspiracy is both a crime, now of limited ambit, and a tort. The essence of the crime is the agreement or understanding that the parties will act unlawfully, whether or not it is implemented. The overt acts done pursuant to it are relevant, if at all, only as evidence of the agreement or understanding. It is sometimes suggested that the position in tort is different. Lord Diplock, for example, thought that “the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement”: Lonrho Ltd v Shell Petroleum Co Ltd (No 2)[1982] AC 173 , 188. This is true in the obvious sense that a tortious conspiracy, like most other tortious acts, must have caused loss to the claimant, or the cause of action will be incomplete. It follows that a conspiracy must necessarily have been acted on. But there is no more to it than that. The critical point is that the tort of conspiracy is not simply a particular form of joint tortfeasance. In the first place, once it is established that a conspiracy has caused loss, it is actionable as a distinct tort. Secondly, it is clear that it is not a form of secondary liability, but a primary liability. This point had been made by Lord Wright in Crofter Hand Woven Harris Tweed Co Ltd v Veitch[1942] AC 435 , 462: “the plaintiff’s right is that he should not be damnified by a conspiracy to injure him, and it is in the fact of the conspiracy that the unlawfulness resides.”
“Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement.”
“We consider that the Court of Appeal correctly identified the place where the conspiratorial agreement was made as the place of the event which gives rise to and is at the origin of the damage. As Sales LJ explained[2017] QB 853 , para 76, in entering into the agreement Mr Khrapunov would have encouraged and procured the commission of unlawful acts by agreeing to help Mr Ablyazov to carry the scheme into effect. Thereafter, Mr Khrapunov’s alleged dealing with assets the subject of the freezing and receivership orders would have been undertaken pursuant to and in implementation of that agreement, whether or not he was acting on instructions from Mr Ablyazov. The making of the agreement in England should, in our view, be regarded as the harmful event which set the tort in motion.”
“50. Indeed, I see no reason to think that those who framed the RSC and CPR intended them precisely to mirror the interpretation later given to the Brussels Convention. The language used in the Rules, although no doubt intended to widen the gateway so as to encompass the cases covered by the Brussels Convention, is quite different from the language of the Convention. The Dumez and Marinari decisions came afterwards, to restrict the scope of the language used in the Convention, but they do not override the language of the Rules in non-EU cases. They are of no help in construing Rules which have remained in essentially the same language ever since. If the Rules Committee had wanted to assimilate the Rules after the decisions in Booth and Cooley, they could easily have done so, and now more easily, as the gateways are contained in a Practice Direction rather than a Rule. 51. It is also necessary to bear in mind the difference between the two schemes. The European scheme deliberately eschews any discretion in favour of clear and certain rules, in the context of a scheme which governs, not only jurisdiction, but also recognition and enforcement of the resulting judgments. No doubt that is why the Court of Justice was anxious to restrict the scope of the Bier decision by drawing the direct/indirect distinction. That is not a feature of the English scheme, which retains the “valuable safety valve” of discretion, a discretion which need not be limited to the Spiliada principles, but can concentrate on the real question, which is “the proper place for the resolution of the dispute” (as Professor Briggs puts it).”
“60. It has therefore been necessary for our procedural rules in respect of service of claims outside England (and, which will go without saying, also Wales) to be wide enough to permit service in circumstances in which the recast Regulation and its predecessors have allocated jurisdiction to English courts to determine a claim against a person domiciled elsewhere in the EU. In 1978 the Court of Justice in Luxembourg determined the Bier case, cited and explained in para 29 above, which disclosed a rare situation in which an allegedly unlawful physical act in one member state caused direct physical damage only in a second member state. The court’s construction of the location of the “harmful event” in what was then article 5(3) of the 1968 Convention, namely that it had occurred in the second state as well as the first and that it was for the claimant to choose in which of them to bring his claim, therefore required an amendment, which came into force in 1987, to what was then RSC Ord 11, r 1(1)(f). The rule then began to provide for service out of the jurisdiction if, among other things, “the damage was sustained... within”
“- I have discussed AT’s position I [sic] relation to dividend with [Mr Orlov] and [Mr Roth] and they do not consider the arrangement as an obligation to pay dividends but only a mechanism for distribution of dividends. - With respect to shares VO does not recognise that AM [sic] has a legal right to any of his shares but that he will stand by his previous commitments to compensate AT adequately. A formal transfer of shares can therefore not take place.”
“(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.” (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
“38. Thus a claimant has to demonstrate that both threshold requirements are met. At the first stage under paragraph 3.1(3)(a), the court has to examine the nature of the claim which arises against the anchor defendants in isolation; that is to say on the assumption that there will be no additional joinder of the foreign defendants. The court has to be satisfied that not only is there ‘a real issue’ between the claimant and the anchor defendants, but also that it is an issue ‘which it is reasonable for the court to try’. These requirements are underlined byCPR 6.37 (2) which provides that the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. Only at the second stage does the court go on to consider whether the foreign party is ‘a necessary or proper party to that claim’.” 245.The Court of Appeal went on at [48] to say: “48. In our judgment the issue for determination under paragraph 3.1(3)(a) in the present case, as we have identified in the first sentence of the previous paragraph, is a much more finely nuanced, soft-edged, question than the stark questions which the judge seems to have posed and decided. We emphasise in this context the use of the word ‘try’. Thequestion is directed not at whether it is reasonable or properfrom the perspective of the particular claimant to issue or bringproceedings, but rather whether it is reasonable for the Englishcourt to ‘try the issue’, whether in summary judgmentproceedings or otherwise. Indeed the wording of paragraph 3.1(3)(a) departs from the more subjective formulation of the principle articulated by Morton J in Ellinger v Guinness, Mahon & Co[1939] 4 All ER 16 , 22 and referred to by Lord Collins in paragraph 65 of AK Investment – namely ‘a real issue between the plaintiff and that party which the plaintiff may reasonably ask the court to try’.”
“76. First, the mere fact that D1 is sued only for the purpose of bringing in D2 is not fatal to the application for permission to serve D2 out of the jurisdiction: The Brabo[1949] AC 326 , 338–339, per Lord Porter; Derby & Co Ltd v Larsson[1976] 1 WLR 202 , 203, per Viscount Dilhorne.” … WLR 202 , 203, per Viscount Dilhorne.”
“43. It was obvious from the evidence that the commercial (and indeed only) driver behind the Bank’s issue of proceedings in England against D1 and D2 was to enable a claim to be brought against D3 and D5 and to attempt to execute against their assets, whether in Russia or elsewhere. However we do not consider that in the present case it is necessary or appropriate for this court to revisit the question whether the fact that a claimant’s motive in bringing proceedings against the anchor defendants was only for the purposes of enabling a claim to be brought against the foreign defendants is a factor which is relevant to the question whether the threshold criteria under paragraph 3.1(3) ofPD6B have been satisfied. To do so would involve reconsideration of this court’s decision in Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd[1983] Ch 258 and the various authorities there cited. That would be a task for the Supreme Court. Accordingly, even if we have reservations on this point, we must accept for the purposes of this case the Board’s conclusion, as expressed in paragraph 79 in AK Investment, that the fact that the anchor defendant is sued only for the purpose of bringing in the foreign defendants is not an element in deciding the question whether the gateway requirements of paragraph 3.1(3)(a) or (b) have been satisfied. That factor is only for consideration under the wider discretionary head of Issue 4.”
“99. As to the second limb of sub-paragraph 3(a), the judgment in Erste Group Bank makes it clear at [78] [vii] that it may not be reasonable for the English Court to try a claim even if it plainly has jurisdiction over that claim (in that case, because of an exclusive jurisdiction clause in the contracts; in the present case, because Sixt is deemed to have accepted that it does). The court will have to consider, among other matters, if there is any utility in its trying the claims against the anchor defendant. If the claimant has nothing to gain from a trial of those issues here, even a trial to the stage of obtaining summary judgment (other than using the claim against the anchor defendant as a vehicle for bringing in the target defendant) the second limb will not be satisfied. That was the basis on which, on the facts, the claimant in Erste Group Bank failed on this limb of the gateway. 100. In the present case, as in Erste Group Bank, there would be no particular advantage for the claimants to be gained from this court trying any legal issues arising as between the claimants and Sixt that may still require determination, especially as those issues would all have to be resolved by reference to Costa Rican law. There is no evidence, for example, that Sixt has any assets outside Costa Rica against which an English judgment could be executed. In any event Sixt is undoubtedly solvent and is likely to be able to pay any damages awarded against it.”
“171. As to satisfaction of the gateway for service out of the jurisdiction, it is well- established in the context of forum conveniens cases that a claim may properly be brought against anchor defendants even if the sole motive for doing so is to establish jurisdiction against foreign defendants: see Altimo Holdings and Investments Ltd v Kyrgyz Mobile Tel Ltd[2011] UKPC 7 ;[2012] 1WLR 1804 at [76] to [79]. The motive for bringing the proceedings is merely a factor in the exercise of discretion. However, as things stand, it cannot be said that there is between the Bank and the English Defendants a real issue that it is reasonable for the court to try. Given the motive for bringing the claim against them, it is doubtful whether the claim will ever proceed in the absence of a claim against the First and Second Defendants. Moreover, the claim against the English Defendants is stayed. If the appropriateness of that stay is ever revisited, the claim against the BVI Defendants could be reviewed at the same time. … 174. In my judgment, it therefore cannot be said that England is forum conveniens for a claim against the BVI Defendants at this time. The theoretical possibility of a claim against insubstantial defendants being pursued in England should not be allowed to distort the analysis: see Microsoft Mobile Oy v Sony Europe [2018] 1All ER (Comm) 419 at [197] – [198]. On the facts of this case, given the motive for suing the English Defendants at all, the claim against them is a factor of very little weight.”
“(i) The burden is upon the claimant to persuade the court that England is clearly the appropriate forum for the trial of the action. (ii) The appropriate forum is that forum where the case may most suitably be tried for the interests of all the parties and the ends of justice. (iii) One must consider first what is the “natural forum”; namely that with which the action has the most real and substantial connection. Connecting factors will include not only factors concerning convenience and expense (such as the availability of witnesses), but also factors such as the law governing the relevant transaction and the places where the parties reside and respectively carry on business. (iv) In considering where the case can be tried most “suitably for the interests of all the parties and for the ends of justice” ordinary English procedural advantages such as a power to award interest, are normally irrelevant as are more generous English limitation periods where the claimant has failed to act prudently in respect of a shorter limitation period elsewhere. (v) If the court concludes at that stage that there is another forum which is apparently as suitable or more suitable than England, it will normally refuse permission to serve out, or, in the case of anti-suit injunctions on the basis of unconscionable conduct, the grant of the injunction unless there are circumstances by reason of which justice requires that permission should nevertheless be granted. In this inquiry the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the claimant will not obtain justice in the foreign jurisdiction. Other factors include the absence of legal aid or the ability to obtain contribution in the foreign jurisdiction. (vi) Where a party seeks to establish the existence of a matter that will assist him in persuading the court to exercise its discretion in his favour, the evidential burden in respect of that matter will rest upon the party asserting it.”
“…I am strongly inclined to the view that issues relating to the ownership of shares in a foreign company, and to the right of a shareholder in such a company to obtain relief against a director in the name of the company, should be determined by the Courts of the place of incorporation”
“I am therefore satisfied that India, rather than England, is clearly the natural and appropriate forum for the resolution of what is at heart a dispute about the ownership of, and investment in, an Indian company.”
“34. I am driven to conclude that great weight should be given to it. The Armco companies contend that they were the victims of a fraudulent conspiracy perpetrated by Donohue, Atkins, Rossi and Stinson. Determination of the truth or falsity of that allegation lies at the heart of the dispute concerning the transfer agreements and the sale and purchase agreement. It will of course be necessary for any court making that determination to consider any contemporary documentation and any undisputed evidence of what was said, done or known. But also, and crucially, it will be necessary for any such court to form a judgment on the honesty and motives of the four alleged conspirators. It would not seem conceivable, on the Armco case, that some of the four were guilty of the nefarious conduct alleged against them and others not. It seems to me plain that in a situation of this kind the interests of justice are best served by the submission of the whole dispute to a single tribunal which is best fitted to make a reliable, comprehensive judgment on all the matters in issue. A procedure which permitted the possibility of different conclusions by different tribunals, perhaps made on different evidence, would in my view run directly counter to the interests of justice.”; ii) Rix LJ in Konkola Copper Mines plc v Coromin [2006] 1 All ER (Comm) 437 (CA) stated at [27] that “…the attitude of the English courts is, if possible, to avoid fragmentation of disputes between different jurisdictions where such fragmentation raises the twin dangers of waste of resources and of inconsistent decisions.”; iii) In JSC BTA Bank v Granton Trade Limited[2010] EWHC 2577 (Comm) , Christopher Clarke J (at [18]) also considered that England was the appropriate forum despite “the size of the connection of the case with Kazakhstan”
“28. I do not accept that the second proposition can be taken as a rule. It fails to distinguish the case in which the anchor defendant is the chief protagonist from the case where he is a minor player. A decision that permission should be granted to serve the protagonist out of the jurisdiction because the minor player is domiciled within the jurisdiction would indeed allow the tail to wag the dog. But if the anchor defendant is the protagonist a decision to allow a minor player to be served outside the jurisdiction may be entirely appropriate. That would be, to continue the metaphor, to allow the dog to wag the tail. Just as it may make little sense to have the venue determined by where the claim against the most insignificant player will be heard, so it may make little sense to have the venue where the most significant will be sued passed over in favour of another jurisdiction to whose jurisdiction a lesser player is subject. I do not mean thereby to suggest that whether or not jurisdiction should be exercised against a foreign defendant is necessarily determined by whether the anchor defendant, or the defendant sought to be joined, fits into some particular descriptive category (“major/minor”; “principal/secondary”); only that a decision as to appropriate forum must necessarily take account of the relative importance in the case of different defendants and particularly those against whom proceedings in England are practically bound to continue.”; iv) In BAT Industries Plc v Windward Prospects Ltd[2013] EWHC 4087 Field J (at [81]) considered that “looking only at the connecting factors and ignoring for the moment the issue of bifurcation of proceedings, there is a clear preponderance in favour of New York over London”
“82. Does the prospect of BAT having to bring substantially identical actions in two jurisdictions, in London against Windward and in New York against API, with the risk of inconsistent decisions, decisively tip the scales in favour of London being the appropriate forum for the claim against API? In my judgement it does. The claims brought by BAT involve very heavy and very expensive litigation and the risk of inconsistent decisions is pregnant with disaster. As I have already found, BAT acted entirely properly and reasonably in starting proceedings against Windward as well as against API and in bringing both sets of proceedings in England. As the party with considerably greater assets to meet a judgement and as the ultimate paymaster with the right to control the litigation, Windward is the main protagonist and ought to be sued in England which is manifestly the appropriate forum and where effective execution measures are available. It is also not clear on the evidence that if a claim were made against Windward in New York, the court would assert jurisdiction over the claim. No doubt it would be more convenient for API to be sued in New York, but in my view the hardship for API in being sued in London is clearly and decisively out-weighed by the hardship to BAT in not being able to sue both defendants in London.”; v) In Lungowe v Vedanta Resources Plc[2016] EWHC 975 (TCC) Coulson J (as he then was) (at [152] and [198]) had determined that, notwithstanding that Zambia would otherwise “obviously” be the appropriate forum, taking into account the fact that the claim against the other defendant would nevertheless proceed before the English court, England was the most appropriate place to try the claims. On appeal Simon LJ held that “in my view the judge was entitled to the view that it was inappropriate for the litigation to be conducted in parallel proceedings involving identical or virtually identical facts, witnesses and documents, in circumstances where the claim against Vedanta would in any event continue in England; and that this made England the most appropriate place to try the claims against KCM.” (see[2017] EWCA Civ 1528 ;[2018] 1 WLR 3575 at [117]). vi) In Al Jaber v Al Ibrahim[2016] EWHC 1989 (Comm) , Burton J held (at [92]) that, despite other factors being in play “in addition there is a further factor which seems to me to be determinative. The trial will be continuing against the First Defendant in this jurisdiction in any event. If I granted a stay in favour of the Second Defendant, this would involve either (i) two trials, one in each jurisdiction or (ii) a trial only against the First Defendant, not the Second Defendant and/or (iii) the Second Defendant taking part in this court as a witness, in order to give evidence to support the First Defendant. By reference to any of these scenarios, justice in my judgment can only be done by having the claim brought by the Claimants against both Defendants in this forum, where the case against the First Defendant is to proceed.”
“111. …It follows, therefore, that neither the doctrine of forum non conveniens nor the application “reflexively” of articles of the Judgments Regulation provides grounds for staying the pursuit by Pacific in this jurisdiction of its claims against SMI. Does this mean that, given Pacific’s wish to pursue its claims against SMI in this jurisdiction, this court should allow Pacific to continue to pursue its claims against the other defendants in this jurisdiction notwithstanding that, as against those other defendants, application of the doctrine of forum non conveniens, unaffected in the case of those other defendants by the impact of the Judgments Regulation, indicates that Pacific’s claims against those others should be pursued in Ukraine? 112. I am not persuaded that it does. According to the particulars of claim in this action, SMI is, like the BVI defendants, a relatively minor player in the dispute: it was no more than the means whereby Mr. Surkis held and was able to take control of Dynamo. The principal dispute is undoubtedly between Pacific on the one hand and Mr. Surkis and Mr. Zgursky on the other. To allow the fact that the doctrine of forum non conveniens cannot be applied to SMI to dictate where the dispute as a whole must be tried would be, in my view, to allow the tail to wag the dog. In particular, I see no reason why, given my conclusions in relation to the application of the doctrine of forum non conveniens to the other defendants, I should not stay the action against Mr. Surkis and set aside the permission order, and with it service of the claim form on the BVI defendants, leaving it to Pacific to pursue its dispute with those persons (and SMI if it wishes) in the courts of Ukraine…” ii) In OJSC TNK-BP Holding v Beppler & Jacobson Ltd[2012] EWHC 3286 (Ch) , Mr Andrew Sutcliffe QC, sitting as a Deputy High Court Judge, said at [313]: “It is necessary to consider the possibility of parallel proceedings in England and Russia. Mr. Kitchener accepts that Owusu v. Jackson [2005] Q.B. 801 prevents this court from declining jurisdiction over the claim against BJUK on forum conveniens grounds. Accordingly, if the claim against this anchor defendant is viable it may continue even if permission to sue the Applicants is refused. The result might be the existence of parallel proceedings in Russia and England. However, as Mr. Kitchener points out, if this is of concern to Holding, the solution is in its own hands. It can join BJUK as a defendant to any Russian proceedings…This is a case where it is important to have regard to Lloyd L.J.’s observation in The Golden Mariner [1990] 2 Lloyd’s Rep. 215 at 222…The fact that Russia is the natural forum means that the claim against BJUK should not dictate the location of trial against the Applicants.”