Pike & Anor v The Indian Hotels Company Ltd [2013] EWHC 4096 (QB)

[2013] EWHC 4096 (QB)Case No HQ/11X/04388
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/12/2013
Before
MR JUSTICE STEWART
Between
(1) William Jack PikeClaimants(2) Kelly Josephine DoyleClaimantThe Indian Hotels Company LimitedDefendant
Mr Philip Havers QC & Mr Peter Skelton (instructed by Leigh Day) for ClaimantsMr Neil Block QC & Mr Bernard Doherty (instructed by DAC Beachcroft) for DefendantHearing Hearing dates: 2 December 2013 – 4 December 2013
JudgmentMr Justice Stewart:Introduction
[1]On 26 November 2008 the Taj Mahal Palace, Mumbai, India was the subject of a terrorist attack. On that night the Claimants were British guests at the hotel. They had just spent 15 days backpacking around Goa and, as a treat, the 2nd Claimant had booked a one night stay before they were due to fly home from Mumbai. Shortly after the attack began the Claimants returned to their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the First Claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The Second Claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.[2]The Defendants are the company which operate the hotel. They are an Indian company.[3]The application before the Court is the Defendants’ application dated 1st March 2013 seeking the following orders:(i) There be a declaration that the Court has no jurisdiction to try this claim.(ii) The Orders of Master Fontaine extending the period of validity of the claim form and giving permission to serve it outside the jurisdiction be set aside.(iii) The service of the claim form and/or the claim form be set aside.(iv) The claim be dismissed.(v) The Claimants do pay the Defendants’ costs of the application and the claim, such costs be subject to a detailed assessment if not agreed. Alternatively(vi) The claim be stayed.(vii) The Claimants do pay the Defendants’ costs of the claim to be subject to a detailed assessment if not agreed - because the Defendant contends that the English court has no jurisdiction to try this claim or should not exercise any jurisdiction which it has.

Procedural History

[4]26 January 2009: The Claimants enter into conditional fee agreements with their solicitors. 24 November 2011: Claim form issued. 17 January 2012: Letter of claim dated 18 November 2011 sent to the Defendants on 21 December 2011 as incomplete faxed copy, a complete copy being received by the Defendants by post on 17 January 2012. 24 January 2012: Defendants reply denying that the English Court has jurisdiction and in any event denying liability. 8 February 2012: Claimants’ solicitors write to the Defendants requesting a meeting to discuss the case “before proceedings are issued and served.” 22 March 2012: Date of the Particulars of Claim. 22 March 2012: Claimants purport to effect service at 45 – 51 Buckingham Gate, London, the offices of St James Court Hotel Limited, a company related to the Defendants through common ultimate ownership. (The claim form itself identified the correct address of the Defendants in Mumbai). 4 April 2012: The Defendants file an Acknowledgement of Service. 18 April 2012: The Defendants issue an application challenging the jurisdiction and alternatively contending that the court should not exercise any jurisdiction it has. A ground for challenging the jurisdiction is that service at the London address was not effective. 9 May 2012: Master Fontaine gives permission at a without notice hearing to serve the claim form on the Defendants out of the jurisdiction at the Mumbai address identified on the claim form. The claim is pleaded in Contract and Tort, but permission to serve out of the jurisdiction is sought only on the basis of the claim in Tort. Master Fontaine extends time for service of the claim form to 9 February 2013, the Claimants’ solicitors having filed evidence that service in India could take a considerable time. 31 August 2012: Decision of Master Fontaine refusing the Claimants applications for disclosure and information, aimed at establishing that the London address was a proper place which to serve the Defendants. Master Fontaine gives directions for a hearing to determine the question of whether service has been properly effected on the Defendants at the London address. 4 February 2013: Claimants agree not to rely on service at the London address. The Defendants agree that service can be effected at its solicitors’ London office on the basis that it would be treated for all purposes as if that were service at the Defendants’ offices in Mumbai pursuant to the permission granted by Master Fontaine on 9 May 2012, and that the Defendants’ right to challenge would be the same as if service had been effected in Mumbai. 1 March 2013: Defendants’ application the subject of this hearing.

The Issues for Determination

[5]There are three main issues for determination. These are:(i) Does the English Court have jurisdiction to hear the Claimants’ claim in accordance with CPR 6.36, 6.37 and Practice Direction 6B?(ii) Should the Order of Master Fontaine made on 9 May 2012 without notice to the Defendants and extending time for service of the claim form be set aside?(iii) Are the English Courts the forum conveniens for this claim?

The First Issue: Jurisdiction

[6]The relevant provisions of the Civil Procedural Rules provide: 6.36. “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 of Practice Direction 6B apply. 6.37. (1) An application for permission under rule 6.36 must set out – (a) which ground in paragraph 3.1 of Practice 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. …… (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.” (a) which ground in paragraph 3.1 of Practice 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. …… (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.” Practice Direction 6B provides:
“3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where – …. (9) A claim is made in tort where: (a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction.”
[7]In respect of the first issue there are two questions to be answered:(i) Can the Claimants satisfy the Court that in relation to the Defendants there is a serious issue to be tried on the merits?(ii) Can the Claimants satisfy the Court that there is a good arguable case that the Claimant falls within paragraph 3.1(9)(a) of Practice Direction 6B? A “good arguable case” means that one side has a much better argument than the other. (Ultimo) Holdings and Investment Limited v Kyrgyz Mobil Tel Limited [2011] UKPC 7 [2012] 1WLR 1804 at paragraph 71. The Defendants concede for the purposes of this hearing that the Claimants satisfy the first test, namely a serious issue is to be tried on the merits. Thus the only question for the court to determine is the second one.[8]The First Claimant suffers continuing pain and loss of amenity and substantial economic losses caused by his injuries. The Second Claimant sustained loss of earnings in England and Wales and has a continuing loss in the form of counselling. On that basis both Claimants have suffered indirect or secondary damage as a result of the Defendants alleged negligence in Mumbai. The Claimants’ submission is that this is sufficient to found jurisdiction. The Defendants challenge this.[9]The question as to whether indirect or secondary damage is sufficient to give jurisdiction to the English and Welsh courts is by no means tabula rasa so far as the present type of case is concerned. Indeed four High Court decisions have all answered in the affirmative. These cases are: Booth v Phillips [2004] EWHC 1437 (Comm) a decision of Nigel Teare QC (as he then was) Cooley v Ramsey [2008] EWHC 129 (QB) a decision of Tugendhat J Wink v Croatio Osiguranje D.D. [2013] EWHC 1118 (QB) a decision of Haddon-Cave J Stylianou v Toyoshima [2013] EWHC 2188 (QB) a decision of Sir Robert Nelson. Because the Defendants’ arguments have been already dealt with in some detail, I shall give my reasons for rejecting them as briefly as possible. The doctrine of precedent requires that I follow these decisions unless I am convinced that they are wrong. R v Manchester Coroner ex p Tal [1985] 1 Q.B. 67 @ 81A-B[10]The cases of Booth and Cooley considered the previous rule namely CPR 6.20(8)(a). The wording was the same. The question was whether “damage was sustained within the jurisdiction”. I hope I do no disrespect to Teare J’s decision in Booth by summarising the reasoning as follows:(i) There is no reference to the damage which completes the cause of action in the rule and it therefore should be given its ordinary and natural meaning, namely harm which has been sustained by the Claimant, whether physical or economic (paragraph 36).(ii) The second part of the rule which refers to “the damage sustained resulted from an act committed within the jurisdiction” uses the definite article which is not in the first part of the rule. This suggests that it is sufficient for the purposes of sub paragraph (a) that some damage (not all of the damage) is sustained within the jurisdiction (paragraph 36).(iii) To meet the objection that this gives rise to an improbably wide construction of the rule, the Court must be satisfied that it is appropriate to exercise that jurisdiction. This involves considering whether England is the forum in which the case could most suitably be tried for the interest of all the parties and for the ends of justice (paragraph 37).(iv) Whilst Commonwealth authorities cannot determine the issue which depends upon the wording of the CPR, decisions of the Appellate Courts in both Canada and Australia support that construction (paragraph 44).[11]The three subsequent High Court decisions have all dealt with more detailed submissions, including submissions based upon the genesis of the rule. Most recently in Stylianou, Robert Nelson was given the same privilege as I have been given, namely a careful and detailed exposition by Defence Counsel, in this case Mr Doherty.[12]The Defendants’ submission is as follows:(i) Before 1 January 1987 RSC order 11 rule 1(1)(h) required a plaintiff to establish that the action was “founded on a Tort committed within the jurisdiction”. The test was “where in substance did the cause of action arise?” (Distillers Co Ltd v Thompson [1971] AC 458 at 468H).(ii) On 1 January 1987 the rule changed such that the new RSC order 11 rule 1(1)(f) became “the claim is founded on a Tort and the damage was sustained, or resulted from an act committed, within the jurisdiction.” The change was made to give effect to Article 5(3) of the Brussels Convention and the decision of the European Court in Handelskwekerij G.J. Bier B.V. v Mines Potasse d’Alsace S.A. [1978] QB 708. Metal und Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc [1991] QB 391 at 437 ABCI v Banqe Franc-Tunisienne [2003] EWCA Civ 205 at paragraph 43.(iii) The European Rules do not allow indirect secondary damage to found jurisdiction. Dumez France v Hessische Landesbank (C-220/88) [1990] ECR 1-49 Marinari v Lloyds Bank plc (C-364/94) [1995] ECR 1 – 2719 [1996] QB 217 ABCI case at paragraphs43-44.(iv) This is all accepted and is in line with the original Bier case where the European Court held that where an act occurred in one Member State and the damage occurred in another, the Claimant could sue the Defendant in the Courts of either state. So, the Dutch Claimant could sue for damage caused to his seed beds in his nursery in the Netherlands as a result of the Defendant polluting the Rhine in France.(v) Given the above, the Court should apply normal principles of interpretation to the rule namely: delegated legislation is construed in the same way as an Act, the starting point is to ascertain the legislative intention and the person seeking to understand that intention must do so in the light of the enactment and its purpose. The interpretation must be an informed one (Bennion on Statutory Interpretation 5th Edition, 2008, pages 263, 469 and 585). See also the comments of Lindley MR in Re Mayfair Property Co [1898] 2 Ch 28 at 35 and Lord Simon in Black-Clawson International Ltd v Papierwerke Waldhof-Aschassenburg A.G [1975] A. C. 591 at 647.(vi) Therefore since the pre 1987 law would not have allowed indirect secondary damage to found jurisdiction and since the purpose of the change was to align the RSC (subsequently CPR) with the European rules which do not allow such a founding of jurisdiction, the rules should be interpreted consistently with the European cases.[13]Nevertheless, despite arguments very similar to or the same as Mr Doherty’s submissions in the present case, the judges in Cooley, Wink and Stylianou have refused to accept them. I shall therefore summarise their reasons, the Defendants attack in the present case upon their reasons, and my conclusions.[14]The High Court cases have determined that the ordinary natural meaning of “damage” includes physical and economic damage. (Booth paragraph 35, Cooley paragraph 32 – 34, 53) Wink (paragraphs 32 – 35). The Defendants submit that, given the legislative and European case law background, it is a perfectly proper and unforced interpretation of “damage” to restrict it to direct damage only. The Defendants submit that ascertaining the legislative intention requires that the meaning to which previous judges have been attracted, as a matter of first impression, must yield to the appropriate context.[15]Allied to this point is the reliance in Booth (paragraph 35) on the lack of a definite article before the word damage. The judge in Booth said “this suggests that it is sufficient for the purposes of sub paragraph (a) that some damage (not all the damage) is sustained within the jurisdiction.” The Defendants point out that the rule introduced in 1987 stated “the damage was sustained, or resulted from an act committed, within the jurisdiction”. They submit that the definite article was used in the Metall case to argue that damage could take place in a single country whereas direct damage may occur in more than one country. It was later dropped, they say, presumably in the light of the Metall decision. Thus, they submit that whether or not there is a definite article is not significant for the purposes of the present question.[16]Absent the European context on which the Defendants rely, it seems to me clear that the previous decisions are correct. As Haddon-Cave J said in Wink at paragraph 33 “there are no limiting words in sub paragraph (a) which would justify such a narrow meaning and exclude indirect damage. The word “damage” is not modified or trammelled in any way. The ordinary and natural meaning of the word “damage”…is any damage flowing from the Tort. In the words of Teare J at paragraph [37] in Booth, “damage” in this context means any “physical or economic” harm, ie. direct or indirect.” For the reasons I give below, the context upon which the Defendants rely does not alter that view. Whilst it may be said that the decision in Metall undRohstoff was not concerned with the question of whether indirect or secondary damage could found jurisdiction, I agree with Haddon-Cave J’s statement in Wink [38] that “the direction of travel of the Rules of Court was clearly to maintain a broad, rather than a narrow, construction of “damage” by discarding the definite article to make it clear, selon Metall vRohstoff that not all of the damage must have been sustained within the jurisdiction.”[17]The Defendants point to the fact that English courts have always been cautious in asserting jurisdiction over foreigners. See Metall undRohstoff (page 435, 437). If there is any doubt about the construction of the rule it must be resolved in favour of the foreigner. Tugendhat J in Cooley dealt with this at [47] – [49]. He concluded that the interpretation to be placed on the CPR rule is clear. I do not disagree with him.[18]As to the European approach which the Defendants commend to the court, their submission is that insufficient regard has been given by the High Court Judges to the background to the rule and to the decision of the Court of Appeal in the ABCI case where, at paragraphs 43 – 44, the Court of Appeal said that clause (f) was introduced in order to ensure that English law was consistent with Article 5(3) of the Brussels Convention. However Tugendhat J addressed this submission head-on in Cooley at [35] – [46]. He pointed out that Parliament did not fully assimilate the rules relating to non party states with those relating to states which are a party. “The significant difference that Parliament left in being was that under the Convention and the judgment regulation the Court retains no discretion, whereas in relation to non-party states there is the discretion to be found in CPR Part 6.20 and 6.21(2A). Similarly in Wink [41] Haddon-Cave J said “the case law of the Court of Justice (“CJEU”) on Article 5(3) of the Brussels Convention/Brussels I Regulation is not relevant to the construction of ground 9(a) because the two schemes are fundamentally different in structure and policy. The EU rules seek certainty at the price of inflexibility: thus forum conveniens arguments are not permitted (see Owusu v Jackson [2005] ECR I-01383). By contrast, in respect of non-regulation countries, the common law rules adopt a more flexible legal framework which admits forum conveniens and makes the assumption of jurisdiction discretionary.” As has been pointed out many times this discretion is also a proper and proportionate brake on the over-exercise of jurisdiction. See Booth [36]; Wink [39].[19]The Defendants also rely on Rome II. This was referred to in Wink, but comprehensively argued before Sir Robert Nelson in Stilyanou. It was also comprehensively rejected by him. I do not disagree with his reasoning. In short the Defendants rely on recital 2 and 17 together with Article 4(1) which states that the applicable law to non contractual obligations is “the law of the country in which the damage occurs”. This is so whether the law in question is that of a Member State or not. However:• Brussels 1 relates to a different subject matter, namely jurisdiction, and has to be construed as a separate regulation, albeit consistently with the other regulations forming part of the compatible set of measures.• Rome II does not abolish the discretion which has to be exercised under the CPR in relation to non Member States.• Article 2 on its face is wide enough to include any damage direct or indirect which the regulation as a whole covers. Article 4(1) expressly excludes indirect damage which would otherwise be included by virtue of Article 2. There is no reason why “damage” under the CPR should be interpreted as in a specific Article such as Article 4 which defines the applicable law, rather than interpreted as a general article such as Article 2 which applies to the regulation as a whole (apart from Article 4).• Inconsistencies in the meaning of damage may exist as the tests are different under Brussels 1, Rome II and CPR. The latter includes the exercise of the discretion and hence consideration of forum conveniens to ensure the proper place for the trial is selected, whereas Brussels 1 and Rome II do not.• Rome II does not concern jurisdiction and does not override CPR 9(a). Where Brussels I does not apply, the issue of jurisdiction will be governed by a country’s own rules ie. in England and Wales the CPR. (Stilyanou [47] – [54]).

The Second Question: Should the Order of 9 May 2012 Extending Time be Set Aside?

[20]The relevant provisions of CPR: 7.5(2) “Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with section IV of Part 6 within 6 months of the date of issue(1) The claimant may apply for an order extending the period for compliance with rule 7.5.(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made – (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order. …… (4) An application for an order extending the time for compliance with rule 7.5- (a) must be supported by evidence; and (b) may be made without notice.”[21]The notes to the White Book 2013 state:
“7.6.2 Applications under 7.6(2) In Marshall v Maggs reported under Collier v Williams [2006] EWCA Civ 20 the Court of Appeal held that the court can allow an application to extend time prospectively under rule 7.6(2) without being satisfied that the Claimant has taken all reasonable steps to comply with rule 7.5 as is required in a retrospective application under rule 7.6(3) but the court should still follow the guidance set out in Hashtroodi v Hancock [2004] EWCA Civ 652… FG Hawkes (Western) Ltd v Beli Shipping Co Ltd [2009] EWHC 1740; … followed Marshall v Maggs and emphasised that the better the reasons for not having served in time the more likely that an extension would be granted… 7.6.5 Supported by evidence “…the Court of Appeal has decided that for an extension to be granted the Claimant must put forward a valid reason. In Hashtroodi v Hancock …the Claimant applied ex parte for an extension of time of three weeks to serve the claim form one day before the expiry of the claim form. The extension was granted. …the Court of Appeal said the power to extend time prospectively must be exercised in accordance with the overriding objective which means a valid reason must be advanced in the application; no reason was advanced in this case – the delay was due to the solicitor’s incompetence and the extension should not have been granted.”
Applications under 7.6(2) In Marshall v Maggs reported under Collier v Williams [2006] EWCA Civ 20 the Court of Appeal held that the court can allow an application to extend time prospectively under rule 7.6(2) without being satisfied that the Claimant has taken all reasonable steps to comply with rule 7.5 as is required in a retrospective application under rule 7.6(3) but the court should still follow the guidance set out in Hashtroodi v Hancock [2004] EWCA Civ 652… FG Hawkes (Western) Ltd v Beli Shipping Co Ltd [2009] EWHC 1740; … followed Marshall v Maggs and emphasised that the better the reasons for not having served in time the more likely that an extension would be granted… Supported by evidence “…the Court of Appeal has decided that for an extension to be granted the Claimant must put forward a valid reason. In Hashtroodi v Hancock …the Claimant applied ex parte for an extension of time of three weeks to serve the claim form one day before the expiry of the claim form. The extension was granted. …the Court of Appeal said the power to extend time prospectively must be exercised in accordance with the overriding objective which means a valid reason must be advanced in the application; no reason was advanced in this case – the delay was due to the solicitor’s incompetence and the extension should not have been granted.”[22]In Collier v Williams [87] the Court of Appeal said “When deciding whether to grant an extension of time under CPR 7.6(2), the court is required to consider how good a reason there was for the failure to serve in time (assuming that the application is dealt with after the end of the 4 months period): the stronger the reason, the more likely the court will be to extend time; and the weaker the reason, the less likely. This involves making a judgment about the reason why service has not been effected within the 4 month period. It is a more subtle exercise than that required under CPR r7.6(3) which provides that unless all reasonable steps have been taken, the court cannot extend time.”[23]The Defendants also rely on the White Book note 6.37.22 as to the effects of delay where a foreign defendant is to be served and the permission of the court is required.[24]I have already set out a chronology in paragraph 4 above. However, it is necessary for me to examine the period between the issue of the Claim form on 24 November 2011 and the hearing before Master Fontaine on 9 May 2012 in more detail. The Appendix to this judgment contains a chronology between those dates as it appeared on the witness statement and correspondence between the parties at the outset of the hearing. After hearing certain submissions from both sides, the Claimants thought it expedient to adduce more evidence and there is a fifth witness statement Mr Levy, the Claimants’ Solicitor, dated 3 December 2013.[25]Some preliminary points made by the Claimants can be disposed of quickly in favour of the Defendants. These are:(i) Although, as appears from the Appendix, the hearing before Master Fontaine on 9 May 2012 was formally without notice, both sides agreed that it should be without notice and the Defendant was served with all documents and agreed that the hearing should proceed in that way. The Defendants did not seek to adjourn.(ii) In the agreement made on 4 February 2013 (see paragraph 4 above) the Defendants reserved the right to contest jurisdiction but did not reserve the right to contest the extension of time by Master Fontaine.(iii) The Defendants could have applied, and should have applied discretely, to set aside the extension of time shortly after the order was made by Master Fontaine. I reject these submissions, following the same numbering, for these reasons: (i) The hearing on 9 May 2012 was formally without notice. The Defendants were not a party to the proceedings at that stage. They cannot be criticised for allowing the hearing to go on without notice. This is especially so as they could not have been in a position to take full instructions so as properly to contest the extension of time application. Nor can they be criticised for failing to seek an adjournment. (ii) In the agreement dated 4 February 2013 it was provided “the Defendant will have the same rights to contend that the English court does not have jurisdiction to try this claim and/or should not exercise any jurisdiction which it does have as if service had been effected at the appropriate office of the Defendant in India.” Earlier it was stated “The Defendant does not by this agreement forfeit or waive any rights to contend that the English court does not have jurisdiction to try this claim and/or should not exercise any jurisdiction which it does have.” I do not accept that this wording was not apt to preserve the Defendants right to make an application setting aside the extension of time. This is particularly the case if one has regard to the explanation of the word “jurisdiction” by the Court of Appeal in Hoddinott v Persimmion Homes (Wessex) Limited [2007] EWCA Civ 1203; 2008 1WLR 806 at [23]. (iii) The Defendants cannot be criticised for failing to make the application prior to their having been properly served. This only took place by reason of the agreement dated 4 February 2013. Until that date they were not a party.[26]I therefore consider what the Court of Appeal in Collier v Williams [131] said was the “critical enquiry that the court must undertake in these cases.” This is “the strength or the weakness of the reason for the failure to serve is not one of a number of factors of roughly equal importance to be weighed in the balance. The exercise of going through the checklist of factors set out in CPR rule 1.1(2) will not be necessary. If, as in the present case, there is no reason to justify the failure to serve the claim form in time, it should normally not be necessary to go further.”[27]On the evidence before the court on the morning of 3 December 2013 as set out in the Appendix, the Defendants submitted that there was no good reason for the delay from issue of the claim form until the date the application was made on 23 April 2012. It is to be noted that initially the application was merely to serve out of the jurisdiction. The extension of time was requested in Mr Levy’s second witness statement dated 3 May 2012 for reasons to which I shall turn in a moment. The Defendant said that the period after the issue of the claim form was used up with correspondence that could have been sent prior to November 2011. Having cited the Defendants’ address on the claim form as being in Mumbai, the Claimants should have made the application to serve out much more expeditiously. Further, Tata Limited’s letter of 22 November 2011, the Defendants’ fax of 24 January 2012 and their further fax of 22 February 2012 made it crystal clear that an application would have to be made to serve the Defendants in India. There was no good reason for the Claimants’ Solicitors to have waited until the Defendants’ Solicitors application dated 18 April 2012.[28]However Mr Levy’s fifth witness statement of 3 December 2013 gives substantially more background to the case. I shall summarise some of the key points:(i) The first meeting with the Claimants (ie. the First Claimant’s father and the Second Claimant) was on 10 February 2009. At that stage the First Claimant was still an inpatient in hospital. Some investigations were carried out during 2009, but the First Claimant spent that year and until September 2010 trying to come to terms with his life as a paraplegic. The First Claimant signed a formal retainer agreement on 29 September 2010.(ii) Mr Levy made enquiries in relation to a petition to the Indian Supreme Court seeking a direction that the owners of the Taj Mahal Palace pay compensation.(iii) On 7 February 2011 the First Claimant instructed his solicitors to proceed with the investigation of the claim against the owners of the hotel. Medical records were obtained and Mr Levy began to seek evidence as to liability. He needed to know whether there was a reasonable prospect of success and whether his firm would be prepared to act under a conditional fee agreement and also be able to obtain ATE insurance.(iv) Counsel were instructed in April 2011. Liability investigations continued. The summer of 2011 was a difficult period for the two Claimants who were having relationship difficulties which culminated in the Second Claimant leaving their shared home in October 2011.(v) Investigations continued and Mr Levy spoke with a number of potential experts about what had happened in Mumbai and of the standards expected from the hospitality industry in such a situation.(vi) By the time of the third anniversary of the attacks, Mr Levy still did not have sufficient evidence to advise the client or the ATE insurance providers as to the likely prospect of the claim succeeding. He issued the claim form protectively in England on 24 November 2011, naming four corporate entities that investigations had revealed might be regarded as the owner and/or proprietor of the Taj Mahal Palace Hotel.(vii) During December 2011 and January 2012 he continued to carry out investigations as to the nature and extent of the business operated by the Defendants in London and to seek liability evidence. He was seeking to contact experts in the hospitality and security industries. He communicated with at least six potential liability experts.(viii) Counsel’s Advice was being obtained and the ATE insurers were being consulted.(ix) Investigations were also continuing as to the prospect of proceedings in India. Mr Levy ascertained that the petition to the Supreme Court in India had been made, because the Claimants did not believe they would be able to obtain justice by proceeding in the Bombay High Court owing to delays endemic in such proceedings. He also ascertained that there would be no funding available for his clients to sue in India.(x) Professor Gunaratna was instructed as a liability expert on 8 February 2012. On 14 March 2012 he gave a very favourable Advice on liability in a telephone conversation. In the light of that advice Counsel were able to advise on liability and ATE insurance was secured.(xi) At that stage there was sufficient evidence upon which to base a belief that Buckingham Gate, London, constituted a place of business of the Defendants.(xii) Once the Defendants’ Solicitors had issued the application on 18 April 2012 he acted very promptly in issuing an application for permission to serve out of the jurisdiction. In his witness statement in support of the application he set out in some detail the basis on which the Claimants believed that the Defendants could be served as of right within the jurisdiction. That decision was based on what appeared at the time to be good evidence.(xiii) In the period February, March and early April 2012 Mr Levy was also pursuing enquiries of the Indian law expert as to the matters that might affect forum. These enabled him to deal with these matters fully in his witness statement of 23 April 2012 in support of the application to serve out of the jurisdiction.(xiv) Initially Mr Levy hoped that service could be effected within the six month period of validity which was due to expire on 24 May 2012, a month after the application for permission to serve out was made. However he was then advised by Senior Master Whitaker that, in his experience, the Indian Central Authority were taking an inordinately long time to serve proceedings following a request made by the High Court in London. He therefore pursued enquiries of the foreign process section as set out in his second witness statement dated 3 May 2012. In view of their response and in order to protect his clients’ position, he sought a nine month extension of time for service out. This was granted by Master Fontaine.(xv) Indeed, as a matter of information, it appears that service has not yet been effected by the Indian Central Authority on the Defendants in Mumbai. However that has been overtaken by events, namely the agreement of 4 February 2013.[29]Having reviewed all the evidence and taking into account the detail now provided in Mr Levy’s fifth witness statement I have no doubt but that the application by the Defendants to set aside the extension of time granted by Master Fontaine should fail. Following the principles in Collier v Williams [131], I determine and evaluate that there were good reasons to justify the failure to serve the claim form in time. The Claimants’ Solicitors were anything but inactive. It is true that Tata and subsequently the Defendants said that the Defendants must be served in Mumbai. However at that stage it appeared (not unreasonably) to the Claimants’ Solicitors that there was a real possibility of effecting good service in England. Because of the complexity of the case and the chronology prior to the issue of the protective claim form, the Claimants did not secure ATE insurance (so as to protect them against any adverse costs order made in favour of Defendants) until after 14 March 2012. Finally, they did not ascertain that there were immense problems in serving process in India until Senior Master Whitaker told them of his experience, this being end April/early May 2012. This led to Mr Levy attending the foreign process section on 2 May 2012 at the Royal Courts of Justice in London, where he was told that it was taking “an inconsistent eight months” for the Indian Central Authority to serve proceedings on its nationals after receiving a request to do so from London. In my judgment the Claimants cannot be criticised for failing to have this information prior to that date, in all the circumstances of this case.

The Third Issue: Are the English Courts the Forum Conveniens for this Claim?

[30]The relevant rule is CPR 6.37(3) which provides:
“The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”
[31]The leading authority is Spiliada Maritime Corporation v Cansulex Limited [1987] 1A.C. 460. The Claimants concede that the “natural forum” ie. “that with which the action had the most real and substantial connection” is India. In those circumstances the court “will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this enquiry, 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 Plaintiff will not obtain justice in the foreign jurisdiction…on this enquiry the burden of proof shifts to the Plaintiff.” Lord Goff in Spiliada at 477G-478 E.[32]I should cite a further passage from Lord Goff’s speech in Spiliada. This is at page 480H-481E. He said:
“A second, and more fundamental, point of distinction…is that in the Order 11 cases the plaintiff is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction. Statutory authority has specified the particular circumstances in which that power may be exercised, but leaves it to the court to decide whether to exercise its discretionary power in a particular case, while providing that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction" (see R.S.C., Ord. 11, r.4(2)). Third, it is at this point that special regard must be had for the fact stressed by Lord Diplock in the Amin Rasheed case… the jurisdiction exercised under Order 11 may be "exorbitant". This has long been the law. In Société Generale de Paris v. Dreyfus Brothers (1885) 29 Ch.D. 239, 292-243, Pearson J. said: “It becomes a very serious question .... whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction.”
That statement was subsequently approved on many occasions…the effect is not merely that the burden of proof is on the Plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as of right.” “It becomes a very serious question .... whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction.”[33]Mr Block QC for the Defendants draws my attention to certain other passages in the Spiliada case.

(i) Lord Templeman at 465C-D:

“The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case. Any dispute over the appropriate forum is complicated by the fact that each party is seeking an advantage and may be influenced by considerations which are not apparent to the judge or considerations which are not relevant for his purpose.” (ii) Lord Goff at 480B-D agreed with the statement of Lord Wilberforce “that in order to decide whether the case is a proper one the court must take into account the nature of the dispute, the legal and practical issues involved, such questions as local knowledge, availability of witnesses and their evidence and expense.” (iii) Lord Goff at 483C-D “But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases.”
[34]Further the Defendants draw my attention to the statement of Mr Goel, the Executive Director – Finance of the Defendants who sets out the horror of the events in November 2008 and that the staff have been recognised both in India and abroad as heroes in the light of the many extraordinary acts of bravery when assisting in the evacuation of guests. He says:
“the English courts would need to hear the evidence of a significant number of the Defendant’s staff involved as well as the guests who were in the hotel during the attack. Very few of the staff are mother tongue English speakers. The majority of the guests in the hotel on the night were also Indian Nationals. Therefore the principal witnesses are located in India.”
Mr Goel says:
“there would be significant logistical and financial implications in arranging for them to give evidence in the context of proceedings before the courts of England and Wales. In terms of the hotel staff, it would also have implications for the running of the hotel.”
He makes two further points of note:
“a. The English courts would need to hear evidence in relation to the acts of the Indian Government Officials and representatives from each of these agencies. Any issues as to the adequacy of the response of these bodies are highly sensitive and personal to the Indian State and should be considered in the Indian Courts. b. The events of 26 November 2008 – 29 November 2008 affected many individuals at IHCL on a personal level. I mean no disrespect to the English Courts when I say that the idea that their conduct should be reviewed by a foreign court who cannot have a full sense of the local circumstances is disturbing.” “there would be significant logistical and financial implications in arranging for them to give evidence in the context of proceedings before the courts of England and Wales. In terms of the hotel staff, it would also have implications for the running of the hotel.” “a. The English courts would need to hear evidence in relation to the acts of the Indian Government Officials and representatives from each of these agencies. Any issues as to the adequacy of the response of these bodies are highly sensitive and personal to the Indian State and should be considered in the Indian Courts. b. The events of 26 November 2008 – 29 November 2008 affected many individuals at IHCL on a personal level. I mean no disrespect to the English Courts when I say that the idea that their conduct should be reviewed by a foreign court who cannot have a full sense of the local circumstances is disturbing.”
[35]I heard evidence from Indian lawyers. These were Mr Kachwaha for the Claimants and Mr Kapadia for the Defendants. Mr Kachwaha’s report is dated 16 August 2013. Mr Kapadia’s is dated 3 August 2013. Mr Kachawa is a partner in a law firm in New Delhi and has little experience in relation to the Bombay High Court. He essentially based his opinion on documents and statistics in the public domain, though he had had discussions with lawyers from his firm’s Mumbai office who had confirmed his conclusions. Mr Kapadia has been an advocate in the Bombay High Court since 1966 and a Senior Advocate (similar to Queen’s Counsel) since 1986. He practises in civil commercial litigation and has considerable experience in the practice and procedures of the High Court in Bombay. He has been President of the Bombay Bar Association for the past 4 years and was its Vice President for 6 years before that. Messrs Kachawa and Kapadia signed a joint statement on 19 November 2013. Many matters were uncontroversial but they both had to give evidence on some important points in dispute. Before I turn to the matters on which I need to make findings of fact. I will deal with some factors which I have to consider in determining whether it would be unjust to stay the case.[36]The applicable law, whether the case is tried in England or in India will be Indian law. The Indian and English law contain similar rules on substantive law of negligence. Nevertheless the Defendants make the following points: (i). Breach of duty would have to be tested against local standards. As Mr Kapadia said “the standard of care to be expected from a Defendant depends on a consideration by the court of the standard prevailing in the area in which the Tort is alleged. An assessment of the appropriate standard depends on an assessment by the judge of the local standards reasonably to be expected. This assessment may in part turn on evidence, but will also turn on the judge’s knowledge, understanding and experience of the place in which the Tort is alleged to have occurred.” Thus the English courts will have to determine the case by reference to the Indian standards. I regard this as a matter of some, but not a very strong, significance which I need to weigh in the balance. English courts are well used to determining such cases. (ii). There is not so much personal injury litigation brought in the Mumbai High Court. The gist of the expert evidence was that English law is more developed in the Tort of negligence. The present case requires a court to scrutinise the duty of an occupier to visitors injured by acts of war/terrorism perpetrated by third parties. Neither Indian expert professed to be able to deal with this point in detail. It is right to say that there is some risk that an English court will be required to determine what the law of India would be to cover the Claimants’ claim against the Defendants, in circumstances where there is no clear authority in the Indian courts. However, I can put in no higher than that. Again this is a factor which I take into account but I do not give it a great deal of weight.[37]I must consider on the one hand the practicalities of a trial in India for the Claimants and the Claimants’ witnesses and on the other the practicalities for the Defendants and the Defendants witnesses.[38]As far as the First Claimant is concerned, he is now paraplegic and suffers from ongoing problems managing his bowels and bladder. It would be extremely difficult for him to travel to and stay in India, apart from the obvious psychological difficulties in returning to Mumbai. The last point also is of relevance for the Second Claimant. If the claim was heard in England, both could attend a trial with relatively little difficulty. They both attended the three day hearing of the present application.[39]As to the Defendants’ witnesses, it is correct that the majority of them are likely to be Indian residents. The Defendants submit that many will have no passports and would require visas to come to England. The witness evidence served by the Defendants shows that travel to England for trial would be onerous for many of them. The Defendants do not know how many witnesses they would wish to call. However, they suggested, upon questioning from me, perhaps 10 to 20 staff with evidence from other hotels, local police and security services in addition. I accept that the Defendants may wish some central witnesses to give evidence live in England. To a substantial extent, a number of witnesses could give evidence by video link (there is approximately a six hour time difference I am told). Also(a) some evidence of witnesses might be given on commission(b) there is a real possibility that evidence as to what happened during the attack may not be contested. It has already been exhaustively investigated in the criminal trial of the attacker who was captured and in a (non adversarial) enquiry carried out by the State. If a trial took place in India Mr Kachwaha’s evidence was as follows:
“6.2 Consequent upon an amendment to the CPC in 2002, in every case examination in chief of a witness shall be on Affidavit. Cross-examination and re-examination of the witness (if any) can be by the Court or by a Commissioner appointed by it. In most matters (especially where substantial oral evidence is involved) the cross-examination and re-examination is through a Commissioner.”
In the joint statement Mr Kapadia broadly agreed with the above but said that evidence of lay witnesses can always be taken orally. He added that he thought that a court would want to hear oral evidence because there are a lot of questions of liability and the judge would like to see the demeanour of the witnesses. He said that also there may be some confidential documents referred to by a witness and it is the judge’s duty to consider whether such documents are too private or secret to be kept away from the public gaze. Doing the best I can, I believe that in India a substantial amount of evidence would be on commission, though a judge may wish some central witnesses to give oral evidence. I accept that it is more convenient to the Defendants and the Defendants’ witnesses to have a trial in India. Nevertheless, it is my judgment that they would not be significantly prejudiced by a trial in England because (a) the central witnesses would be able to travel and/or (b) the main witnesses could give evidence by video link and/or (c) a number of witnesses are likely to be agreed or their evidence will be relatively uncontroversial and able to be taken on commission. Documents could readily be scanned and made available to the parties in electronic form in England and Wales. Any critical ones could be printed off and bundled. Mr Kapadia mentioned the possibility of confidential, secret information or documents and in particular secret state material being relevant. In the Bombay High Court the judge would be able to determine relevance, but he said that such evidence would not be available to the English Court. However, I am not persuaded that there would be any significantly greater problem for the English court as compared with the Bombay High Court. This is particularly the case having regard to the criminal trial which examined a great deal of evidence and the State of Maharashtra Enquiry, whose report was published on 21 December 2009. In addition there is a Right to Information Act 2005 in India. Finally, the Defendants made the point that, although the language of the Indian High Court and Appellate Court is English, a number of witnesses will not have English as their first language. They say that nevertheless the judges and lawyers in the Bombay High Court will often be familiar with the first languages spoken by witnesses. Also, that any judge or advocate would be able to understand English Hindi Marathi and Gujarati. To the extent that evidence is adduced before a Commissioner in India (for use either in India or in England), this matter does not assist the Defendants. Insofar as translators would be required in England there is some merit in this point in favour of the Defendants, but it is not a matter of great weight.[40]The Defendants submit that it would be essential for a judge to have a site visit to the hotel. Although this would be more costly for an English judge, I see no reason why an English judge should not make a site visit to the Taj Mahal Palace.[41]I now turn to a major contention between the parties, namely delay in the Bombay High Court. I shall subsequently consider the further effect of appeals and the possible effect of expedition. The first matter is an estimation of the time it will take for a first instance (what in Mumbai is called ‘original jurisdiction’) case would take to come to trial, absent expedition.[42]I was told by Mr Block QC, in his final submission, that the Defendants undertake to cooperate to move proceedings along as quickly as possible if the case takes place in Mumbai. For example they would support expedition. Whilst no doubt a worthy and sincere expression, I am not persuaded that this would have a significant effect on the timetable of a case in Mumbai.[43]It was not disputed that until recently the situation illustrated in the Indian statistics applied to the Bombay High Court. Indeed the Bombay High Court historically has been in about the third worst position so far as delay in the Indian courts is concerned. In a recent case in the Supreme Court of India SuoMotu Contempt Petition no. 312 of 2013 in Civil Appeal no. 1398 of 2005 decided on 22 August 2013 the Judge said this: “18. In the present era, the legal profession, once known as a noble profession, has been converted into a commercial undertaking. Litigation has become so expensive that it has gone beyond the reach and means of a poor man. For a longtime, the people of the nation have been convinced that a case would not culminate during the life time of the litigant and is beyond the ability of astrologer to anticipate his fate…. Any order passed by the Trial Court on the application of substitution of legal representative(s) is generally challenged time and again right up to this Court with the proceedings in the Courts below remaining stayed.” (Although only one case and therefore possibly not representative, it appears that the civil appeal was lodged in 2005, and decided in the Supreme Court in 2013, a delay of 8 years. However it would not be right to draw much, if anything, from this.)[44]The total Bombay High Court pendency figures civil and criminal had risen from 325,784 on 1 January 2005 to 372,807 on 30 September 2012.[45]Mr Kachwaha estimated the case would take 15 years to reach a first instance trial in the Bombay High Court. This was substantially based on a document entitled “National Mission for Delivery of Justice and Legal Reform” citing a resolution of 25 October 2009 in which there was a commitment “to reducethe pendency of cases from 15 years to 3 years”. Mr Kapadia did not give a figure for reaching trial on a historical basis. It appears to me that the estimate of 15 years was a reasonable one given that Bombay pendency figures were as bad as, if not worse than, the majority of courts in India. Nevertheless Mr Kapadia relied upon a reform in the Bombay High Court which began in September 2012, and on expedition.[46]There was evidence from Mr Kachwaha that reforms in the past in Indian courts have achieved little in terms of reducing delays. That said, I have to evaluate the evidence in relation to the specific reform upon which Mr Kapadia relied. There is a “statement showing the number of matters transferred to Bombay City Civil Court till date”. This is signed by a Master and Assistant Prothonotary on 8 July 2013. It shows that over 36,000 matters were transferred to the Bombay City Civil Court till 6 July 2013. This was pursuant to a government notification dated 28 August 2012, read with a note dated 7 September 2012. It appears that possibly (and this is not 100% certain) transfer started some time after September 2012. The matters remaining with the Bombay High Court as at 6 July 2013 numbered 4,676. They have not been transferred because they were of a value of more than 1 crore (approximately £100,000 as at today’s exchange rate) and intellectual property matters. Mr Kapadia said that the same number of judges are dealing with original jurisdiction for civil trials. This at present is two judges. It has been two judges for some time. They also have other work as well as original jurisdiction civil trials. Mr Kapadia’s evidence was that because of this reform an original jurisdiction trial would take place within four years without expedition.[47]To what extent am I confident that the estimate of 15 years will drop significantly and/or will drop to Mr Kapadia’s figure of 4 years? The Defendants’ submission was that, given that the workload of this aspect of the two judges’ case allocation has fallen by somewhere between 80 – 90% of the figure as at September 2013, this demonstrates that a case will get on much more quickly now. Unfortunately there were no figures against which to compare the number of outstanding civil trials on an historical basis. The evidence only gave the total number of cases (which in recent years has always been more than 300,000). There is therefore no point of reference to say whether the civil trials figures were, prior to September 2012, getting better or worse, or were stable, in terms of their backlog. On the figures alone it is impossible to say with any confidence what effect the transfers will have. Of course, all things being equal, cases will be heard more quickly than they otherwise would have been. The problem is that I do not know, specifically in relation to civil trials, what the pre-reform trends were showing. It is certainly possible that the transfer will have only a marginal effect on waiting times or that they will merely ensure that they get no worse.[48]I therefore consider whether there is any other useful evidence, whether statistical or anecdotal from Mr Kapadia, which can persuade the court that the 15 year estimate of the pre-reform position will be significantly affected. There were no figures put before the court to show if this had happened to any civil trials in the last 12 months. There is no statistical evidence of how many civil trials from any particular year have reached fruition in 2012 – 2013. There was a document produced which was pored over in some detail. This shows the Bombay High Court judges listed with effect from 11 November 2013. It does not tell us until when it is operative. Mr Block QC suggested to Mr Kachwaha that it would be until Christmas and he accepted this. Whether or not that is the case, it demonstrates that two judges deal with original jurisdiction matters (inter alia). One judge (number 7) deals with suits to 2010; another judge, judge number 9, deals with suits issued in or after 2011. Mr Kachwaha did not accept that trials were taking place. Mr Kapadia said that they were. I am far from convinced that I can draw much from this document. Even if some trials are taking place before judge number 9 in respect of suits issued in or after 2011, there are no numbers and they may well be ones which have been expedited. The position is extremely unclear.[49]I have given only an overview of what was a lengthy examination of the statistics and documentation. Nevertheless, although it is a possibility that the reforms will have a significant effect on the waiting times for an original jurisdiction civil trial, I am far from convinced this is the case. I cannot find on the balance of probabilities that this will happen. I asked Mr Kapadia at the end of his evidence whether there was any other information whether anecdotal or statistical to support his estimate of four years or whether it was just his “gut” feeling. Essentially he accepted it was the latter. Mr Block QC said that he is an experienced advocate in the High Court and that this is his professional opinion. Nevertheless, on careful analysis, it is not founded on any basis which I find reliable.[50]In summary, I conclude that the probabilities are that the estimate of 15 years to reach a first instance civil trial in the Bombay High Court remains still the probable best estimate.[51]There was mention by Mr Kapadia of an increased number of judges. So far this has achieved a net increase of one judge, due to other judges retiring. He mentioned that there was an expectation that 11 new judges would be appointed. However, there was no proper evidence of this. Nor was there any evidence that any new judicial manpower would be allocated to the original side jurisdiction. I therefore cannot rely upon any increase in the number of judges as a basis for confidently predicting a reduction in waiting times.[52]I now turn to the question as to whether this case would be expedited in the High Court in Bombay, such that the first instance trial would be heard earlier than normal. Mr Kachwaha’s evidence was that almost every Plaintiff would at some stage or other try to expedite proceedings, but in the vast majority of cases such applications are not successful. He said that he would not expect any unusual public sympathy for the Plaintiffs to the extent that the court would give preference to their case over other litigants in the queue. He said that there are many hard luck cases stuck in the courts of India and the judge has to deal with them with an even hand. In the joint statement at paragraph 3 it says “Mr Kapadia says that the litigation could be over in a period of four years, principally because of the significant possibility of expedition of the case.” He was taken to task by Mr Havers QC because his oral evidence was that his estimate of four years was absent any expedition. Eventually he said that this was an error in the joint statement. I do not pause long over this point since I have already made my findings on delay in the Bombay High Court absent expedition. However, it is important that I focus on words “significantpossibility of expedition”. This compared with his report in which he said “I have little doubt that an application for expedition by the Claimants would have been successful.” I have to say that it is a little troubling that the joint statement did use different words which significantly reduce the prospects of expedition. In any event, Mr Kapadia’s oral evidence was that he was confident that there would be expedition. Expedition is granted based on(i) the age of a plaintiff (this is not relevant here because by age it means if somebody is over 60, which neither Claimant is);(ii) the importance of the case. As to this latter fact, Mr Kapadia said that the attacks in November 2008 were completely exceptional and the Indian courts would be anxious not to have cases arising from these events delayed. He points to the disposal of the criminal process which was very complex but dealt with very expeditiously. He added that the court would be concerned with this case as to whether a hotel can be held liable for such terrorist attacks.[53]I am not persuaded that expedition is more than a possibility. I do not find it to be probable, much less nearly certain. Given that there has been an enquiry (non adversarial) and a criminal trial of the one terrorist who was captured, I am not persuaded that the Indian courts would regard this case as being of such importance as to require expedition. Mr Kapadia had stated in his report “it is quite well known that in the Bombay High Court several cases are expedited. I can give you details of one such case viz. Appeal number 493 of 2012 in notice of motion number 2651 of 2004.” Mr Kachwaha investigated this case. He was not able to locate the order expediting the hearing. However, he did locate the judgment in the suit which led to the appeal. It was filed in 1994. Ten years later, in 2004, the Defendant took out an application seeking rejection of the plaint. It took seven years for the application to be disposed of and the same was allowed in 2011. Thus from issue to disposal of application was 14 years. Mr Kapadia could shed no light on this. He had not checked the matter himself. In the absence of any other examples of expedition, there is no persuasive material to support Mr Kapadia’s opinion.[54]In short my finding is that the probabilities are that the case will take some 15 years in the Indian High Court and that, although expedition is a possibility, it is unlikely.[55]I turn briefly to consider the appeals. Both Indian law experts agreed that a first appeal was very likely. Mr Kachwaha estimated that this would take 8 years. Mr Kapadia estimated 2 years. In the joint report he said “if the matter is expedited, I would opine that the appeal process in the Bombay High Court would take about two years.” Later (para 4.2.3) he said “Mr Kapadia feels that the appeal process should take about two years. However, if the same is expedited it could be done as early as possible.” He said that the first statement was in error. An appeal should take about two years but could take much less if expedited. I appreciate that Mr Kapadia has much more experience of the Bombay High Court than Mr Kachwaha. Nevertheless he gave no proper evidential basis for his opinion. Mr Kachwaha gave some statistics from 1985 for the High Court in India as a whole. These statistics were set out in 124th Law Commission report. They showed that on average an appeal would take four years. From this he extrapolated that because the pendency in the High Court of Bombay had jumped over 2½ times since 1985, the pendency in the first appeal to a Division Bench of the High Court of Bombay would be around 10 years. This in itself is not very persuasive evidence. However he also attached a Supreme Court judgment in the case of Perumon Bhagvathy Devaswom, Perinadu Village v Bhargavi Amma (Dead) [2008] 8SCC 321. This was an appeal from a decision in the State of Kerala. Kerala statistics are generally not as bad as those in Mumbai. At paragraph 16 the Supreme Court

Judge said:

“In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more)…. The High Courts are overloaded with appeals and the litigant is in no way responsible for non- listing for several years.”
[56]Unfortunately again I did not have hard statistics as to any cases which had been heard in the Bombay High Court and how long they had taken to reach the first appeal stage. Nor was there any good anecdotal evidence. Again my judgment is that there is no more than a possibility of expedition. Doing the best I can, I think it unlikely that an appeal would be heard in less than five to six years.[57]Finally there is the possibility of an appeal to the Supreme Court. The experts were agreed that only about 3% of cases are admitted. Although there was a little dispute as to the time to reach the Supreme Court, I am not going to examine the evidence in detail since Mr Kapadia suggested about three years and Mr Kachwaha four years. Mr Havers QC said that if Mr Kapadia was right about the importance of the case then perhaps there was more than a 3% chance that the case would reach the Supreme Court. However since I have determined that it is unlikely that Mr Kapadia is right about the importance of the case in the Indian legal system, I regard the prospects of an appeal to the Supreme Court as no more than 3%.[58]In summary, my estimation is that the time this case would take to reach the probable end stage in India is some 20 years ie. about 15 years in High Court plus 5 years on first appeal. There is the possibility of an appeal to the Supreme Court delaying the claim for another 3 – 4 years and of interlocutory appeals from the original jurisdiction adding to that total period. There is also the possibility that reform will reduce the time span. Overall, I remain with the bracket of 15 to 20 years.[59]Mr Havers QC estimation of the likely procedure in England is that there would be a split trial within 2 to 3 years. The court would then have power, if the Claimants succeeded, to award substantial interim payments pending the hearing of (or agreement in respect of) quantum issues.[60]The First Claimant has been grievously injured. Whether or not that is the Defendants’ responsibility has yet to be determined. It is conceded that he has an arguable case that it is the Defendants’ responsibility. For reasons which I have dealt with earlier in this judgment, there has already been the expiration of five years since the terrible occurrences in November 2008. The claims in England give the prospect of at least the interim payment for damages and (in any event) resolution of the liability issue in 2 to 3 years compared with another 15 to 20 years in India. This is a very significant factor in my judgment. It is particularly so given:a. The First Claimant is a man who is not quite 34 years of age. A favourable decision in England would give him the money substantially to improve his standard of living and enable him to better come to terms with his disability when he is about 36 years of age. If the proceedings have to be brought in India then he would be something like 50 to 55 years of age before that occurs. Further, proceedings in England, if the claim fails, will be over and done with in a couple of years or so. In the event of failure, the Claimants will have to put this matter behind them and get on with their lives as best they can.b. Five years have already passed and the availability of witnesses and the quality of their recollections will have been affected. It seems very likely that whatever recollection they retain over the next couple of years will be significantly undermined if the delay is 15 to 20 years. Further, witnesses are much more likely to be alive and/or available for an English trial than a trial in Mumbai.[61]I echo the words of Mr

Justice Sheen in The“Vishva Ajay” [1989] Vol.2 Lloyds Law Report 558 at 560 where he said:

“There is a substantial body of evidence that if this case were to proceed in the High Court at Bombay the trial would be delayed for many years. …many actions do not reach trial in less than ten years and it would be wholly exceptional for an action to come on for trial in less than six years. Delay of this magnitude seems to me to be a denial of justice. It is in the interests of justice that actions should come to trial at a time when the witnesses can reasonably be expected to have some recollection of the events in question…”
[62]Finally I turn to the issue of funding. There are three aspects to funding:(i) The Claimants’ funding of their claims to judgment.(ii) After judgment, and if the Claimants are successful, a costs award in their favour.(iii) After judgment and if the Claimants are unsuccessful, the Claimants’ responsibility for their own costs and for the Defendants’ costs.[63]In this case only the funding of the claim to judgment is of any real significance. This is because:(i) It is common ground that if the Claimants were successful in India then they would not obtain a worthwhile costs order against the Defendants. Nevertheless the Defendants have neutralised this point by offering an undertaking that they would pay the Claimants’ reasonable costs of the action in India, such costs be calculated as if assessed on a standard basis in England. The Defendants are prepared to enter into discussion with the Claimants, should I order this case be stayed in England, so as to ensure that this undertaking is effective.(ii) Given that a costs award in India is extremely modest, if the Claimants fail then their liability for the Defendants costs would be minimal.(iii) If the Claimants fail, they would be responsible for their own costs if the claim was brought in India. I do not regard that fact as being a matter which leads to a denial of justice.[64]I therefore consider funding to judgment. The Claimants assert that they cannot fund this case in India. The Indian experts agree that public funding, conditional and contingency fee arrangements are absent in India and there is no funding available for the costs of experts in India. In England the Claimants have the benefit of conditional fee agreements and after the event insurance, all entered into before the 1 April 2013. This is a significant benefit to any Claimant. The Claimants will be able therefore to litigate their claims in England.[65]There is no doubt that, in order to run the litigation properly, the Claimants need experienced lawyers and reliance on expert evidence, not just on quantum but also on liability. It would be impossible for them to litigate without expert evidence and almost impossible for them to litigate without experienced lawyers.[66]The evidence tends to show that trial costs of litigating in India would be in the region of £200,000 - £300,000. Given the number of witnesses, it is perhaps more likely that the top end of that bracket would be applicable. In addition, if the Claimants succeeded, there would almost certainly be an appeal which would require further costs. Also there would be the Claimants’ costs of travel/accommodation in India.[67]There was little evidence of the Claimants means. Mr Havers QC said that this point had not been raised in the Defendants’ witness evidence. It would have been more helpful to the court if there had been proper evidence of income, capital and expenditure of each Claimant. However I have to deal with the evidence which is before me. This is:(i) Mr Levy’s witness statement dated 23 April 2012 says “the Claimants can’t afford to pay lawyers to act on their behalf…the Claimants quite simply cannot afford to pursue the claim in India.”(ii) The First Claimant’s witness statement (paragraph 43) said that he lost his employment after the accident. He managed to get a job with an advertising company where he took employment as a copywriter. He is now freelancing as a copywriter.(iii) The Second Claimant’s witness statement shows that she is a producer for a media production company where she has worked since 2004.(iv) Mr Havers QC told me that the First Claimant has received £175,000 from the Criminal Injuries Compensation Authority. This was in October 2012. It is a final award (i) which he will have to pay back if he succeeds in this litigation; (ii) he needs this money in order to assist him to run his life and he cannot afford to risk it on litigation. He has received some £30,000 in charitable payments to pay for a wheel chair and aids and equipment so far.[68]Despite the fact that there is some force in the Defendants’ criticism that the Claimants should have set out more detail as to why they cannot finance a claim in India, and taking full account of the fact that the burden is on the Claimants, I do accept that they will not be able to finance the claims in India. I also regard it as self evident, in the absence of evidence to the contrary, that lawyers and experts in India will, as is normally the case, require funding as proceedings continue. There is no evidence that they would await the outcome of any decision. Indeed I regard this to be extremely unlikely given the approximately 15-20 year delay to which I have referred. Nor is there anything to support the possibility of any other Third Party funding of Indian proceedings, a suggestion which I regard as wholly speculative.[69]Against that factual backdrop I now consider the relevance of the funding issue on the authorities. I accept that funding is only one factor in the decision making process. (See Roneleigh Limited v MIIExports Inc [1989] 1 WLR 619 at 624H). Further, I must take account of the following guidance given by the House of Lords: (i) Connelly v RTZ Corporation plc [1998] AC 854. In this case the Plaintiff worked for four years in Namibia at a uranium mine operated by a Namibian subsidiary of the First Defendant, an English company. The judge found that the Plaintiff was impecunious and would be unable to obtain any sort of legal aid in Namibia to finance litigation, while in England legal aid would be available to him. Lord Goff stated 873 E-H:
“I therefore start from the position that, at least as a general rule, the court will not refuse to grant a stay simply because the plaintiff has shown that no financial assistance, for example in the form of legal aid, will be available to him in the appropriate forum, whereas such financial assistance will be available to him in England…. I cannot think that the absence of legal aid in the appropriate jurisdiction would of itself justify the refusal of a stay on the ground of forum non conveniens….The question, however, remains whether the plaintiff can establish that substantial justice will not in the particular circumstances of the case be done if the plaintiff has to proceed in the appropriate forum where no financial assistance is available.” (ii) Lubbe v Cape plc [2000] 1 WLR 1545. This was a group action claim begun in England by South African Citizens resident in South Africa against the Defendant, a company registered in England which owned a number of subsidiary companies in South Africa. They were claims based on asbestos exposure. At page 1554 E-H Lord Bingham reviewed the Spiliada and Connelly cases pointing out that “it is only if the Plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused (the Spiliada case, at p482; the Connelly case, at p873).”
He then cited Lord Goff’s speech in Connelly and continued (155E-F):
“In the Connelly case a majority of the House held that the case before it was such an exceptional case. The nature and complexity of the case was such that it could not be tried at all without the benefit of legal representation and expert scientific assistance, available in this country but not in the appropriate forum, Namibia. That being so, the majority of the House concluded that the Namibian forum was not one in which the case could be tried more suitably for the interests of all the parties and for the ends of justice. ”
At 1557E-1559G Lord Bingham reviewed the material in the case before the House. One of the factors was that this was a group litigation case in England and that this procedure did not exist in South Africa. However he also said (1559F-G):
“If these proceedings were stayed in favour of the more appropriate forum in South Africa the probability is that the Plaintiffs would have no means of obtaining professional representation and the expert evidence which would be essential if these claims were to be justly decided. This would amount to a denial of justice. In the special and unusual circumstances of these proceedings, lack of the means, in South Africa, to prosecute these claims to a conclusion provides a compelling ground, at the second stage of the Spiliada test, for refusing to stay the proceedings here.”

Conclusion on the Third Issue

[70]I have reviewed the factors which I consider to be relevant to my decision. I have made findings of fact and referred to the leading authorities. I remind myself of the caution which the court must exercise having regard to Lord Goff’s speech in Spiliada at pages 480-481 and particularly that the burden of proof rests on the Claimants to persuade the court that England is the appropriate forum for the trial of the action and they have to show that this is clearly so.[71]I have come to the conclusion that there are, in this case, circumstances by reason of which justice requires that a stay should not be granted. I am persuaded that it is clearly the case that England is the appropriate forum for the trial of this action. I have had regard to the interests of all the parties and the ends of justice. I have taken into account the fact that there are factors in favour of a trial in India, including that Indian law is the applicable law, that the breach of duty has to be tested against local standards in India and the fact that there will be certain evidential difficulties for the Defendants if the case proceeds in England. I have noted and taken account of the fact that the Defendants have sought to smooth the path of the Claimants bringing proceedings in India by(i) stating that they will not raise any limitation defence in any proceedings brought in India,(ii) offering the undertaking to pay the Claimants’ reasonable costs if they succeed in India and(iii) expressing a willingness to cooperate in trying to move the proceedings in India along as quickly as possible. Finally I have taken into account the matters in Mr Goel’s statement. Nevertheless, in the balancing exercise I come down firmly in favour of the Claimants because, in my judgment, the Claimants have clearly demonstrated and proved that granting a stay in English proceedings and requiring proceedings to be commenced in India would amount to a denial of justice. If proceedings are commenced in India then the delay which I have found would result cannot possibly be said to be proper access to justice. This factor alone I regard as sufficient. However it is given extra force by my finding that the Claimants will not even get that far because of their inability to litigate in India through lack of funding. In short, the reality is that their claims would come to a juddering halt if the stay was granted. Even if that were not so, they would be pending for some 15 to 20 further years in the Bombay High Court. I exercise my discretion in their favour for those reasons.

Footnote

[72]In this judgment I have overwhelmingly dealt with the Claimants as if they were one. Many of the considerations apply particularly to the First Claimant because of the seriousness of his injuries relative to those of the Second Claimant. However, neither party at any stage during the hearing sought to persuade me that I should deal with their claims individually as far as any of the issues were concerned.[73]Finally, both names of the city Mumbai/Bombay were used interchangeably by the parties and by the Indian legal experts. That is the reason why they also both appear in this form in this judgment.

Cited in 7 later judgments