Inter-Tel Inc v Ocis Plc & Anor

On an application for a stay on grounds of forum non conveniens, the defendant must show that another available forum is clearly or distinctly more appropriate. The court considers connecting factors and the interests of justice. A claimant’s juridical advantage is relevant, including the practical enforceability of any judgment. That advantage may outweigh other factors pointing to a foreign forum. Where an injunction would be practically enforceable only in England, the foreign forum may not be available in any meaningful sense, even though it has jurisdiction and is otherwise more closely connected with the dispute.

The claimant, an Arizona corporation, brought proceedings concerning an alleged campaign of harassment by the defendants. The claim relied on the Protection from Harassment Act 1997 and, alternatively, Arizona law. The defendants applied under CPR 11(1)(b) for a stay in favour of Arizona, which they said was the more appropriate forum. The claimant accepted that an Arizona court could hear the dispute but argued that an injunction obtained there could not practically be enforced against the defendants in England. The court also dealt with applications concerning joinder, representative proceedings and continuation of an interim injunction.

1. The application for a stay under CPR 11(1)(b) was dismissed. The court adopted the principles restated in Spiliada Maritime Corporation v Cansulex [1987] AC 460.

2. The defendant bears the initial burden of showing an available forum with competent jurisdiction which is clearly or distinctly more appropriate. Relevant connecting factors include convenience, expense, the applicable law, the parties’ places of residence or business, and the location of witnesses and events. If that burden is met, the claimant may still show circumstances in which justice requires that the stay be refused.

3. Following International Credit & Investment Company (Overseas) Ltd v Sheikh Kamal Adham [1999] I.L.Pr.302, practical enforceability of a judgment is a legitimate juridical advantage. It is not confined to advantages in obtaining judgment; it includes the means by which the claimant can secure the benefit of an injunction or other relief.

4. Although the other connecting factors pointed towards Arizona, the court found enforceability overwhelmingly important. An Arizona judgment would provide no meaningful remedy if an injunction could not be enforced in England and the defendants had not undertaken to submit to effective jurisdiction there. Arizona was therefore not an available forum in the meaningful sense, and the defendants had not established that it was clearly or distinctly more appropriate.

5. The court did not need to determine whether English or Arizona law applied, because the result was unaffected by that issue. The claimant’s other applications were also dealt with, including joinder of Mr Mihaylo, representative-party relief, amendment of the Particulars of Claim and continuation of the interim injunction.