Zambia, Attorney General of Zambia for and On Behalf of v Meer Care & Desai (a firm) & Ors

A stay on forum non conveniens grounds should not fragment closely connected civil proceedings where a single tribunal can determine the dispute more reliably and comprehensively. The court must consider the interests of all parties, including defendants whose evidence is central to claims against other defendants.

Fair-trial concerns arising from concurrent criminal proceedings may be addressed by protective measures, including restrictions on the use of evidence and documents. Practical difficulties concerning attendance, representation and funding do not justify a stay where suitable procedural arrangements are available. A fresh application remains possible if materially different evidence later demonstrates that a fair defence cannot be presented.

The Attorney General of Zambia brought proceedings in England to recover allegedly misappropriated Zambian government funds. The alleged conspiracies involved Zambian defendants, English solicitors and bank accounts in England and elsewhere.

The Third, Sixth, Seventh, Ninth and Eleventh Defendants applied for a stay. They relied on alleged breach of Article 6 of the ECHR, forum non conveniens, and prejudice to their ability to defend criminal proceedings in Zambia. They argued that the dispute should instead be litigated in Zambia because bail conditions restricted their ability to attend and participate in the English proceedings.

The central issue was whether the English proceedings should be stayed or divided between England and Zambia.

1. The applications for a stay were dismissed. The alleged conspiracies were substantially London-focused: the disputed funds were paid into English bank accounts, English solicitors were alleged to have facilitated the transactions, and significant documentary and witness evidence was located in England.

2. The interests of justice strongly favoured determination of the connected disputes by one tribunal. Splitting the claims risked inconsistent findings, delay, inconvenience and wasted costs. The judge applied the reasoning in Aratra Potato Co Ltd v The Egyptian Navigation Co [1981] 2 Lloyds Reports 119 and Donohue v The Armco Inc [2002] 1 Lloyds Reports 45, which emphasised the danger of different tribunals reaching different conclusions on substantially connected international disputes.

3. The defendants’ participation in criminal proceedings could be protected without staying the civil claim. The English proceedings could be conducted in private, with restrictions preventing the use of defence evidence and documents in the criminal proceedings unless authorised by the defendants or the court.

4. Attendance difficulties could be addressed by video-link evidence or by the English court sitting in Zambia to hear evidence. This practical approach was consistent with Peer International Corporation v Termidor Music Publishers Ltd [2005] EWHC 1048 (Ch). A single trial judge hearing the evidence would assist in assessing witness credibility consistently.

5. The asserted additional costs of English proceedings and alleged lack of funds were insufficient on the evidence. The defendants could use Zambian lawyers for preparatory work and obtain English assistance as required. However, if credible new evidence later showed that restrictions prevented a fair defence, a further application could be made.

6. The parties’ agreed costs order was approved in principle: costs in the case, with no order as to costs against the First Defendant. The detailed form of order was left for consideration at the forthcoming case management conference.