Mujur Bakat SDN BHD & Anor v Uni. Asia General Insurance Berhad & Ors

On an application to serve proceedings out of the jurisdiction, the claimant must show clearly that England and Wales is the proper place for the claim. The court applies the Spiliada principles and identifies the forum with the most real and substantial connection, having regard to convenience, expense, witnesses, documents and the governing law.

An express choice of English law is relevant but is not necessarily predominant. Its weight depends on the issues likely to arise at trial. Where those issues are straightforward and the foreign court is likely to apply the chosen law, the choice of English law may carry little weight.

The Malaysian owners and managers of a vessel claimed under a marine insurance policy underwritten by seven Malaysian insurers. The policy incorporated Institute Time Clauses Hulls 01/10/83 and was subject to English law and practice. Flaux J granted permission to serve the claim form out of the jurisdiction.

The defendants applied to set that order aside. The claimants relied on the governing-law clause and initially on an alleged jurisdiction clause, but abandoned the latter point. The issues likely to arise concerned warranties relating to vessel registration, maintenance and management, and sue and labour. The central question was whether England was the proper place for trial.

1. Disposition. The order permitting service out of the jurisdiction was set aside. The parties were invited to agree and draw up the appropriate order.
2. Applicable test. Under CPR rule 6.37(3), permission could be granted only if England and Wales was the proper place in which to bring the claim. Applying Spiliada v Cansulex [1987] 1 AC 460, the claimants bore the burden of showing clearly that England was the most appropriate forum. The relevant forum was the one in which the case could suitably be tried in the interests of all parties and for the ends of justice.
3. Connecting factors. The parties, businesses, documents and likely witnesses were principally in Malaysia, Singapore or nearby jurisdictions. The relevant factual issues concerned the vessel’s condition and compliance with warranties. Those matters made it impossible to regard England as the natural or most appropriate forum.
4. Choice of law. The choice of English law was relevant but not necessarily predominant. Its weight varied according to the circumstances. The Malaysian court was likely to apply English law where the parties had expressly chosen it. In any event, the remaining issues were relatively straightforward and involved no novel, complex or undecided questions of English law. The governing-law clause therefore carried little weight.
5. The claimants’ general concerns about impartiality and corruption in Malaysia were unsupported by sufficient evidence and did not justify concluding that the Malaysian court could not provide a fair trial.