MacDermid Offshore Solutions Llc v Niche Products Ltd

In a case involving parallel foreign proceedings, the existence of an earlier foreign action is a factor in the forum non conveniens assessment. It is not automatically decisive and does not create a separate, rigid test. The court must ask whether the foreign jurisdiction is clearly or distinctly more appropriate for the interests of all parties and the ends of justice. The stage reached by the foreign proceedings may affect the weight given to them. Where the foreign jurisdiction is clearly more appropriate independently of the earlier proceedings, special circumstances may be required before refusing a stay. Case-management considerations, including delay, cost and the risk of inconsistent judgments, remain matters for the court’s discretion.

MacDermid appealed from the Patents County Court’s refusal to stay Niche’s English proceedings in favour of parallel proceedings brought by MacDermid in Texas. The English claim concerned malicious falsehood, copyright infringement and breach of confidence. The Texas proceedings concerned alleged false and misleading advertising. The appeal challenged the legal approach to forum non conveniens, the finding that England was the more appropriate forum, and the refusal of a stay on case-management grounds.

The central issues were whether the earlier Texas proceedings triggered a distinct rule requiring Niche to show a substantial personal or juridical advantage available only in England, and whether the English proceedings should nevertheless be stayed to avoid duplication and delay.

1. Forum non conveniens. The appeal court upheld the Judge’s formulation that a stay should ordinarily be granted only where the foreign jurisdiction is clearly more appropriate for resolving the dispute. The approach derives from Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and applies also where foreign proceedings are already pending.
2. The existence of prior foreign proceedings is relevant but not automatically decisive. Their relevance and weight depend on the circumstances, including the stage reached and their impact on the dispute. Proceedings may initially be irrelevant, but may later become a powerful or decisive factor.
3. The passage in The Abidin Daver [1984] 1 AC 398 concerning a personal or juridical advantage was not a free-standing or prescriptive rule applicable whenever the foreign court was merely suitable. It had to be read consistently with the development of the law in Spiliada Maritime Corp v Cansulex Ltd and De Dampierre v De Dampierre [1988] AC 92.
4. On the facts, the Judge was entitled to find that England was the more appropriate forum, even after giving proper weight to the earlier Texas proceedings. The appeal court would have reached the same conclusion.
5. Case management. The Judge was entitled to refuse a stay because the English claim could be tried promptly and economically in the Patents County Court, whereas a stay would cause substantial delay. The possibility of inconsistent judgments and the advantage to MacDermid of a decision in Texas did not justify disturbing that discretionary assessment. A possible later defamation claim did not require transfer of the existing proceedings.

All three grounds of appeal failed. MacDermid’s appeal was dismissed.

• Patents County Court: HH Judge Birss QC dismissed MacDermid’s application to stay the English proceedings in favour of the Texas proceedings in a judgment handed down on 7 March 2013.
• High Court (Chancery Division): The appeal was dismissed. The Court upheld the Judge’s approach to forum non conveniens, his assessment of the competing forums and his case-management decision.