Irving & Anor v Darbyshire & Ors

An English court may stay proceedings for forum non conveniens where the defendant establishes that another competent court is clearly or distinctly more appropriate and the claimant will not suffer injustice by being required to proceed there.

The court must assess the dispute as a whole. Relevant considerations include the legal and factual centre of gravity, the governing law, the location of the underlying events and parties, and practical enforcement issues. A settlement meeting in England, English participants and an English source of funds may carry only modest weight. Difficulties concerning representation or funding do not establish injustice without evidence that they prevent proceedings in the alternative forum.

The claimants had brought defamation and malicious falsehood proceedings against the defendants in the Isle of Man. Those proceedings were settled by a Tomlin Order sealed by the High Court of Justice of the Isle of Man. A dispute then arose concerning payment of the settlement monies after the Isle of Man Coroner issued notices of arrest in respect of the claimants’ debts.

The claimants commenced proceedings in the Manchester District Registry to recover the outstanding sum. The defendants applied under CPR 11(1) and CPR 11(6) for a stay on the ground of forum non conveniens. The issue was whether the Isle of Man was clearly or distinctly the more appropriate forum and, if so, whether it would be unjust to deprive the claimants of a trial in England.

1. Stay granted. The defendants established that the Isle of Man was clearly and distinctly the more appropriate forum for determining the claim. The proceedings were therefore stayed pursuant to CPR 11.
2. The court applied the two-stage test stated in rule 38 of Dicey, Morris and Collins, The Conflict of Laws: the defendant must show another competent court which is clearly or distinctly more appropriate, and the claimant must not be unjustly deprived of trial in England.
3. The dispute had substantial connections with the Isle of Man. The original cause of action, proceedings and settlement order were connected with that jurisdiction. The legality of the Coroner’s actions and significant parts of the dispute would involve Manx law. The parties were domiciled or habitually resident there, and any English judgment would require enforcement there.
4. The mediation’s location in England was merely a matter of logistical convenience. The English participants, the location of the defendants’ parent company and the proposed source of payment carried modest weight. The claimants’ request for payment into an English bank account was unilateral and formed no part of the agreement.
5. The claimants had not shown injustice. Although their disputes with Isle of Man public officials created understandable concerns, they accepted that the Isle of Man judiciary was independent. The difficulties concerning representation and funding were burdensome, but there was no evidence that they prevented the claim from proceeding in the Isle of Man.

The judgment was a first-instance determination of the defendants’ application for a stay. The judgment describes earlier settlement proceedings and related applications in the Isle of Man, but records no appellate decision.