B.A.T. Industries Plc v Windward Prospects Ltd & Anor

On an application to serve proceedings out of the jurisdiction, the claimant must show clearly and distinctly that England is the appropriate forum for the trial. The court asks one overall question, considering all relevant circumstances and connecting factors. The forum with the closest connection is not necessarily the forum best serving the parties and the ends of justice.

The ability to determine related claims against all necessary defendants in one forum may carry decisive weight. In particular, the risk of expensive parallel proceedings and inconsistent decisions can outweigh stronger foreign connecting factors. The court may also consider enforceability, the financial position of defendants, their control of related litigation and whether the proposed foreign forum would accept jurisdiction over all relevant parties.

B.A.T. Industries plc brought claims against Windward Prospects Limited and Appleton Papers Inc for contractual indemnities, estoppel-based relief and restitution or subrogation arising from liabilities connected with contamination of the Fox River in Wisconsin.

Permission had previously been granted to serve Appleton Papers Inc outside the jurisdiction. Appleton applied to set that order aside, contending that New York was the proper forum. Windward was domiciled in England and would not voluntarily submit to New York jurisdiction. The central issue was whether England had been shown clearly and distinctly to be the appropriate forum for the claim against Appleton.

1. Application dismissed. The claimant established that England was clearly and distinctly the appropriate forum for the claim against Appleton Papers Inc.
2. In a service-out case, the burden lies on the claimant to show that England is clearly and distinctly the appropriate forum. The court must identify the forum in which the case can most suitably be tried in the interests of the parties and the ends of justice. The correct approach is to answer that overall question directly, rather than applying a preliminary natural-forum test followed by a separate interests-of-justice inquiry. This approach was derived from Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 and applied in VTB Capital Plc v Nutritek International Corporation [2013] 2 WLR 398.
3. Connecting factors remain relevant, but the forum with the closest connection is not necessarily the forum best serving justice. Relevant matters included the English governing law and performance of the principal agreement, the location of evidence, the parties’ domicile, the risk that the foreign court would not accept jurisdiction over Windward, and the enforceability of any foreign judgment.
4. Although the New York and wider United States factors were substantial, the claims against Windward and Appleton were closely related and involved heavy litigation. England was the manifestly appropriate forum for the claim against Windward. Windward was the ultimate paymaster and had contractual control over related litigation. Requiring the claimant to sue Windward in England and Appleton in New York would create substantial duplication, expense and a serious risk of inconsistent decisions. Those considerations decisively outweighed the hardship to Appleton of being sued in England.