Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray & Ors

On an application concerning forum non conveniens, the claimant need not prove on the balance of probabilities that a foreign trial will be unfair. The claimant must provide cogent evidence establishing a real risk that justice will not be obtained in the foreign jurisdiction. The assessment is fact-sensitive and primarily for the first-instance judge. Generalised, untested reports and disagreement with foreign decisions ordinarily do not meet that threshold. Where the natural forum is abroad, a stay may be granted while allowing the claimant to return if later events provide cogent evidence of unfairness. Applications for permission to serve out should not be determined prematurely where the foreign proceedings may resolve the dispute.

The claimants alleged that the defendants had fraudulently appropriated their interest in an Ethiopian pharmaceutical business and had obtained Ethiopian judgments through perjury and other wrongful conduct. The underlying dispute, parties, assets, governing law and relevant events were connected with Ethiopia. The defendants applied for a stay on forum non conveniens grounds. The claimants also sought permission to serve the second and third defendants out of the jurisdiction.

The claimants relied on alleged defects in the Ethiopian proceedings, the role of a judge connected with a defendant’s senior officer, newly discovered evidence concerning an inventory, and general material about the Ethiopian justice system. The central issue was whether there was cogent evidence of a real risk that the claimants would not receive a fair trial in Ethiopia.

1. Stay granted. Ethiopia was overwhelmingly the natural forum. The parties accepted that the dispute was governed by Ethiopian law and that the relevant parties, assets and events were located there.
2. The applicable threshold was whether the claimants had shown, by cogent evidence, a real risk that justice would not be obtained in Ethiopia. They did not have to prove unfairness on the balance of probabilities. The evaluation was fact-sensitive and was principally a matter for the first-instance judge.
3. The claimants’ criticisms of the prior Ethiopian proceedings did not provide cogent evidence of systemic or case-specific unfairness. The Ethiopian judgments were reasoned, and disagreement with their conclusions did not justify treating the Ethiopian courts as biased.
4. The inventory evidence had not been tested in Ethiopia and was not sufficiently cogent. The claimants should first seek a review under Articles 5 and 6 of the Civil Procedure Code of the Empire of Ethiopia 1965. The court considered that the Fissehaye decision indicated a possible flexibility in the Cassation Court’s approach, although it was uncertain whether the 30-day limit could be extended.
5. The involvement of Judge Mehretab, who was married to a senior officer of a defendant, raised a legitimate concern about the appearance of justice. That issue also had not been raised before the Ethiopian courts and should be pursued there through a review application.
6. General reports and untested expert material concerning Ethiopia did not establish the required real risk. The court declined to assess the correctness of the Ethiopian judgments as if exercising appellate jurisdiction over them.
7. The stay could be lifted if the claimants’ treatment in Ethiopia produced cogent evidence of unfairness. Permission to serve out was declined at that stage under CPR 6.36 because the application was premature and England was not presently the proper forum.

Not stated in the judgment.