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

A stay imposed because Ethiopia was the natural forum should be lifted only where cogent evidence, assessed on the balance of probabilities, establishes a real risk that the claimant will not receive a fair trial in the foreign proceedings. The English court does not sit as an appellate court over the foreign courts, and adverse factual or legal conclusions, without more, do not establish unfairness. A foreign court’s strict and sustainable interpretation of a time limit for review is not cogent evidence of a denial of justice. Relief from an obligation to pay a court-ordered sum requires full disclosure of assets and liabilities, including reasonable attempts to obtain funding. Non-compliance with a substantial costs-payment order will not ordinarily attract relief where the default remains unexplained and disclosure is inadequate.

The claimants sought damages concerning the alleged wrongful acquisition of their interests in Ethiopian businesses. In an earlier judgment, the court rejected their general allegations of unfairness but stayed the English proceedings, allowing them to seek review in Ethiopia on two specific matters: an inventory of machinery and the involvement of a judge connected with a defendant’s chief executive.

The Ethiopian review application was dismissed by the Tigray Supreme Court and the appeal was dismissed by the Cassation Division of the Federal Supreme Court. The claimants applied to lift the stay, for relief from a £200,000 costs payment, and raised alleged set-offs. The court had to decide whether the Ethiopian proceedings supplied cogent evidence of an unfair trial and whether the costs order should be enforced.

1. Stay. The application to lift the stay was refused. The claimants had to establish, on the balance of probabilities and by cogent evidence, a real risk that they had not obtained, or would not obtain, a fair trial. The court’s task was not to hear an appeal from the Ethiopian courts or to revisit issues already decided.

2. The Ethiopian courts’ rejection of the review application did not itself demonstrate injustice. Their conclusion that the one-month period in article 6 of the Ethiopian Civil Procedure Code was strict was legally sustainable. The court did not accept that the decision supplied cogent evidence of bias or unfairness. The factual errors or differences of view identified in the Cassation decision were insufficient to convert an arguable judicial error into a denial of a fair trial.

3. The court also rejected the argument that the Fissehaye decision created a general power to extend the statutory time limit. The expert evidence relied upon it only supported a tentative possibility, and the meaning of article 6 was ultimately a matter for the Ethiopian courts.

4. Costs payment and relief. Relief from the obligation to pay £200,000 was refused. A party seeking such relief must show that payment is impossible having regard to assets, fully disclose assets and liabilities, and demonstrate reasonable attempts to obtain loans from commercial lenders, friends or relatives. The claimant’s piecemeal and inadequate disclosure failed that requirement.

5. Relief from sanctions under [2013] EWCA Civ 15378 and [2014] EWCA Civ 906 was also refused. The default was serious or significant; its cause was unexplained; and the circumstances, including the need for efficient and proportionate litigation and compliance with court orders, made relief unjust.

6. The alleged set-offs were factually disputed, legally complex and insufficiently argued. They did not justify withholding payment. The defendants’ application to dismiss the action in its entirety was granted.

• High Court (Chancery Division): In the earlier judgment, [2013] EWHC 599 (Ch), the court stayed the claim and permitted review applications in Ethiopia on limited grounds. In the present judgment, the stay was not lifted and the action was dismissed.