Ahmed & Anor v Ali Khalifa

On an application based on forum non conveniens, the defendant must show that the foreign forum is clearly or distinctly more appropriate. The court assesses the dispute’s real and substantial connections, including the parties, witnesses, documents, applicable law, convenience and expense. Where service was as of right, the burden remains on the defendant to establish that threshold.

Differences between English and foreign civil procedure do not ordinarily justify refusing a stay. A party resisting a stay on grounds of possible injustice abroad must produce cogent evidence of a real risk that justice will not be obtained, through incompetence, lack of independence, corruption or comparable circumstances. Generalised assertions, procedural differences and subjective fears are insufficient.

The claimants sought approximately US$42.5 million under alleged oral agency agreements concerning introductions to Bollywood film stars, together with a further claim relating to sponsorship of a Dubai film festival. The defendant, a Bahraini national and member of Bahrain’s Royal family, applied to stay the English proceedings in favour of Bahrain.

The alleged negotiations and performance were centred principally on Bahrain, Dubai and India. The defendant was served in England as of right. The central questions were whether Bahrain was clearly the more appropriate forum and whether there was a real risk that the claimants would not receive a fair trial there because of the defendant’s status and alleged weaknesses in the Bahraini judiciary and procedure.

The application for a stay was dismissed and the proceedings were permitted to continue in England.

1. Applying Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, the defendant had to show that Bahrain was clearly the more appropriate forum. If that threshold were met, the burden would shift to the claimants to establish special circumstances making it unjust to stay the English proceedings.
2. The dispute had connections with Bahrain, Dubai, India and England. Bahrain had important connections through the defendant, the initial discussions, the notarial instruments and several witnesses. England had connections through service, the defendant’s visits and an alleged telephone acceptance. Considering the overall circumstances, Bahrain was not clearly and distinctly the more appropriate forum.
3. Differences in delay, disclosure, cross-examination, the decisive oath and recoverable costs did not establish forum inadequacy or injustice. The court could not ordinarily compare civil-law and common-law procedures, absent a demonstrated risk of injustice.
4. The claimants also failed on the alternative argument concerning judicial independence. A real risk that justice would not be obtained abroad had to be supported by cogent evidence. Generalised expert opinion, reports concerning political proceedings and the defendant’s royal connections did not establish such a risk in Bahrain’s civil and commercial courts.
5. The alleged threats and harassment did not alter the result. The court could not make findings on the allegations, and there was no cogent evidence that the Bahraini courts could not address intimidation connected with litigation. Costs were to follow the event, subject to consequential directions.