Akyuz v Akyuz & Anor

Where proceedings in England and another country concern related questions, a stay is not justified merely because the foreign court is concerned with the deceased’s estate or inheritance. The court must identify the relief sought in each jurisdiction and apply the Spiliada test.

A foreign forum is more appropriate only if the case can be tried there more suitably for the parties and the ends of justice. A stay should not be granted where the English court alone can provide important relief, the central witnesses and evidence are more conveniently available in England, and the foreign proceedings may be unable to determine the issue because of limitation. Inconsistent positions adopted by the applicant for a stay in the two jurisdictions may also materially undermine that application.

The applicant sought a declaration under section 55A of the Family Law Act 1986 that the deceased was her genetic father. She had also begun proceedings in Turkey concerning paternity and her claimed entitlement to a share of his estate.

The deceased’s personal representative applied for the English proceedings to be dismissed or stayed. The application relied on the alleged vexatiousness of concurrent litigation and on the principles governing a stay on the ground that Turkey was the more appropriate forum. The central issue was whether the English proceedings should be stayed despite the Turkish proceedings being concerned with related factual matters.

1. The application for a stay was refused. The English proceedings were to continue and directions were to be given for their swift determination.
2. The court accepted the principles in The Abidin Daver [1984] 1 AC 398 and Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460. The first question was whether Turkey was a more appropriate forum. If so, the proceedings should be stayed unless the applicant showed circumstances making a stay contrary to the interests of justice.
3. Turkey alone could determine the distribution of the deceased’s estate. However, only the courts of England and Wales could grant the statutory declaration of parentage sought under section 55A of the Family Law Act 1986. That declaration was also necessary for the applicant to seek re-registration of her birth in England.
4. The English and Turkish proceedings therefore did not seek the same relief. The English proceedings served an important purpose which the Turkish proceedings could not achieve. The estate’s position that the paternity issue should be decided in Turkey was also difficult to reconcile with its simultaneous contention in Turkey that the claim was time-barred and could not be determined there.
5. The balance of convenience did not favour Turkey. The principal living witness was the applicant’s mother, who lived in England and could not realistically travel to Turkey. The applicant was also in England. The DNA testing had been undertaken in England, and any issue about the reliability of the samples or reports could be investigated there.
6. England was distinctly the more appropriate forum for deciding the discrete question whether the deceased was the applicant’s genetic or biological father. The Turkish courts would determine separately whether, and to what extent, to recognise or use the English decision.