BB Energy (Gulf) DMCC v Al Amoudi & Ors

A court should not stay proceedings in favour of foreign insolvency proceedings merely because overlapping allegations may be considered abroad. Personal claims against company directors remain analytically distinct from the company’s liability and do not inherently interfere with its liquidation. A stay on forum non conveniens grounds requires proof that the foreign court is an available forum for the claims actually brought. Proceedings within the Brussels regime against a defendant domiciled in England cannot be stayed on forum non conveniens grounds. Questions concerning the viability of a claim, title to sue, or the claimant’s loss ordinarily belong to the merits rather than a stay application.

The claimant, a Dubai company and creditor of a Moroccan company in liquidation, brought tort claims against four former directors. It alleged mismanagement contrary to Moroccan law, deceit, and unlawful means conspiracy arising from continued trading when the company was allegedly unable to meet its obligations.

The defendants sought a stay on forum non conveniens, lis alibi pendens, Brussels Regulation provisions concerning related proceedings, and case management grounds pending possible extension of the Moroccan liquidation to them under Moroccan law. The central issues were whether Morocco was an available and appropriate forum, whether the Moroccan liquidation justified a stay, and whether the claimant’s Article 352 claim should be determined before the application.

1. The stay application was dismissed. The claims asserted personal liabilities owed by the defendants to the claimant. They were distinct from SAMIR’s liability to the claimant, although any recovery against SAMIR would reduce recoverable loss.
2. Article 34 of the Brussels Regulation (recast) did not apply because the Moroccan proceedings were insolvency proceedings outside its scope. Under Owusu v Jackson [2005] QB 801 (Case C-281/02), proceedings within the Brussels regime against a defendant domiciled here could not be stayed on forum non conveniens grounds. The defendants had not proved that Morocco was an available forum for the claims brought in England.
3. The possible extension of SAMIR’s liquidation to the defendants under Article 706 did not justify a stay. The pursuit of personal claims against directors was not inherently inconsistent with an orderly liquidation. Any interaction arising at the enforcement stage could be addressed after judgment.
4. Issues concerning whether Article 352 supplied a viable claim, whether the claimant had title to sue, and whether it had suffered a personal and distinct loss were merits issues. If the Article 352 claim were not arguable, the appropriate course would be strike-out or ordinary case management, not a stay.
5. A temporary stay pending a Moroccan decision was also refused. The possible future decision was uncertain and might have no effect on the English proceedings. Pausing the proceedings indefinitely would create definite unfairness.
6. For completeness, the third defendant was domiciled in England under Article 62 and paragraph 9 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001. Residence was a matter of fact and degree, and a person could reside in more than one jurisdiction. The evidence established residence and a substantial connection with England.
7. The court criticised both parties’ failure to obtain permission and case management directions for foreign-law expert evidence. Permission was granted retrospectively for the reports used on the application only. The material was not to be treated as the expert evidence for trial.