Rehman v Hamid

In a forum non conveniens application concerning the validity of a will, the defendant must show that the foreign forum is available and clearly or distinctly more appropriate than England. The court assesses connecting factors, including governing law, property, domicile, parties, witnesses, expense and the court first seized. If that threshold is met, the claimant must show circumstances requiring justice to be served in England. A contention that substantial justice will be unavailable abroad requires cogent evidence. A domicile of choice requires residence and an intention of permanent or indefinite residence; prolonged residence alone is insufficient. The English proceedings were stayed pending determination in Pakistan.

The claimant brought contentious probate proceedings in England concerning the validity of a 2017 will made in Pakistan. The defendant, one of the beneficiaries under an earlier 1993 mirror will, and the other beneficiaries had commenced proceedings in Lahore challenging the 2017 will. The claimant sought to continue the English proceedings, while the defendant applied for a stay pending determination in Pakistan.

The central issues were the deceased’s domicile, the validity of the will, the location of the estate’s principal asset, the location of witnesses and medical professionals, and whether substantial justice was available in Pakistan.

1. Stay granted. The English probate proceedings were stayed insofar as they concerned the validity of the 2017 will, pending determination of that issue in Pakistan.
2. The court applied the principles in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (HL). The defendant had to establish an available alternative forum which was clearly or distinctly more appropriate than England. The claimant then had to show circumstances requiring justice to be served in England.
3. England was the natural forum in relation to the English leasehold property and the application of English law. Those factors were outweighed by the deceased’s Pakistani domicile, the location of the material parties and witnesses in Pakistan, the fact that Pakistan was first seized of the dispute and the lower cost of proceedings there.
4. A domicile of choice required residence combined with an intention of permanent or indefinite residence. The claimant did not establish the necessary intention for an English domicile. Alternatively, any English domicile of choice had been abandoned when the deceased returned permanently to Pakistan in 2015.
5. The claimant failed to establish that substantial justice would be unavailable in Pakistan. The evidence criticised the Pakistani legal system without sufficient evidential foundation. The solicitor relied upon was not an expert for the purposes of CPR Part 35.

Not stated in the judgment.