Mousavi-Khalkali v Abrishamchi & Anor

The Court of Appeal held that the mere fact of dual nationality and adverse Foreign and Commonwealth Office travel advice does not automatically establish a real risk that substantial justice will not be obtainable in the foreign forum; the claimant must demonstrate well-founded reasons why he would not travel to litigate, and an appellate court will be slow to interfere with detailed first-instance fact findings on that question.

The appellant, a British–Iranian dual national, appealed against a High Court decision that Iran was the natural forum for his commercial claims and that there was no real risk he would not obtain substantial justice there. The Judge had also set aside a worldwide freezing order and ordered interim payment on account of the respondents' costs. The appeal raised (i) whether FCO travel advice and the claimant's dual nationality meant he would not travel to Iran to litigate, thus risking denial of substantial justice; and (ii) whether the interim payment on account of costs was excessive. The Court of Appeal reviewed the factual findings, assessed fresh evidence about the appellant's travels, and considered authorities on forum non conveniens, risk of denial of justice, and costs on account.

Held (1) Jurisdictional issue and risk of substantial injustice

1. The appeal on the jurisdiction point is dismissed. The Court endorsed the Judge's overall conclusion that there was no real risk the appellant would not obtain substantial justice in Iran, noting that the central question is whether cogent evidence demonstrates a real risk that justice will be denied in the foreign forum ([53]).
2. The Court emphasised that where the alleged risk is the claimant's unwillingness to travel, the claimant must show well-founded reasons for not going; the Judge was entitled to find the appellant had not presented such a case and that his factual findings (including weight to be given to the appellant's asserted connections with Iran and his failure of disclosure) were open to him on the evidence ([55], [63]–[66]).
3. The Court further held that subsequent FCO updates did not materially alter the factual assessment; the appellant's post-advice travel to Iran (November 2019–early 2020) undermined the contention he would not travel to litigate, and the fresh evidence would not have materially affected the outcome ([67]–[69]).

Held (2) Costs on account

4. On the costs appeal, the Court upheld the Judge's approach to fixing an interim payment on account. The Judge's exercise — estimating likely recoverable costs and applying a substantial discount — fell within the generous ambit of judicial discretion and did not justify interference ([71]–[81]).
5. The result was that both aspects of the appeal were dismissed and the first-instance orders (dismissal, setting aside service out and WFO, and costs directions including the interim payment) were affirmed ([82]–[84]).

• High Court (Business & Property Courts, Manchester): HHJ Eyre QC decided England was not the natural forum for the appellant's claims, concluded there was no real risk of denial of substantial justice in Iran, set aside permission to serve out, dismissed the claim, discharged the WFO and ordered costs and an interim payment (order dated 26 September 2019).
• Court of Appeal (Civil Division): This court dismissed the appellant's appeals against those orders and upheld the Judge's exercise of discretion on costs ([2020] EWCA Civ 1493).