Mousavi-Khalkali v Abrishamchi & Anor

Where a foreign forum is the natural and appropriate forum, the English court may nevertheless permit service out if cogent evidence shows a real risk that substantial justice will not be available there. Where the alleged obstacle is the claimant’s unwillingness to travel, the claimant must show well-founded reasons for not going. Official travel warnings and dual nationality are relevant, but they do not automatically establish that risk. The court must assess the evidence in context, including the claimant’s connections and conduct. An appellate court should not revisit a first-instance evaluation merely because it might have reached another view. For a payment on account of costs, the court should estimate likely recovery on detailed assessment and allow a margin for error.

The appellant brought claims against Iranian defendants arising from a telecommunications project and related arbitration. The High Court found Iran to be the natural and appropriate forum, held that substantial justice would be available there, and set aside permission to serve out, the worldwide freezing order and the claim. It ordered an interim payment of £325,000 on account of costs.

The appellant challenged the findings concerning dual nationality, Foreign and Commonwealth Office travel advice and the risk of detention or unwillingness to travel. He also challenged the costs order and sought to rely on fresh evidence and later travel advice.

Disposition. The Court of Appeal dismissed both the Jurisdiction Appeal and the Costs Appeal.

1. Jurisdiction. The principles in Lungowe v Vedanta Resources plc [2019] UKSC 20 and Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 180 required a separate assessment of whether there was a real risk that substantial justice would not be obtained in Iran. Under Cherney v Deripaska (No. 2) [2009] EWCA Civ 849, where the alleged risk depended on the claimant’s unwillingness to travel, he had to show well-founded reasons for not going.
2. The appellant had not presented unwillingness to travel as an issue before the Judge. The Judge therefore correctly addressed the alleged risk of arbitrary detention. Even if unwillingness had been asserted, the appellant’s extensive Iranian connections, wife, home, investments, business interests and repeated travel to Iran meant that such an assertion would properly have been rejected. The FCO advice did not, in this private commercial dispute, establish a real risk that substantial justice would be unavailable. The fresh evidence showed that the appellant had travelled to Iran and remained there for more than three months after the relevant advice. The further evidence and proposed ground were therefore not admitted because they would not materially affect the outcome and the appellant’s assertion was not credible. The non-disclosure issue did not require determination.
3. Costs. Rule 44.2(8) of the Civil Procedure Rules 1998 required a reasonable sum on account of costs unless there was good reason otherwise. Applying Excalibur Ventures LLC v Texas Keystone Inc. [2015] EWHC 566 (Comm), with the approach endorsed in Dana Gas v Dana Gas Sudek [2018] EWHC 332 (Comm), the court should estimate likely recovery on detailed assessment and apply a margin for error. The Judge’s estimate of £450,000 and payment on account of £325,000 were within the generous ambit of discretion identified in Tanfern v Cameron Macdonald [2000] 1 WLR 1311.

• Court of Appeal (Civil Division) — In [2020] EWCA Civ 1493, dismissed both appeals.
• High Court of Justice, Business and Property Courts in Manchester — His Honour Judge Eyre QC, sitting as a judge of the High Court, found Iran to be the natural and appropriate forum, held that substantial justice would be available there, set aside permission to serve out and the worldwide freezing order, dismissed the claim, and ordered £325,000 on account of costs.