Traxys Europe SA v Sodexmines Nigeria Ltd

Where permission was required to serve a defendant out of the jurisdiction, the claimant bears the burden of showing that England is clearly the forum in which the claim can be tried more suitably for the parties and the ends of justice. The court looks to the substance of the jurisdictional position, not merely the form of the application as a stay.

For tort claims, the place of commission is a relevant starting point, but it is not a presumption or trump card. The court must weigh all material connecting factors, including the location of witnesses, applicable law, related proceedings and the risk of irreconcilable judgments. That risk is one factor among others and may carry little weight where the anchor claim is unlikely to proceed.

Traxys Europe SA brought claims in contract, deceit, unlawful means conspiracy and procuring or inducing breach of contract arising from the alleged dishonest substitution in Nigeria of worthless material for valuable tin products. The contractual claims against Sodexmines Nigeria Ltd were subject to English law and jurisdiction. The claims against Basem El Ali, alleged to be Sodexmines’ beneficial owner and alter ego, were in tort.

Mr Ali applied for a stay in favour of Nigeria, where the events, most witnesses and related criminal proceedings were located. The central issues were whether the claimant or Mr Ali bore the burden of showing the appropriate forum, and whether England or Nigeria was the forum in which the claim against Mr Ali could be tried more suitably for the interests of the parties and the ends of justice.

1. Burden of proof. The application was treated according to its substance. Mr Ali had required permission for service out of the jurisdiction and had not been entitled to commence proceedings in England as of right. The claimant therefore bore the burden of establishing that England was clearly the forum in which the claim could be tried more suitably for the parties and the ends of justice. This followed the distinction explained in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460.
2. Relevant factors. The alleged torts were principally committed in Nigeria. That was the appropriate starting point, although the place of commission did not create a presumption and had to be weighed with all other factors, following VTB Capital v Nutritek International [2013] 2 AC 337. The Nigerian location of the principal witnesses was a strong connecting factor. Mr Ali’s likely evidence by video link was neutral. The likely application of Nigerian law was also neutral because no material difference between Nigerian and English law had been identified.
3. The risk of inconsistent or irreconcilable judgments was not decisive. It had to be weighed with the other factors, and the court had to consider whether the anchor claim would in fact proceed. Applying Lungowe v Vedanta [2019] 2 WLR 1051 and Erste Group Bank v JSC “JMV Red October” and others [2015] EWCA Civ 379, the court found no real risk of conflicting judgments because the tort claim against Sodexmines was unlikely to proceed in England.
4. The English jurisdiction clause bound Sodexmines, not Mr Ali personally. The English connections relied upon by the claimant lacked sufficient cogency. The centre of gravity and fundamental focus of the litigation were in Nigeria.
5. The stay was granted. The worldwide freezing order remained in force until the claimant could apply for similar relief in Nigeria.