BB & Ors v Al Khayyat & Ors

On a forum non conveniens application, the court must assess the suitability and risks of the alternative forum without conducting a mini-trial of the underlying claim. The issues in dispute should generally be addressed through written evidence, and cross-examination is exceptional. The court needs sufficient pleaded detail to understand the nature and scope of the underlying allegations, but extensive evidence about their truth is ordinarily unnecessary. Evidence directly bearing on alleged interference with the proceedings may remain relevant to the fairness of the alternative forum. Open justice is the general rule, and reputational harm will justify a private hearing only where it outweighs the constitutional importance of public hearings and the rights protected by Article 10 ECHR.

The claim concerned alleged terrorist financing and related losses suffered in Syria. Doha Bank applied for a stay on forum non conveniens grounds, contending that Qatar was the more appropriate forum. The claimants alleged that a fair trial in Qatar would be impossible because of connections between the defendants, the Qatari state and alleged interference with the proceedings.

The judgment determined three interlocutory applications: whether to cross-examine the Al Khayyat brothers and a Qatari legal expert at the stay hearing; whether parts of the claimants’ evidence should be struck out or excluded; and whether four claimants could discontinue with no order as to costs. The court also refused an application for the hearing to be held in private.

1. Cross-examination. The applications to cross-examine the Al Khayyat brothers and Dr El Shazly were refused. A forum non conveniens hearing is not a trial of the substantive claim. Cross-examination concerning alleged terrorist financing would amount to a deposition before service of a defence, disclosure and complete evidence, and would turn the hearing into a mini-trial. Cross-examination of the expert would similarly transform the stay hearing into a trial of Qatar’s suitability as an alternative forum. The approach in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, Deripaska v Cherney [2009] EWCA Civ 849 and Stokoe Partnership Solicitors v Grayson [2021] EWCA Civ 626 supported determination on the papers.
2. Evidence. The court should understand the scope and nature of the underlying allegations, but need not determine their truth. That understanding could be obtained from amended pleadings. Evidence directly concerning alleged interference with the proceedings was relevant to the suitability of Qatar and could be relied upon. Doha Bank’s application to exclude evidence therefore succeeded in principle, with precise passages to be identified after further submissions.
3. Discontinuance. The oral application by four claimants to withdraw with no order as to costs was refused. Formal notices and any application concerning costs were required, and the issue could properly be determined at the end of the stay hearing.
4. Open justice. The application for a private hearing was refused. Civil Procedure Rules 1998, rule 39.2 establishes a general rule of public hearings. Reputational interests protected by Articles 8 and 10 ECHR required balancing, but the open justice principle prevailed on these facts. The reported proceedings, legal representatives’ professional obligations and the protection for fair and accurate reports under Schedule 1, paragraph 2 of the Defamation Act 1996 limited the additional reputational risk.