Apollo Ventures Co. Limited v Surinder Singh Manchanda

An application to stay proceedings on forum non conveniens grounds may be permitted out of time even after submission to the jurisdiction. Submission is an important factor, but its weight depends on the circumstances, including progress, costs and prejudice. A material change of circumstances may justify an extension, particularly where proceedings against other defendants have been discontinued and the foreign forum has become clearly and distinctly more appropriate. The Denton approach applies to the extension application. Where a stay is granted, security obtained through English proceedings may ordinarily be maintained if justice requires it and the claimant is pursuing the substantive claim in the foreign forum.

The claimant, a Thai company, alleged that the defendant had procured loans using forged documents and had diverted their proceeds. Proceedings were commenced in England in 2016, together with a worldwide freezing order. The defendant later served a defence, thereby submitting to the jurisdiction. Claims against the other defendants were subsequently struck out, while related proceedings concerning the loans continued in Thailand.

The defendant applied in May 2021 for an extension of time to seek a stay in favour of Thailand and then for the stay itself. The central issues were whether the delay should be excused under the Denton principles and whether Thailand was clearly and distinctly the more appropriate forum.

1. Extension of time. The application was governed by the three-stage Denton approach: seriousness and significance of the breach; the reason for it; and all the circumstances, applying the requirements in Civil Procedure Rules 1998, rules 3(9) and 11(4). The delay after the claims against the other defendants were struck out was serious and significant, and there was no good explanation for it.
2. Submission to the jurisdiction was not an absolute bar to an extension. Its weight depended on the consequences of the submission. Substantial preparation, incurred costs and an imminent trial could justify refusal. Here, the proceedings had not materially advanced towards trial, the claims against the other defendants had been struck out, and Thailand had become a cogent alternative forum. Those circumstances justified extending time despite the delay.
3. Stay. Applying the Spiliada principles, Thailand was clearly and distinctly the more appropriate forum. The relevant factors included the Thai parties and transactions, issues of Thai law, witnesses and related Thai proceedings. The English claim was not close to trial, and the earlier reason for retaining the claim in England—avoiding separate trials involving the other defendants—no longer existed.
4. Freezing order and costs. The worldwide freezing order was maintained. The claimant was pursuing the claim in Thailand, the merits test had previously been held satisfied, and maintaining security was fair and just to prevent dissipation of English assets pending enforcement. The costs of the English claim against the defendant were ordered to lie where they fell.