Nimer v United Al Saqer Group LLC & Ors

On a forum non conveniens application, the claimant must show both that the natural foreign forum will probably not be used for well-founded reasons and that there is a real risk of an unfair trial there. The latter requires objective, positive and cogent evidence. General allegations concerning the influence of powerful defendants, unsupported assertions and unresolved factual disputes will not ordinarily suffice. A jurisdiction application should not become a mini-trial. Where the foreign forum has the closest and most substantial connection with the dispute, and the claimant does not establish the required special circumstances, the English proceedings should be stayed and permission for service out set aside.

The claimant, a former chief executive of an Abu Dhabi company, brought contractual and related claims against six defendants arising from the termination of his employment. The fifth defendant was served in England. Permission was then granted to serve the other defendants in the UAE as necessary and proper parties.

The fifth defendant applied for a stay, and the other defendants applied to set aside permission for service out, relying on forum non conveniens. The parties agreed that Abu Dhabi was the natural forum and that the first two jurisdictional questions identified in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd were satisfied. The central issue was whether the claimant had well-founded reasons not to litigate in Abu Dhabi and had shown a real risk that he would not receive a fair trial there.

1. Applications allowed. The claim against the fifth defendant was stayed. The order permitting service out on the remaining defendants was set aside, and the court declared that it should not exercise any jurisdiction it might have over them.
2. The applicable framework was that identified in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd: whether there was a serious issue to be tried, a good arguable case within a service-out gateway, and whether England was clearly or distinctly the appropriate forum. Only the third issue was disputed.
3. Following Spiliada Maritime Corp v Cansulex Ltd and Cherney v Deripaska, the court first identified the natural forum and then considered whether special circumstances by reason of justice required trial in England. Abu Dhabi was overwhelmingly the natural forum because the witnesses and events were there, the contract was governed by Abu Dhabi law, and Arabic-language evidence was central.
4. The claimant failed to establish either standard. The evidence did not objectively demonstrate well-founded reasons to avoid Abu Dhabi or a real risk of an unfair trial. His evidence was in important respects unreliable or unsupported. The specific examples relied upon did not disclose the recognised indicators of improper judicial influence, and the UAE system was generally robust and independent.
5. Numerous disputed factual issues could not properly be resolved on an interlocutory application. They were relevant, at most, to the claimant’s subjective state of mind and did not establish a real risk. The application should not become a mini-trial.
6. The alleged threat of prosecution for forgery was also insufficient. The uncontested expert evidence indicated that the complaint was time-barred under Article 20 of the UAE Penal Procedures Law, and the suggestion that the defendants could procure disregard of the relevant safeguards was farfetched.
7. The claimant’s application to cross-examine witnesses was refused. Cross-examination on forum is unusual, conflicts in written evidence are not enough, the application was late, and allowing it would have caused delay, wasted costs and intrusion into matters for the trial judge.

Not an appeal. The judgment determined applications concerning a stay and service out of the jurisdiction.