The Public Institution for Social Security v Ely Michel Ruimy & Anor.

On an application to stay proceedings on forum non conveniens grounds, the defendant must show that the alternative forum is clearly or distinctly more appropriate. Strong connections with another jurisdiction do not suffice where related English proceedings are well advanced and involve a central protagonist or substantially overlapping issues. Avoiding fragmentation and inconsistent findings may carry very significant weight. The court must assess the claimant’s pleaded case and existing proceedings, without speculating about an undisclosed defence or evidence. A discretionary stay under Article 34 of Regulation (EU) No 1215/2012 requires proceedings to have been pending before a court of a third State when the English court was seised. An administrative debt-enforcement step is not proceedings pending before a court for that purpose.

PIFSS brought claims against Ely Michel Ruimy and Aerium Finance Ltd in connection with alleged secret commissions paid under the Aerium Scheme. The defendants challenged jurisdiction and sought stays of two sets of English proceedings, principally in favour of Switzerland.

The first claim had been consolidated with substantial proceedings against the estate of the alleged recipient of the payments and other defendants. A trial in England was listed, and the issues concerning the payments were already defined. The court was required to decide whether Switzerland was clearly or distinctly the more appropriate forum and whether the first claim should be stayed under Article 34 of Brussels Recast.

1. Forum non conveniens. The applications for a stay were refused. Applying Spiliada Maritime Corporation v Cansulex Ltd, the defendants bore the burden of showing that Switzerland was clearly or distinctly more appropriate than England. They failed to do so.
2. The English proceedings were well advanced and would determine, against the estate of the alleged recipient and another defendant, the nature and purpose of the same payments. Moving the claims against the alleged payor and its company to Switzerland would fragment the dispute and create a substantial risk of inconsistent findings concerning the key protagonists. That was a factor of very significant weight.
3. The court also found substantial connections with England. Aerium Finance Ltd was an English company. Mr Ruimy had lived mainly in England during the relevant period and had continuing personal connections here. The fact that payments were made through Swiss accounts did not make Switzerland the clearly more appropriate forum. The defendants had not identified a sufficiently concrete defence or evidence requiring a different conclusion, and the court declined to speculate about future witnesses or arguments.
4. The Swiss proceedings against the Mirabaud parties did not materially alter the analysis. The Aerium Scheme was not part of the pleaded Swiss claim, and the possible contribution proceedings were speculative and would not progress before the English proceedings were resolved. Swiss banking secrecy and Swiss law were, at most, limited considerations.
5. Article 34. The court would not exercise any discretion to stay even on the assumption that Brussels Recast applied. In any event, Article 34 was not applicable. The relevant Swiss debt-enforcement process was conducted by administrative authorities, not a court, and no document instituting proceedings had been lodged with a court before the English court was seised. A commandement de payer was at most a precursor to court proceedings. The court followed the approach in Municipio de Mariana and others v BHP Group (UK) Ltd and declined to depart from it.

Issues 1.1 and 1.2 were determined in favour of PIFSS.