Sanjay Shah & Anor v Christopher Chipperton

On an application for a stay on forum non conveniens grounds, the defendant must show that another available forum is clearly or distinctly more appropriate. The court must consider the forum with which the dispute has the closest and most real connection, including governing law, trust administration, asset situs, the parties’ connections, overlapping proceedings, documents and witnesses.

For an alleged trust, the governing law may be implied from the trust instrument and the intended administration of the trust. Where the trust’s substantive functions concern shares registered and traded in England, those matters may establish a closer connection with England than the parties’ residence abroad. Parallel foreign proceedings and foreign evidence do not necessarily displace that conclusion.

The claimants sought relief concerning £10 million allegedly held on trust and used to acquire shares in Arix Bioscience plc. The defendant, who had been served in England, applied to challenge jurisdiction and sought a stay on the ground that onshore Dubai was the more appropriate forum.

The parties disputed the alleged trust, its governing law and the significance of related proceedings in Dubai and England. The central issue was whether the defendant had shown that Dubai was clearly or distinctly the more appropriate forum, and whether justice nevertheless required a stay.

1. Application dismissed. The defendant failed to establish that onshore Dubai was clearly or distinctly the more appropriate forum. Costs were awarded to the claimants in the sum of £50,000. Permission to appeal was refused.
2. The applicable forum non conveniens principles were those derived from Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, as summarised in Dynasty Company for Oil and Gas Trading Limited v Kurdistan Regional Government of Iraq [2021] EWHC 952 (Comm). Since jurisdiction was founded by service within England, the burden lay on the defendant to show another available forum having competent jurisdiction which was clearly or distinctly more appropriate. If that were shown, the burden would shift to the claimants to identify circumstances requiring the stay to be refused.
3. Under the Recognition of Trusts Act 1987 and the Hague Convention, an express or implied choice of governing law is effective under Article 6. The implied choice is assessed initially by reference to the instrument creating or evidencing the trust. The intended administration of the trust is relevant, particularly at the time of its creation.
4. The alleged trust was concerned with acquiring, holding and selling shares registered and traded in London. That substantive administration, together with the situs of the shares, supported the conclusion that English law was impliedly chosen. The court therefore found an implied choice of English law.
5. Alternatively, applying Article 7 and the common law closest-connection approach, England had the closest connection. The parties’ residence and business in Dubai were relevant, but were outweighed by the trust’s purpose, defined period, intended administration, the location of the shares, the London market and the sterling currency.
6. The fact that Dubai law might not recognise trusts did not materially assist the defendant because there was insufficient evidence of the alternative remedy or how effectively it would operate. Related proceedings, documents and witnesses in Dubai did not show that Dubai was the clearly or distinctly more appropriate forum. Any overlap could be addressed through case management, and modern methods made foreign evidence practicable.

First-instance decision. The judgment records no prior appellate decision in the same proceedings.