Sami Zouari v Ana Maria Matos Soares Bilreiro Paixo

On a forum non conveniens application, the court must identify an alternative forum with competent jurisdiction that is both available and more appropriate for the trial, having regard to the interests of all parties and the ends of justice.

An alternative forum remains available where it is already seised of the dispute, even though a party has applied there for dismissal. The possibility that the foreign court may later decline jurisdiction is generally considered when that event occurs.

Concurrent proceedings arising from the same dispute may constitute an abuse of process, but strike out is reserved for clear and obvious cases after careful examination of all the circumstances. Different causes of action do not necessarily justify parallel proceedings.

The claimant brought proceedings in Portugal concerning the alleged breach of an agreement for the sale and construction of a property in Portugal. He later issued English proceedings against one Portuguese defendant, alleging conspiracy and unjust enrichment, after difficulties serving her with the Portuguese claim.

The defendant applied under Civil Procedure Rules 1998 Part 11 for a declaration that the court should not exercise jurisdiction, alternatively for the claim form to be set aside, and also sought strike out as an abuse of process or a stay.

By the hearing, both parties accepted that the English proceedings should at least be stayed. The issues were whether Portugal was an available and more appropriate forum and whether the English claim should be struck out as abusive.

1. The application under CPR Part 11 succeeded to the extent that the court declared that it would not exercise its jurisdiction and stayed the English proceedings to enable the dispute to proceed in Portugal. The governing approach was that a stay requires another forum with competent jurisdiction which is available and more appropriate, having regard to the interests of all parties and the ends of justice, as stated in The Spiliada [1987] A.C. 460.

2. Portugal was clearly the more appropriate forum. The property and agreement were located there, the relevant witnesses and documentation were connected with Portugal, Portuguese law would be relevant, and the claimant had already commenced proceedings there. The English claim arose from the same factual dispute, and the different pleaded causes of action did not materially alter the forum analysis.

3. Portugal was available. It was already seised of the case. The defendant’s pending application to dismiss the Portuguese proceedings did not make Portugal unavailable at the date of determination. If a later Portuguese decision prevented access to that court, availability could be reconsidered in light of that decision.

4. The court declined to strike out the claim under CPR 3.4(2)(b). Concurrent proceedings concerning the same dispute may verge on the vexatious, but whether they constitute an abuse depends on all the circumstances. The remedy of strike out is appropriate only where the abuse is sufficiently clearly established and the case is clear and obvious. The claimant’s commencement of the English proceedings was a reasonable response to the defendant’s avoidance of service in Portugal, and the circumstances did not meet that threshold.

5. The defendant’s own application to dismiss the Portuguese proceedings weakened her criticism of the claimant’s conduct. The court could not determine the legal effect of the parties’ competing positions in Portugal without expert evidence of Portuguese law.