Rana Al-Aggad v Talal Al-Aggad & Ors

On a forum non conveniens application, the defendant must first show that another forum is clearly or distinctly more appropriate. If that burden is met, the claimant must establish by cogent and objective evidence special circumstances creating a real risk that substantial justice will not be obtained there. The real-risk standard applies to forward-looking questions, although historical facts capable of proof are determined on the balance of probabilities.

For service out, forum suitability is assessed at the date permission was granted, subject to later evidence casting light on that position. The risk of multiplicity and irreconcilable judgments remains an important factor, although it is not decisive where the alternative forum is overwhelmingly appropriate and the claimant created the risk by choice of forum.

The claimant, a Saudi national living in Canada, brought claims against her siblings concerning an agreement relating to a Saudi company and an alleged conspiracy connected with Saudi proceedings and company shares.

The sister, Lama, challenged service as of right on forum non conveniens grounds, contending that Saudi Arabia was the appropriate forum. The brothers, served out of the jurisdiction under CPR PD 6B, paragraph 3.1(3), sought to set aside service in favour of Saudi Arabia or Jordan.

The central issues were whether Saudi Arabia was clearly or distinctly the more appropriate forum, whether the claimant had shown a real risk that she could not commence or participate fairly in proceedings there, and whether Jordan could provide a suitable alternative if the claims against Lama remained in England.

1. Applications dismissed. Saudi Arabia was clearly and distinctly the more appropriate forum at Stage 1 of the Spiliada Maritime Corp v Cansulex Ltd test, given the Saudi subject matter, governing law, location of conduct, witnesses and documents, and the parties’ connections with Saudi Arabia.
2. At Stage 2, the claimant had to establish by cogent and objective evidence special circumstances requiring the English court to retain the case. The overarching question was whether there was a real risk that substantial justice would not be obtained in Saudi Arabia. A fact capable of being proved as having happened was nevertheless to be proved on the balance of probabilities.
3. The claimant established that, as a Saudi citizen without a Saudi national identity card, she could not realistically execute and legalise a power of attorney through the Canadian or Apostille Convention routes. The same identity problem prevented the proposed double-power-of-attorney route and access to the Najiz portal.
4. The evidence also established a real risk that she could not participate fairly in Saudi proceedings. The claim depended substantially on her personal evidence, yet the evidence indicated that access to remote hearings and giving evidence required identity-related systems unavailable to her.
5. For the brothers’ service-out challenge, the relevant date was the date permission to serve out was granted. Later developments could be considered only so far as they cast light on the position at that date. The distinction between service-out cases and service as of right was maintained.
6. Jordan was not shown to be the forum conveniens. If the claims against Lama proceeded in England, the substantial overlap with the claims against the brothers created an important risk of multiplicity and irreconcilable judgments. Vedanta Resources PLC v Lungowe did not establish that this consideration ceased to matter whenever the claimant had made a choice of forum. Case-management stays were exceptional and this was not a compelling case for one.
7. The court also refused permission for excessive skeleton arguments served contrary to the Commercial Court Guide. The costs of those additional skeletons were not recoverable.

First-instance judgment. The judgment states that the applications by Lama and the brothers were dismissed.