Zakir Haroon Mussa v Zubair Osman Gani Issa & Ors

Parallel proceedings may amount to an abuse of process where they concern substantially the same subject matter, witnesses and factual issues. The court may require an election between proceedings, particularly where duplication risks inconsistent findings and disproportionate costs.

Under Spiliada, the court identifies the forum with the most real and substantial connection, applying the appropriate burden according to whether service is in or out of the jurisdiction. The inability to try claims against some defendants in the foreign forum is important but not decisive. A stay will be refused only where cogent evidence establishes a real risk that substantial justice cannot be obtained abroad.

The claimant brought proceedings in England against individuals and a Malawian foreign-exchange company alleging breach of an oral banking agreement, deceit and unlawful-means conspiracy concerning funds allegedly received and transferred for loans in Malawi.

He had already commenced related proceedings in Malawi against the first defendant concerning substantially the same alleged arrangement. The defendants challenged service, argued that the claimant should elect between the proceedings, and sought a stay or refusal of English jurisdiction on forum conveniens grounds. The central issues were whether the English proceedings were abusive, whether service defects should be cured retrospectively, and whether Malawi was clearly and distinctly the more appropriate forum.

1. Service. The first defendant could reside in more than one place. Applying Varsani v Reflo Ltd [2010] EWCA Civ 560, the relevant question was the pattern, nature and duration of his occupation. England was a usual residence on the evidence, although service was at the wrong address. The second defendant was a Malawian company without an English place of business, and permission to serve it out had not been obtained.
2. The defects could be cured retrospectively under CPR r.3.10. If the proceedings were otherwise to continue, setting aside the claims would be contrary to the overriding objective because it would merely require reissue.
3. Election and abuse. The English and second Malawi proceedings raised the same central questions: whether the first defendant agreed to manage the claimant’s funds through the second defendant, and what payments were made. Allowing both proceedings would create duplicated cost, inconvenience, court resources and a risk of inconsistent factual findings. It was therefore an abuse of process to pursue both claims against the first defendant. The claimant could elect to discontinue the Malawi proceedings, but that did not determine the appropriate forum.
4. Forum conveniens. Applying Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, Malawi was clearly and distinctly the more appropriate forum. The alleged banking arrangement, principal defendant, relevant witnesses, loan transactions, regulatory issues and existing proceedings were substantially connected with Malawi. The alleged illegality and exchange-control issues were particularly suited to determination by the Malawian courts. The English defendants’ absence from the Malawi proceedings was given little weight because the claimant had chosen their omission, they were minor players, and they were willing to be joined and bound.
5. The proceedings in Malawi were close to trial, whereas the English proceedings had barely begun. The governing-law issue was uncertain because the English pleading was internally inconsistent, but it was principally factual and did not materially outweigh the Malawian connections.
6. Substantial justice. The claimant produced no cogent evidence of a real risk that substantial justice would be unavailable in Malawi. Mere allegations of corruption were insufficient, and the court was required to approach such a conclusion with caution because of international comity.
7. England should not exercise jurisdiction over the claims against the defendants. Malawi was the single jurisdiction in which the claims could most suitably be tried.