Roland Berger Limited v Darren Perrin

On a forum non conveniens application, the defendant must first show that the proposed foreign court is an available forum having competent jurisdiction over the dispute. The defendant must then show that the foreign court is clearly or distinctly more appropriate than the English court. The court must define the dispute by reference to its substance and overall practical realities, including the likely shape of related multi-party litigation, but must avoid speculation about uncertain future proceedings. A contractual submission to the English jurisdiction, an English employment relationship and the defendant’s domicile are powerful connecting factors. Even where the factual centre of gravity lies abroad, those factors may prevent a stay unless the defendant establishes a compelling reason for departing from the parties’ agreement.

Roland Berger Limited brought contractual and related claims against Darren Perrin, alleging that he assisted a coordinated movement of employees and business from the Roland Berger group to a competitor in the Middle East.

Perrin applied under CPR 11 for a declaration that the State Court of Dubai was the appropriate forum and for a stay. He relied on the Middle Eastern location of the alleged conduct, witnesses, businesses and losses, and on the prospect of wider litigation concerning the team move.

The Director Agreement was governed by English law and contained an exclusive English jurisdiction clause. The central issues were whether the Dubai court was an available forum with competent jurisdiction and, if so, whether it was clearly or distinctly more appropriate than the Commercial Court in London.

1. Application dismissed. Perrin failed to establish that the State Court of Dubai was an available forum having competent jurisdiction over all RBL’s claims.
2. The applicable test was the two-stage Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) test. At Stage 1, the defendant had to establish both that the alternative forum was available and that it was clearly or distinctly more appropriate. The availability question had to be determined first. The burden did not shift because Perrin failed at that stage.
3. A foreign court was available only if it had personal and subject-matter jurisdiction to determine the claim. Perrin’s willingness to submit to Dubai jurisdiction could not itself confer jurisdiction under UAE law. The evidence showed that Articles 20(3) and 33(2) of the CPC might apply to some matters, but did not establish that all the pleaded claims fell within those provisions. The Dubai court might accept jurisdiction, but would not necessarily do so.
4. The dispute had to be identified substantively. The court could, and where appropriate must, consider the overall practical realities of related litigation, including the possible future joinder or claims against other participants. That possibility had to be assessed cautiously, since uncertain future events could not support speculation.
5. The factual centre of gravity of the wider team-move dispute was in the Middle East. Nevertheless, the proceedings against Perrin had powerful English connections: he was domiciled in England, the employment relationship was essentially English, the alleged contract was governed by English law, and the parties had agreed to the exclusive jurisdiction of the English courts. Those factors were not absolute, but departing from them required a compelling reason.
6. The prospect of related proceedings in Dubai was too uncertain. It was unclear whether other parties would be sued there and whether the Dubai court would have comprehensive jurisdiction over them. The possibility of fractured litigation therefore did not justify a provisional stay.
7. The application was dismissed. The parties were invited to agree consequential orders; permission to appeal and related applications were adjourned.