The Court of Appeal has recently handed down its judgment refusing leave to appeal against the Royal Court’s dismissal of an application to stay proceedings on the ground of forum non conveniens due to the risk of not obtaining justice in Russia: United Company Rusal Plc v MB & Services Ltd and Tatiana Golovina.
The dispute concerns rights in respect of the design of liners used to line rail wagon cars to transport alumina. The plaintiffs, MB & Services Limited and its director Tatiana Golovina, claim that United Company Rusal PLC (“Rusal”) (a Jersey incorporated company) infringed their IP rights and acted in breach of confidence.
Forum Challenge before the Royal Court
Earlier this year, Rusal applied for the proceedings (which had been commenced in Jersey as of right because Rusal was incorporated here) to be stayed on the ground of forum non conveniens, on the basis that the proper forum was Russia. Following the English case of Spiliada Maritime Corporation v Cansulex Limited, the Royal Court had to answer the following two questions:
The Court found that Russia would be a more appropriate forum than Jersey on the basis that:
However, the Court ultimately rejected Rusal’s application, finding that the plaintiffs had shown cogent evidence of a real risk that they would not obtain justice in Russia. It concluded that:
Application for leave to appeal
The Court of Appeal ruled that two potential bases for giving leave (that a question of general principle falls to be decided for the first time or that there is an important question of law on which further argument and a decision would be to further public advantage) were irrelevant. Thus it had only to determine whether the appeal had a real prospect of success. Rusal had to show that the Royal Court misdirected itself or took into account irrelevant (or failed to take into account relevant) factors or reached a conclusion outside the spectrum of reasonableness.
Rusal contended that the court had failed to apply the evidence before it. It asserted that there was no risk of improper influence in the Russian Courts in the absence of serious political sensitivity, and that US sanctions recently imposed against Mr Deripaska removed any risk of future impropriety.
Finding that the Royal Court had reached conclusions that were well within the range of what was reasonable on the evidence, and that there was no basis for saying that the Royal Court misunderstood the evidence, the Court of Appeal dismissed each of Rusal’s contentions and refused leave.
This decision demonstrates the high threshold required to challenge a first instance court’s determination of the existence of a risk of not obtaining justice in what the court had itself deemed to be the more appropriate forum for proceedings. The Court of Appeal has made it clear that such a determination is a question of evaluation by the first instance court on the evidence as presented.
The court was referred to a number of recent English decisions on this issue, including one from the Court of Appeal also featuring Mr Deripaska in which the Court stated that the evaluation of the evidence was a matter for the judge and that the Court of Appeal could only interfere with his conclusions if satisfied that the evidence before him was incapable of supporting them. The Jersey Court of Appeal in the present case observed that each application will depend on the particular facts before it, and that other courts’ decisions provide little assistance as each court will have to consider the particular circumstances before it to decide whether a real risk is established by cogent evidence.
It is to be hoped that this latest decision might curtail the practice of appealing forum decisions and that parties may (finally) take heed of the words of Lord Templeman over twenty years ago in the Spiliada:
“In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge…I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere.”
However, as many of these decisions feature very wealthy parties (often oligarchs) this may be a vain hope.
Lynne Gregory, Senior Associate
  JCA 136.
  1 AC 460
 Cherney v Deripaska  EWCA Civ 849