Court of Appeal Confirms Royal Court’s Ability to Determine When There is a Risk of not Obtaining Justice in the Appropriate forum

Factual Background

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 Limited², the Royal Court had to answer the following two questions:

1. Had the Defendant discharged the burden of establishing that Russia was another available forum which was clearly or distinctly more appropriate than Jersey?
2. If so, had the plaintiffs discharged the burden of showing by cogent evidence that there was a real risk that they would not obtain justice in Russia if the case proceeded there?

The Court found that Russia would be a more appropriate forum than Jersey on the basis that:

1. the key witnesses were resident in Russia and there was no suggestion of calling any witness resident in Jersey;
2. the majority of relevant documents were in Russia and there was no suggestion of material documents being located in Jersey;
3. the majority of the acts giving rise to the claims were carried out in Russia;
4. the patents in question included Russian ones; and,
5. the residence of the parties was neutral as between Jersey and Russia as the appropriate forum.

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:

1. the Russian Commercial Courts were not immune from external or political influence;
2. a founder and significant owner of Rusal, Mr Deripaska, had the wealth and power to exert influence on the Russian courts and had shown himself willing to do so;
3. employees of Rusal had previously taken actions, sometimes unlawful, to intimidate Tatiana Golovina and make it more difficult for her to pursue her action; and
4. Tatiana Golovina would not return to Russia for any trial out of fear for her safety and liberty.

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.

Conclusion

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 them³. 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.

¹ [2020] JCA 136.

² [1987] 1 AC 460

³ Cherney v Deripaska [2009] EWCA Civ 849