This blog post was contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.
In Al Assam & Ors v Dimitrios Tsouvelekakis, the High Court had the opportunity to engage into a discussion of the “proper forum” in a dispute between the the settlors of two Cypriot trusts, established under the International Trusts Law of the Republic of Cyprus, and the trustee, a company incorporated in Cyprus. The claimants claimed for the losses suffered in connection with the investments of the trusts.
In October 2021, the claimants sought to make the defendant liable for losses suffered in connection with the investments of the trusts.
The claimants served proceedings on the defendant in England, following to which the defendant sought a stay of proceedings on the basis that Cyprus was clearly or distinctly the more appropriate forum.
As the proceedings were served after the end of the transition period relating to the exit of the UK from the European Union, the Brussels Regulation Recast (Regulation No 1215/2012) no longer applied. As such, whether the Courts of Cyprus were the most appropriate forum, was to be decided on the basis of common law. The judge, therefore, applied the two limbs of Spiliada Maritime Corporation v Cansulex Limited [1987] 1 AC 460. Under limb 1 of the test the defendant must establish that the courts of Cyprus are (a) available and (b) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.
The judge then had to initially consider whether Cyprus was an available jurisdiction, something that required the presence of both international and territorial jurisdiction. Based on evidence provided by experts, the judge concluded that Cypriot courts had indeed both international and territorial jurisdiction.
The discussion then turned on whether Cyprus was clearly or distinctly a more appropriate forum. The judge, in that respect made the following considerations:
a) From the point of view of personal connection, the fact that the residence of the defendant remains in England is relevant and of significance.
b) The fact that some or part of some of the causes of action of the claimants occurred in Cyprus did not point towards the latter being a more appropriate forum.
c) Matters of practicality did not point in favour of Cyprus being a more appropriate forum.
d) Given the similarities between Cypriot and English law in the relevant area, the fact that the majority of the claimants’ causes of actions were most likely governed by Cypriot law, was an indication in favour of Cyprus, but only a slender one.
e) The overall shape of the litigation did not indicate that Cyprus was the more appropriate forum.
The judge concluded that the application should be dismissed on limb 1 of Spiliada.
Despite not having to, the judge went on to briefly consider limb 2 of Spiliada. He concluded that, as the expert opinion was inconclusive as to the delays in proceedings in Cyprus, he could not argue in favour of unavailability of justice in Cyprus. He also rejected the submission that a statute of limitation issue in respect of one cause of action could justify a refusal of a stay, as it was largely of the claimants’ own making.
It is interesting to note, then, that in this instance, as limb 2 was found not to have been satisfied, had the conditions of limb 1 been met, the court would have ordered a stay of the proceedings in England.