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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Rehman v Hamid [2019] EWHC 3692 (Ch) (18 September 2019) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2019/3692.html Cite as: [2019] EWHC 3692 (Ch) |
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BUSINESS AND PROPERTY COURT
PROPERTY TRUSTS AND PROBATE (ChD)
7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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REHMAN | Claimant | |
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HAMID | Defendant |
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Lower Ground, 18-22 Furnival Street, London, EC4A 1JS
Tel No: 020 7404 1400
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
MR BISHOP counsel appeared on behalf of the Defendant
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Crown Copyright ©
MASTER SHUMAN:
THE FACTUAL BACKGROUND
THE LAW
"(a) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
(b) As Lord Kinnear's formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country. (see (f) below)
"(c) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established "
"In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum." [my emphasis] In this way, proper regard is paid to the fact that jurisdiction has been founded.
(d) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum."
"So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business.
(e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay
(f) If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction."
THE APPLICATION
(i) What is the natural forum for a dispute?
"A will made by a testator dying on or after January 1 1964 will be treated as properly executed if its execution conformed to the internal law in force in the country where it was executed or in the country where at the time of its execution or of the testator's death he was domiciled or had his habitual residence or in a state at which at either of those times he was a national."
"A will so far as it disposes of immovable property will be treated as properly executed if its execution conformed to the internal law in force in the country where the property was situated."
"The material or essential validity of a will of movables or of any particular gift of movables contained therein is governed by the law of the testator's domicile at the time of his death."
(ii) The ability of the litigants to understand the procedure
(iii) The domicile of the deceased
"Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence but not otherwise."
There are two parts to the test: residence and an intention of permanent or indefinite residence.
"i) The domicile of origin remains of great importance and is said to be "more tenacious" than other forms of domicile. As Dicey put it at [6-031] "it is more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice".
ii) There is a presumption that a person continues to be domiciled in the country in which he is domiciled. The burden of proof is on the wife to demonstrate that she has lost her domicile of origin, the standard of proof being the ordinary civil standard. Cogent and clear evidence is needed to show that the balance of probabilities has been tipped regardless of whether the issue is the acquisition, or loss, of a domicile of choice.
iii) The statements of people claiming or disputing a change of domicile must be treated with caution unless corroborated by action consistent with the declaration. The court will view evidence of an interested party with suspicion.
iv) A person can acquire a domicile of choice by a combination of residence and the intention of the person of permanent or indefinite residence but not otherwise.
v) Residence for a short period of time, even a few days, may be sufficient to establish a domicile of choice. The length of residence is not important in itself. (It is accepted by Mr Scott that, all other things being equal, either of the wife's two short periods of residence in England could be capable of establishing a domicile of choice.)
vi) Whilst the residence does not have to be long it has to be with the intention of permanent or indefinite residence.
vii) Residence without intention or intention without residence will not do to establish a domicile of choice."
(iv) An issue of Mohammedan Law
(iv) Connecting factors: the location of the relevant protagonists in this case
(vi) The court first seized
(vii) The cost of proceedings
Substantial Justice
"A particular reason for the requirement to exercise proportionality in jurisdiction disputes of this kind is that, in most cases, they involve a contest between two competing jurisdictions in either of which the parties could obtain substantial justice. The exception, an issue whether substantial justice is obtainable in one of the competing jurisdictions, may require a deeper level of scrutiny, not least because a conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity. Such a finding requires cogent evidence, which may properly be subjected to anxious scrutiny."