The High Court has granted a stay of English proceedings on the basis that the Thai courts were clearly and distinctly the more appropriate forum to determine the dispute. The stay was granted even though the English proceedings had begun five years earlier, and the defendant had unsuccessfully challenged jurisdiction at that time and had subsequently submitted to the jurisdiction by serving a defence: Apollo Ventures Co Ltd v Manchanda [2021] EWHC 3210 (Comm).

The stay was granted in light of a change in circumstances – the defendant, M, was the only remaining defendant in the English action, the claims against other defendants having been struck out when the claimant failed to provide security for costs. This meant that there was no longer a risk of inconsistent judgments against different defendants in different jurisdictions if the claim against M was stayed, a key consideration when jurisdiction was challenged originally. The court also took into account the existence of similar proceedings pending in Thailand, which were commenced by the claimant and its shareholders after the English proceedings began and were much further advanced than the English proceedings.

This case demonstrates that it is possible to apply for a stay of English proceedings a considerable time after the proceedings have begun, even where the defendant has submitted to the jurisdiction. An extension of time is however required and the application should be made promptly, as the court will apply the Denton criteria (outlined here), meaning any delay will be taken into account. The stay will likely only be granted in unusual circumstances, as on the facts of this case.

Background

The claimant is a Thai company in which M is a substantial shareholder. The claimant alleges that M caused the claimant to enter into two substantial loans with a Thai businessman, without the knowledge of other officers of the claimant and by the use of forged documents. The greater part of the loan money was, it says, paid for the benefit of M and his family.

Proceedings began in England in May 2016 against M and a number of other defendants and a world-wide freezing order was granted. M applied at that time to set aside permission to serve proceedings outside of the jurisdiction but that application was unsuccessful, in large part because the claims against a number of the other defendants were proceeding as of right in England as they were domiciled here, and allowing the proceedings against M to continue would avoid separate trials in different jurisdictions.

The claimant obtained judgment in default against M but that was set aside. In April 2018, M served its defence, thereby submitting to the jurisdiction.

A number of claims relating to the loans were also issued in Thailand, including a claim brought by the claimant in October 2018 against M and others which brought essentially the same claim as in the English proceedings (other than a tracing claim).

In January 2021 the claim against the other defendants was struck out for the claimant’s failure to satisfy an order for security for costs (M had not applied for security).

In May 2021, M issued an application seeking a stay of the English proceedings on the grounds that Thailand was clearly and distinctly the more appropriate forum for the trial of the action and, now that the claims against the other defendants had been struck out, there was no reason why the English proceedings should continue.

Decision

The High Court (Sir Nigel Teare sitting as a High Court Judge) granted the stay.

It was common ground that CPR 11(4) requires an application to challenge the English court’s jurisdiction to be made within 14 days of filing an acknowledgment of service (or 28 days in the Commercial Court), and that that time expired in 2016. The claimant therefore needed a retrospective extension of time to apply for a stay, which engaged the Denton principles. Those principles require the court to assess the seriousness and significance of the breach of the CPR, consider why the breach occurred and then evaluate all the circumstances of the case.

Applying those principles, there had been a serious and significant breach as there had been delay in bringing the application and no reason had been put forward for the delay. It had taken a little under four months from the strike-out of the claims against the other defendants until the application was issued. That amounted to a delay of about two months or more compared with what would have been reasonable (around six weeks in the court’s view).

So far as all the circumstances of the case were concerned, long extensions of time had only been granted previously where the defendant had not submitted to the jurisdiction, but submission was not a bar, just a relevant factor to take into account. Other factors included: the lack of steps in the English proceedings; the fact that the claimant’s costs, while substantial, were in part its own fault; the existence of the proceedings in Thailand; and the strength of the connections with that country.

Weighing up all the factors, the case for an extension of time had been made out. If exceptional circumstances were required to justify an extension of time where there had been a submission to the jurisdiction, then the dismissal of the claims against the other defendants, where the existence of such proceedings was a reason for keeping the claim against M in this jurisdiction, provided such circumstances.

Turning to the stay application itself, Thailand was the most appropriate forum. The claims arose from transactions between a Thai company and a Thai businessman which were said to involve unlawful acts under Thai law, key witnesses were in Thailand, the key events involved issues of Thai law and there were proceedings pending there. There were assets in England but they would be preserved by the world-wide freezing injunction which would remain in place.

Anna Pertoldi
Anna Pertoldi
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Maura McIntosh
Maura McIntosh
Professional support consultant
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