Sanjay Shah & Anor v Christopher Chipperton
[2024] EWHC 1696 (Comm)
Zakir Haroon Mussa v Zubair Osman Gani Issa & Ors
4 April 2024
[2024] EWHC 763 (Ch)
High Court
Someone sued in England over a money dispute, but the case mostly happened in another country, Malawi. The English judge decided the case should be heard in Malawi because that's where most of the important things happened, and because having two cases going at the same time would be unfair and expensive.
Key Facts
- •Claimant (Mussa) sued Defendants (including a Malawian forex bureau and its director) in England for £1,892,002 for breach of an oral banking agreement.
- •Defendants challenged the English court's jurisdiction.
- •Parallel proceedings existed in Malawi, involving some of the same parties and subject matter.
- •The Claimant alleged an elaborate fraud involving the misappropriation of funds intended for loans in Malawi.
- •The Claimant initially pursued claims in Malawi, then initiated proceedings in England.
- •The Defendants argued that the Claimant was abusing the court process by pursuing parallel proceedings and that Malawi was the more appropriate forum.
- •The Claimant's claims involved alleged payments made through UK bank accounts, but were linked to an alleged illicit banking arrangement in Malawi to avoid currency restrictions.
Legal Principles
Valid service of proceedings is required for a court to have jurisdiction.
CPR r.6.9(2), CPR r.6.37
Abuse of process occurs when a claimant brings vexatious proceedings in multiple jurisdictions regarding the same subject matter.
CPR r.3.4(2)(b), Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65, David Shaw Silverware North America Ltd v Denby Pottery Company Ltd [2013] EWHC 4458 (QB)
In jurisdictional disputes, the court should consider the forum with the most real and substantial connection to the case (forum conveniens).
Spiliada Maritime Corporation v. Cansulex Ltd [1987] 1 AC 460, Limbu & 23 others v Dyson Technology Limited and others [2023] EWHC 2592 (KB), VTB Capital plc v Nutritek International Corpn [2013] 2 AC 337
The governing law of a tort claim is generally that of the country where the damage occurred, but this can be displaced if another country has a manifestly closer connection.
Rome II Regulation, Article 4(1), (3), AMT Futures v Marziller [2018] AC 439, Dolphin Maritime & Aviation Services Ltd v Sveriges [2009] 1 CLC 460, Winrow v Hemphill [2014] EWHC 3164 (QB)
The court should apply the overriding objective of dealing with cases justly and at proportionate cost.
CPR r.1.1
Outcomes
The English court declined to exercise jurisdiction over the Claimant's claims.
Malawi was determined to be the clearly more appropriate forum due to the facts of the case, including the location of key events, witnesses, and the ongoing Malawian proceedings.
The claim forms against D1 and D2 were not set aside despite defective service.
The court had the power to grant retrospective permission to cure the procedural defect, and doing so was consistent with the overriding objective.
The Claimant was not required to elect between the English and Malawian proceedings.
While the subject matter was similar, the substance of the claims differed, and forcing an election would have been an abuse of process and tantamount to imposing a case strategy on the Claimant.
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