Nature and length of applications for a stay

It was said in plain terms in Spiliada v Cansulex, and has been reiterated many times since, that the decision whether to stay proceedings is largely one for the evaluation of the first instance judge, and that appeals against the decision, especially when given by a Commercial Court judge, should be rare. It was also said that the judge should be able to proceed by refreshing his memory of what was said in Spiliada, and that submissions of the parties’ legal representatives should be measured in hours rather than days. To the same general end, of discouraging appeals from the decision at first instance, is the observation that a stay on these grounds ‘is essentially a matter of case management’. Sage though this advice may be, it appears to represent the triumph of judicial hope over experience. In some cases the hearings have been lengthy, and the evidence placed before the court crushing. It is not surprising that this has provoked some courts to suggest that matters are getting out of control. The most recent addition to this litany of judicial exasperation is Lungowe v Vedanta Resources Pic.^[1] No doubt there will be more.

One does not wish to trivialise a matter on which judicial opinions are expressed with such force. But the issue of where a dispute will be tried will very often be the most significant factor in the parties’ appraisal of the likely outcome of the case. Not only does the determination of forum tend to determine which system of law or laws will be applied to the merits of the case, but it will also determine which system of law will govern the pre-trial procedure. These factors, whose impact on the dispute may become clear as soon as the forum is settled, may themselves be enough to encourage the parties to come to terms. A preliminary skirmish on the question of jurisdiction, even if expensive, may assist the early settlement of cases, and the occasional burdensome application, and judicial scolding, may be a price worth paying. For similar reasons, the procedure to obtain a stay of proceedings may conduce to the overriding objective of the Civil Procedure Rules, namely that of dealing with a case justly by saving expense, ensuring that the case is dealt with expeditiously and fairly, and allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases. Not everyone will agree, but this aspect of Spiliada should not be overlooked: many cases in which the broad issue of jurisdiction is fought at the preliminary stage appear to go no further. This almost inevitably means that they consume a smaller share of the resources of the court than they otherwise would. Everybody gains.

The material date for the purposes of the evidence and other facts and matters to which the court may be taken on the application for a stay is the date of the hearing of the application for a stay, rather than the date on which the proceedings were instituted or the application notice was issued. It was correctly explained in Mohammed v Bank of Kuwait and the Middle East KSC⁵¹ that this was the most practical solution, for by contrast with applications to set aside an order granting permission to serve out, thereis no prior act of the court which is being questioned or contested.^[2] The issue whether another court is more appropriate than England may well be affected, for example, by the nature of the defence which the defendant intends to run. This may be unknown at the date proceedings are issued, and may not be clear when the application notice is issued. No doubt it will be necessary to put in evidence as to facts and matters which may be expected to arise at trial; this evidence may not be served until very shortly before the hearing. The decision in Mohammed v Bank of Kuwait, to look at all this material as at the date of the hearing, is rational. If the circumstances change materially after the hearing, this fact may furnish grounds for an application by the defendant to lift the stay, or justify a fresh application by the defendant for a stay, but it does not give ground for an appeal, for it does not establish that there was anything wrong with the original order when it was made.

• [1] [2019] UKSC 20, [2020] AC 1045. 2 For example, the Commercial Court Working Party, in commenting on the proposed Woolf reforms of civil procedure stated in its memorandum of 16 February 1996 that, so far as the Commercial Court was concerned, ‘unlike other parts of the High Court, there are very many cases that involve "forum conveniens" issues. Many cases are principally concerned with this point, and are resolved by the parties once jurisdiction issues have been decided, even in favour of the English courts’. There is no reason to doubt the continuing truth of that observation. 3 CPR Pt 1. 4 Implicitly approved in Lubbe v Cape Pic [2000] 1 WLR 1545, 1556, 1558. Contrast the relevant date for an application to set aside the order granting permission to serve out of the jurisdiction (the date is that of the order granting permission), or to set aside service where this was made where permission was not required (the date is the date of service). 5 [1996] 1 WLR 1483.
• [2] For confirmation, in a case of service out, see Sharab v Al-Saud [2009] EWCA Civ 353, [2009] 2 Lloyd’s Rep 160. 2 In such a case it is unlikely that the application could be made under CPR Pt 11; but CPR r. 3.1(2) may be used instead. However, for a different (and surely questionable) approach, in which the claimant jettisoned part of its claim, having lost at first instance, and then won on appeal, see Ivanishvili v Credit Suisse Trust Ltd [2020] SGCA 62. 3 Cf (in the context of recognition of foreign judgments): Henry v Geoprosco International [1976] QB 726. 4 Replacing, but also extending the scope of what was, RSC Ord. 12, r. 8. 5 [2009] UKPC 46. It will also apply to stays sought on the basis of Art. 28 of the Lugano Convention: Cooper Tire & Rubber Co v Shell Chemicals UK Ltd [2009] EWHC 2609 (Comm), [2009] 2 CLC 619. 6 There was an argument that CPR Pt 11 did not apply to a stay: that r. 11(1 )(a) applied to contentions that the basis (or gateway) for service was not satisfied and r. 11 (l)(b) to contentions that the case was not one in which the court should have exercised its discretion in favour of permission to serve out. However, r. 1 1 (6)(d) was not consistent with the argument that CPR Pt 11 did not apply to stays on the ground of forum non conveniens: and the ‘possible argument' was not favoured by the Privy Council.