[2] In Trayport Ltd v E-Star Trading GmbH [2026] EWHC 164 (Ch), HHJ Davis-White KC (sitting as a Judge of the Chancery Division) said, at paragraphs 65 to 70:

'A useful starting point is the judgment of Carr J (as she then was) in Tugushev v Orlov (No 2) [2019] EWHC 2031 (Comm) at [7]-[8]:

"[7] The law is non-contentious. The following general principles can be distilled from the relevant authorities by way of summary as follows:

i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court's attention to significant factual, legal and procedural aspects of the case;

ii) It is a high duty and of the first importance to ensure the integrity of the court's process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make;

iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents;

iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on;

v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction;

vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect;

vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a minitrial of the merits;

viii) In general terms it is inappropriate to seek to set aside a freezing order for nondisclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself;

ix) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived;

x) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court's starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged;

xi) The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties;

xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter noncompliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts;

xiii) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure.

[8] There is no suggestion that the same principles do not apply to a without notice application for permission to serve out as they do on a without notice application for a freezing order (as confirmed for example in PJSC Commercial Bank PrivatBank v Kolomoisky and others (supra) at [169] and Sloutsker v Romanova [2015] EWHC 545 (QB) at [52])."

In Derma Med Ltd v Ally [2024] EWCA Civ 175, the principles stated by Carr J in the Tugushev case were approved. It was noted at paragraph [30] that:

"[30] Although this was said in the context of an application for a freezing order, the principles are of general application."

Of course, the principles have to be applied in the particular context in which they arise. For example, what is material in one context may not be material in another, or may not be as significant; similarly the response of the court will depend on applying the relevant principles to the particular context. As Toulson J (as he then was) said in MRG v Engelhard Metals Japan [2003] EWHC 3218 (Comm); [2004] 1 Lloyd's Rep 731 at [25]-[26]:

"[25] Materiality therefore depends in every case on the nature of the application and the matters relevant to be known by the Judge when hearing it. I was referred to a number of statements on the duty of disclosure in the context of applications for freezing injunctions. In such cases the Court is being asked to make an order of an exceptional kind, prohibiting or restricting a defendant's use of its own assets before any adjudication has been made against it. Because of its draconian nature, it is a jurisdiction which requires great caution and a wide range of factors may have a bearing on the Court's decision.

[26] An application for permission to serve out of the jurisdiction is of a very different nature. The general principles about disclosure on without notice applications still apply, but the context is different. The focus of the inquiry is on whether the Court should assume jurisdiction over a dispute. The Court needs to be satisfied that there is a dispute properly to be heard (i.e. that there is a serious issue to be tried); that there is a good arguable case that the Court has jurisdiction to hear it; and that England is clearly the appropriate forum. Beyond that, the Court is not concerned with the merits of the case."

(see also Payabi v Amstel Shipping Corporation [1992] QB 907 at 918).

Before me, [counsel for the first and second defendant] having relied in his skeleton argument upon Toulson J's statement in paragraph [26] that I have just cited, to the effect that the general principles are the same but that they have to be applied in the particular context, submitted orally that Toulson J had said that the principles differed as between freezing injunction applications and service out applications. I do not read Toulson J as saying that, quite the contrary. However, if there was any doubt about the correct position that has since been clarified by cases referred to and as summarised in Tugashev and by the Court of Appeal in the Derma Med case.

I was also referred to a number of the cases illustrating the application of the relevant principles. In particular I was referred to Crossroads Corporate Finance (UK) LLP v Ontario Management Ltd [2025] EWHC 1011 (Comm); Almegha, v Al-Sanea [2025] EWHC 322 (Ch) and Marinkakis v Karipidis [2025] EWHC 13 (KB) in particular showing the need for paper applications to clearly flag matters up (and that doing so in a Skeleton argument will do) and not bury them in the papers.

Finally, in the context of the differences in type and consequence of innocent and non-innocent non-disclosure and, even where innocent, serious and non- serious non-disclosure, and the issue of the court's overall approach, as dealt with in paragraph 7(ix) to (xiii) of the Tugashev case, I was referred to Borelli v Otaibi [2024] ILPr 31, Banca Turco Romana SA v Cortuk [2018] EWHC 662 Comm), National Bank Trust v Yurov [2016] EWHC 1913 (Comm), Wragg v Opel Automobile GmBH [2024] EWHC 1138 (KB). In addition I was referred to paragraph 34(1) of the Banca Turco case where it was said that "if an applicant who is guilty of non-disclosure wishes the court to treat it as innocent, it is incumbent upon it to explain how it came about." Possibly in light of the latter point, at the break in the hearing I made an order permitting the Claimant to file and serve further evidence dealing with limited topics, one of which was the allegation of breach of the duty of full and frank disclosure regarding the Employment Agreement and Termination Agreement. Mr Harris' fourth witness statement dealt with that (among other matters).'

[3] In State Oil Co of Azerbaijan v Mansimov [2026] EWHC 2102 (Comm), Birt J heard a defendants' application for an order, setting aside an earlier (Jacobs J's) order, which granted the claimants permission for the claim to be served out of the jurisdiction. Under the heading 'application', Birt J said, at paragraphs 18 and 19:

'The defendants now apply to set aside the order of Jacobs J giving permission for service out of the jurisdiction. That order also provided for alternative service on each of the defendants, but no separate point is taken in the application in relation to that part of the order.

There was no dispute between the parties that, in order for the claimants to obtain permission to serve the defendants out of the jurisdiction they must satisfy the court that:

i) There is a serious issue to be tried on the merits of the claim, i.e. the claim has to have a real, as opposed to a fanciful, prospect of success.

ii) There is a good arguable case that the claim falls within one or more of the jurisdictional gateways in paragraph 3.1 of PD6B.

iii) In all the circumstances England is clearly or distinctly the appropriate forum for the trial of the dispute and that the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction. This is reflected in CPR 6.37(3).

See AK Investment CJSC v Kyrgyz Mobil Tel Limited [2011] UKPC 7, [2012] 1 WLR 1804 at paragraph 71; Brownlie v Four Seasons Holdings Inc [2017] UKSC 80, [2018] 1 WLR 192 at paragraph 3.'

[4] In Intralinks Inc v Nexans SA [2026] EWHC 2355 (Comm) ('Intralinks'), in the London Circuit Commercial Court, Thomas Raphael KC (sitting as a Deputy Judge of the High Court) had before him a case where:

(a) a claimant (Intralinks) had issued a claim for disputed sums under a contract; 

(b) the claimant had sought, and obtained (paragraph 11), permission to serve out of the jurisdiction (paragraph 10). The claimant argued that jurisdiction could be established under Gateway 6(c) and Gateway 7. It also argued that England and Wales (“England” for brevity) was the proper place to bring the claim (paragraph 10). 

The defendant (Nexans) challenged the jurisdiction of the Court by application under CPR Part 11. The defendant: (a) denied that a valid jurisdictional gateway was satisfied; and (b) said it had not been shown that England was the proper place to bring the claim (paragraph 12). 

Under the heading 'Legal Structure', the Judge said, at paragraphs 15 to 19:

'The framework for whether the Court has jurisdiction over a foreign defendant who is not present in England is set out in the rules for service of proceedings abroad contained in CPR 6.36 and 6.37 and CPR PD 6B, §3.

To justify the Court assuming jurisdiction, Intralinks must show: that (a) there is a “serious issue to be tried”; (b) one of the gateways set out in PB 6B applies for each claim (CPR 6.36); (c) England is “the proper place in which to bring the claim” (CPR 6.37(3)); (d) in all the circumstances the Court ought to exercise its discretion to permit service out of the jurisdiction. See Altimo Holdings and Investment v Kyrgz Mobil Tel [2011] UKPC 7, [71].

The burden of proof of establishing each requirement is on Intralinks: Altimo, [71]. Nexans did not dispute that there was a serious issue to be tried, nor did it dispute that, if (b) and (c) were satisfied, this would be an appropriate case for the discretion to permit service out to be exercised.

To show that a gateway applies, Intralinks must establish a “good arguable case” that the conditions of the gateway are satisfied. This requires, where there are factual disputes as to the satisfaction of the relevant conditions, that provided the Court can reach a reliable assessment (which it can here), Intralinks must show it has “the better of the argument” on the material available, “having regard to the limitations which an interlocutory process imposes”. The test is “context-specific and ‘flexible’”, and does not turn on satisfying the civil standard at trial, of proof on the balance of probabilities. In expressing a view for the purposes of jurisdiction, “the court must be astute not to express any view on the ultimate merits of the case”. See Kaefer Aislamentos v AMS Drilling Mexico [2019] 1 WLR 3514 (CA), [73]-[80]. However, if a question of law goes to the existence of jurisdiction, such as the meaning of a gateway, the Court will normally decide the question, instead of assessing whether the claimant has a good arguable case on it: Altimo, [81].

To satisfy the requirement that England is the “proper place” to bring the claim, Intralinks must show that England was “clearly” the “appropriate” forum to hear the claim: Spiliada Maritime v Cansulex [1987] AC 460, 481D-E. This is the question of “forum conveniens”, explored below.'

Later, under the heading 'The Law on Appropriate Forum' and subheading 'General Principles', the Judge said, at at paragraph 114 to 134:

'114. English law has adopted the doctrine of forum conveniens with the enthusiasm of a convert. Yet the chain of cases which achieved this, starting with The Atlantic Star [1974] AC 436, and passing through MacShannon v Rock Wear Glass [1978] AC 795, involved a gradual and sometimes painful process of development (Spiliada 475D-476B). It is only with Lord Goff’s luminous judgment in Spiliada that the modern doctrine of forum conveniens take form. So judgments on this topic between 1973 and 1987 must be handled with care.

115. The heart of the law should be taken from Spiliada. The basic principle is:

It is proper therefore to regard the classic statement of Lord Kinnear in Sim v. Robinow (1892) 19 R. 665 as expressing the principle now applicable in both jurisdictions. He said, at p. 668:

"the plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice."

(p. 474C-D)

116. Lord Goff added an important clarification, sometimes forgotten:

I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However the Latin tag (sometimes expressed as forum non conveniens and sometimes as forum conveniens) is so widely used to describe the principle, not only in England and Scotland, but in other Commonwealth jurisdictions and in the United States, that it is probably sensible to retain it. But it is most important not to allow it to mislead us into thinking that the question at issue is one of "mere practical convenience." Such a suggestion was emphatically rejected by Lord Kinnear in Sim v. Robinow, 19 R. 665, 668, and by Lord Dunedin, Lord Shaw of Dunfermline and Lord Sumner in the Société du Gaz case, 1926 S.C.(H.L.) 13, 18, 19, and 22 respectively. Lord Dunedin, with reference to the expressions forum non competens and forum non conveniens, said, at p. 18:

"In my view, 'competent' is just as bad a translation for 'competens' as 'convenient' is for 'conveniens.' The proper translation for these Latin words, so far as this plea is concerned, is 'appropriate.'"

Lord Sumner referred to a phrase used by Lord Cowan in Clements v. Macaulay (1866) 4 Macph. 583, 594, viz. "more convenient and preferable for securing the ends of justice," and said, at p. 22:

"one cannot think of convenience apart from the convenience of the pursuer or the defender or the court, and the convenience of all these three, as the cases show, is of little, if any, importance. If you read it as 'more convenient, that is to say, preferable, for securing the ends of justice,' I think the true meaning of the doctrine is arrived at. The object, under the words 'forum non conveniens' is to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends."

In the light of these authoritative statements of the Scottish doctrine, I cannot help thinking that it is wiser to avoid use of the word "convenience" and to refer rather, as Lord Dunedin did, to the appropriate forum.

(pp. 474-475)

117. Turning then to “How the principle is applied in cases of stay of proceedings”:

(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, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

…

(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. These are the factors which Lord Diplock described, in MacShannon's [1978] A.C. 795 case, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case, 1926 S.C. (H.L.) 13 concerning the H [SIC] use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." 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 (as to which see Credit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.

(pp. 476-477)

118. The above describes the “first stage” of Spiliada. Under the second stage:

(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; see the The Abidin Daver [1984] A.C. 398, 411, per Lord Diplock, a passage which now makes plain that, on this inquiry, the burden of proof shifts to the plaintiff.

(478C-E; the duplicate “the The” is in the original)

119. Turning then to “How the principle is applied in cases where the court exercises its discretionary power under R.S.C., Ord. 11” (now CPR 6.36-7):

.. the question in both groups of cases must be, at bottom, that expressed by Lord Kinnear in Sim v. Robinow, 19 R. 665, 668, viz. to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice. That being said, it is desirable to identify the distinction between the two groups of cases. These, as I see it, are threefold. The first is that, as Lord Wilberforce indicated, in the Order 11 cases the burden of proof rests on the plaintiff, whereas in the forum non conveniens cases that burden rests on the defendant. A second, and more fundamental, point of distinction (from which the first point of distinction in fact flows) is that in the Order 11 cases the plaintiff is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction. Statutory authority has specified the particular circumstances in which that power may be exercised, but leaves it to the court to decide whether to exercise its discretionary power in a particular case, while providing that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction:" see R.S.C., Ord. 11, r.4(2).

…

The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as of right.

…

It is also significant to observe that the circumstances specified in Order 11, r.1(1), as those in which the court may exercise its discretion to grant leave to serve proceedings on the defendant outside the jurisdiction, are of great variety, ranging from cases where, one would have thought, the discretion would normally be exercised in favour of granting leave (e.g., where the relief sought is an injunction ordering the defendant to do or refrain from doing something within the jurisdiction) to cases where the grant of leave is far more problematical. In addition, the importance to be attached to any particular ground invoked by the plaintiff may vary from case to case. For example, the fact that English law is the putative proper law of the contract may be of very great importance (as in B.P. Exploration Co. (Libya) Ltd. v. Hunt [1976] 1 W.L.R. 788, where, in my opinion, Kerr J. rightly granted leave to serve proceedings on the defendant out of the jurisdiction); or it may be of little importance as seen in the context of the whole case. In these circumstances, it is, in my judgment, necessary to include both the residence or place of business of the defendant and the relevant ground invoked by the plaintiff as factors to be considered by the court when deciding whether to exercise its discretion to grant leave; but, in so doing, the court should give to such factors the weight which, in all the circumstances of the case, it considers to be appropriate.

(pp. 480-482)

120. It may assist to tease out two of the strands of this reasoning.

121. First, the analysis of connecting factors is aimed at establishing what is the appropriate forum to try the case. It is not a blind assessment of factual connections. Legal connections can be central. Thus the “law governing the relevant transaction”, “could be of very great importance”.

122. Second, for the same reason, the assessment of connecting factors is not solely a question of “convenience or expense”. What matters is how the factors make a forum “more suitable for the ends of justice”. So the relevance of location should not solely be assessed by reference to practical advantages. It can be distinct to issues of convenience and expense (Spiliada 478A-B).

123. As Popplewell LJ explained in Limbu v Dyson [2024] EWCA Civ 1564: “The domicile of the parties … is, however, an important factor. The reason it is an important connecting factor in relation to jurisdiction is because presence here is the basis for establishing the court’s jurisdiction, and domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts …” That was said when considering the relevance of domicile in the context of service within the jurisdiction, but point that the location of the parties may matter for forum because it “connotes a degree of permanence and allegiance to the country’s institutions, including its courts” is of general significance. People are usually more likely to understand and be comfortable with their home country’s legal system compared to more alien systems.

124. It is worth adding a clarification about Popplewell LJ’s use of “domicile”. For appropriate forum, as Spiliada tells us, it is generally the place where the parties substantially “reside” or “carry on business” (478B), rather than technical domicile, that has weight. In Spiliada 481F, Lord Goff said that a technical residence like a tax haven would have little weight. Yet it was central to his approach that a real, substantial location would ordinarily have weight (Macsteel Commercial Holdings v Thermasteel [1996] CLC 1403, 1406-1407).

Specific factors

125. The relevance and weight of particular connecting factors depends on their interplay with the issues in the particular case, and is for the Judge to assess in all the circumstances (see Novus Aviation v Onur Air [2009] EWCA Civ 122 at [79], per Lawrence Collins LJ, and Spiliada at 481G, 482A). Extrapolations from the fact-specific reasoning in other decisions should therefore be handled with care. However, there is useful learning on central factors.

Applicable Law

126. There have been differences of emphasis as to the role and weight of the applicable law. But the essential modern principle is stated in Spiliada. The law governing the relevant transaction is generally a relevant connecting factor. Its importance depends on the circumstances, but it may be of very great importance: Spiliada 478B, 481G-H; Novus [74], [77], [79].

127. In VTB v Nutritek [2013] 2 AC 337, Lord Mance observed in a tort case: “The governing law, which is here English, is in general terms a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum” [46]. (See also Lord Clarke in the minority at [218]-[219]). An express contractual choice of law may confer additional weight to the law chosen.

128. The English courts, and the French courts, are well able to apply foreign law, and the English commercial courts have considerable experience in doing so. Yet a national court will in general be better placed to apply its own law than foreign law, in particular where complex legal issues arise: see Novus, [39]-[40]

129. In Macsteel, Sir Thomas Bingham MR observed that a choice of law “is a factor of importance, in particular, where there is some distinction or some arguable distinction between the law of the two competing jurisdictions.” Yet in the case before him “there is no suggestion in the evidence that the law of England and the law of Ontario are in any way different on the apparently straightforward issues raised by this dispute.” (p. 1407). Yet it was an error of principle to conflate a choice of law with a choice of jurisdiction. A jurisdiction clause is of very great weight, but a choice of law is not an implied choice of jurisdiction. By choosing English law but not including an English jurisdiction clause the parties have deliberately decided not to agree positively on English jurisdiction (pp. 1407-1408, also Millett LJ at p. 1408). They might even not have wanted English jurisdiction; although the more natural inference is usually that they have just left the question of jurisdiction open.

130. In The Channel Ranger [2014] 1 Lloyds Rep 337, [61], Males J said:

As for the significance of the express choice of English law, such a choice is capable of being a factor of significant and even decisive weight, particularly if the foreign court’s application of a different law would or might lead to a different result as that would be to deprive the claimant of the benefit of its bargain: The Lucky Lady [2013] EWHC 328 (Comm), [2013] 2 Lloyd’s Rep 104 at [28], where Andrew Smith J reviewed the applicable authorities, including the comments of Lord Mance in VTB Capital Plc v Nutritek International Corporation [2013] UKSC 5, [2013] 1 Lloyd’s Rep 466 at [46] …

131. Males J thought that, if the claim was to proceed in Morocco, it was likely that Moroccan law would be applied which would likely produce a different result. So “the need to litigate in a forum which would apply English law as the law expressly chosen” outweighed the location of witnesses and evidence: [62], [64].

132. In Novus, where there were disputes about formation, Aikens J had reasoned that because the issues were likely to include disputes as to the application of English contract law, the putative proper law of the contract, the choice of English law was a significant factor. The English courts would be better able to deal with those issues than Turkish courts: [39]-[40]. On appeal, Lawrence Collins LJ held this contained no error in principle [81]. He added that a choice of English law could be of particular significance if “the foreign forum, notwithstanding the express choice of English law, may instead apply its own law” [78].

133. In Macsteel, there is an observation by Millett LJ that the choice of English law was “not an insignificant factor and it could be decisive if the issue were otherwise nicely balanced as between England and some other jurisdiction. But I do not see how it can be decisive where the issue is not so balanced …” (p. 1409). This might suggest choice of law has limited force. But it was obiter, and not reflected in Sir Thomas Bingham LJ’s judgment with which Millett LJ agreed (Pill LJ agreed with both). It is inconsistent with Spiliada, and has not been picked up in the case law. When in Novus, [74], [79], Lawrence Collins LJ considered Macsteel, he did not pick up on these observations. Instead he took the Spiliada approach that the significance of the choice of law depends on the circumstances and issues, but could be of very great importance.

Lurssen

134. Nexans relied on FR Lurssen Werft v Halle [2009] EWHC 2607 (Comm). Simon J observed on forum:

(2) Where the only basis relied on by a claimant to establish jurisdiction is that the claim is made in respect of a contract governed by English law, particular caution will be required, and the burden on the claimant of showing good reasons justifying service out of the jurisdiction is a ‘particularly heavy one’: Ilyssia Compania Naviera SA v Bamaodah (The Elli 2) [1985] 1 Lloyd's Rep 107 at p.113, The Spiliada at p.479- 480 and Novus Aviation v. Onur Air Tasimacilik AS [2009] EWCA Civ 122, Lawrence Collins LJ at [32].

(3) Although different expressions have been used to characterise the nature of the jurisdiction, it is clearly recognised that it is an exceptional course to require a foreigner to litigate in the English Court purely on the basis that English law is the Governing law of the contract. It may be a less exceptional course, as Mr Thomas acknowledged, where there has been a choice of law under the Rome Convention.'

The Judge in Intralinks then said, at paragraphs 135 to 147:

'135. [Counsel for Nexans] relied on this to contend that, where Gateway 6(c) is the “only basis”, a claimant had to satisfy a “heavy burden”, and thus a higher threshold. However, in my view, these observations do not further Nexans’ case, and are not the law.

136. To begin with, such reasoning would only it seems apply where the sole gateway of jurisdiction is Gateway 6(c), or perhaps where English applicable law is the sole factual basis for saying England is the appropriate. Yet that is not so here. Intralinks has established two gateways, not just 6(c), and (as discussed below) relies on connecting factors beyond English law. Further, Simon J allowed the position might be different for an express choice of law, which is the case here.

137. Further, such dividing lines would be arbitrary. The gateways give a range of different connections. Some have lesser weight in themselves than choice of law. In principle, it does not seem justified to say that using the “English law” gateway alone should impose an unusual burden. The straightforward principle which the modern case law generally adopts is that, if any gateway is passed, the Court then considers all relevant connecting factors and gives them their appropriate weight, when applying the single test of whether England is the most appropriate forum. In doing so, a choice of English law can be a very significant factor.

138. Simon J cited The Elli 2 [1985] 1 Lloyds Rep 107, Spiliada, and Novus. But the archaeology of these cases reveals Simon J’s propositions are not now the law.

a) Their historical roots lie in Amin Rasheed v Kuwait [1984] AC 50. Lord Diplock described the English law gateway in Order 11 r.1(1)(f)(iii), as “exorbitant”. So leave to serve out under it should be exercised “with circumspection” (p. 65) and “The exorbitance of the jurisdiction sought to be invoked where reliance is based exclusively upon r. 1(1)(f)(iii) is an important factor to be placed in the balance against granting leave.” (p. 68). This could be outweighed if “justice could not be obtained by him in the alternative forum, or could only be obtained at excessive cost, delay or inconvenience”. But Lord Wilberforce adopted a different principle, holding in more modern terms that the correct approach was to look at all the connecting factors and ask whether there were good reasons to permit service out (p. 72D-F). The conflict between Lord Diplock’s approach and Lord Wilberforce’s then played out in the subsequent case law.

b) In The Elli 2, still before Spiliada, the focus was on whether Lord Diplock’s exceptions were the only possibilities. Ackner LJ concluded not: “Lord Diplock was emphasizing that where exclusive reliance is placed upon r. 1(1)(f)(iii) then the burden of showing good reasons justifying service out of the jurisdiction is a particularly heavy one, and he illustrated this by the examples which he gave of situations which were capable of taking tipping the balance. Thus constructed … there is no conflict between Lord Diplock’s statement and that of Lord Wilberforce …” (113rhc). By this he dissolved some of the rigidity of Lord Diplock’s approach but in doing so transmuted it into his “heavy burden” Yet when applying the law to the facts, he did not apply any constraining burden, and accepted the judge had been entitled to give conclude that the choice of English law, where the relevant issues were likely to turn on complex points of English law, was decisive. May LJ (pp. 118-119) took still a more circumspect approach to Lord Diplock’s observations, describing them as dicta and not a statute. The ‘heavy burden” language was not used. May LJ said merely that jurisdiction based solely on a choice of English law should be exercised with “considerable caution”.

c) In Spiliada, Lord Goff made clear that the old law was being departed from; and that he needed to resolve the differences between Lord Wilberforce and Lord Diplock in Amin Rasheed (473C-E, 475F-H). Turning to Elli 2, he interpreted it as adopting Lord Wilberforce’s reasoning not Lord Diplock’s (480C), and viewed Lord Wilberforce’s approach as close to the correct principle, but clarified the true modern principle as now being the doctrine of forum conveniens derived from Scottish law (480G-H), whose single core concept was to ask where the matter can most suitably be tried in the interests of justice. He cast doubt on Lord Diplock’s use of the word “exorbitant” as old fashioned (481E). Turning to gateways and connecting factors, he concluded: “the importance to be attached to any particular ground invoked by the claimant may vary from case to case”, including choice of English law, which “may be of very great importance”, but “the Court should give to all such factors the weight which, in the circumstances of the case, it considers appropriate” (481-482). Lord Goff does this elegantly, deftly and politely, but the result is Lord Diplock’s approach in Amin Rasheed is deliberately displaced, and so is any doctrine of “heavy burden” from Elli 2, or any particular “circumspection” in the use of the English law gateway. While Spiliada is a judgment of the Privy Council, it is accepted it states modern English law.

d) In the modern judgments of the Supreme Court, it has been made further clear that treating the gateways as exorbitant and governed by “muscular presumptions” against service out of the jurisdiction is an out-of-date approach: see Abela v Baadarani [2013] 1 WLR 2043 (SC), [53]; Brownlie v Four Seasons [2018] 1 WLR 192 (SC), [31].

e) Finally, [32] of Novus (CA) which Simon J also cites is not part of the Court of Appeal’s reasoning, but a paraphrase of Aikens J’s judgment, recording him as adopting Ackner LJ’s “heavy burden” approach. Yet that was not picked up by the Court of Appeal. At [73]-[74] Lawrence Collins LJ did not follow Lord Diplock’s reasoning in Amin Rasheed, and instead adopted the approach in Spiliada. This departs not only from Amin Rasheed, but also from the “heavy burden” approach in The Elli 2.

f) Thus, Spiliada and Novus, although cited by Simon J, in fact contradict the propositions quoted from Lurssen above at (2)-(3).

g) The modern cases do not adopt any logic of “heavy burden” and this aspect of Lurssen has not been followed. Indeed, in Lurssen itself, Simon J went on to weigh the importance of the choice of English law in a conventional way, and conclude that it was a key factor in showing England was the most appropriate forum: [53].

139. I conclude that the correct approach is stated in Spiliada. The test for forum is simply to ask whether England is clearly the most appropriate forum, taking into account all relevant connecting factors. There is no different burden or test, simply because Gateway 6(c) is the gateway relied on. The weight for forum of English law being the applicable law depends on all the facts and circumstances. But it can be very important.

The location and language of documents; the location and nationality of witnesses

140. The case law has explored the weight to be given to the language of documents and the nationality of witnesses. Again, it must be borne in mind the relevance of such factors is for the Judge in each case to assess in all the circumstances. However, the way in which this is done in other cases is instructive.

141. First, since the use of English in international commercial transactions is ubiquitous, the sole fact that documentation or negotiations are in English has been said to be not of great weight. See Novus [80]. Yet in other cases, the language of documents has been given greater weight. Even in an age of improved machine translation the need to engage with foreign language documents increases cost, complexity, and the risk of error. A judge has an advantage in understanding documents in her native tongue. The importance of the language of documents increases where issues may turn on the meaning of language. See Novus [80] referring to The Magnum [1989] 1 Lloyds Rep 47 (CA), 51; Joyvio Group Co Ltd v Moreno [2024] EWHC 2493, [87]-[88] (Nigel Cooper KC).

142. Second, it has been said that the location of documents and witnesses may matter less in modern circumstances than previously, given the easy use, storage and transferability of electronic documents, the ease of modern travel, and the availability of video-link: Cockerill J in Al Mana Lifestyle Trading v United Fidelity [2022] EWHC 2049 (Comm), [98]. This is particularly so for the physical location of documents: Joyvio at [87]. Nevertheless, the location of evidence and witnesses can remain relevant, as Spiliada envisages: see VTB at [62]. Modern technology shrinks distance but it cannot fully substitute for physical presence. For example, evidence in person is superior to examination through video-link.

143. In addition, the physical location of witnesses is not the only aspect of “where they are from” which matters. First, the native tongues and linguistic skills of the likely witnesses are relevant. Witnesses generally give better evidence in a language they are comfortable with, while the use of interpreters is costly, generally awkward and prone to error: see Joyvio at [87]; and VTB at [62]. So it is a factor in favour of a forum that the language of its courts is the one in which most of the likely witnesses are most comfortable.

144. Second, even independent of questions of language, as already discussed, people are usually more likely to understand and be comfortable with their home country’s legal system, or similar legal systems, compared to more alien systems. So the national culture of witnesses and their likely relative familiarity with the alternative possible legal systems can be a relevant connecting factor.

Overlapping foreign proceedings

145. The existence of overlapping proceedings in a foreign forum is a relevant connecting factor. Their force depends on the circumstances. This was common ground between the parties, although key authority was not cited. It is helpful to refer to the well-known leading judgment of Lord Goff in De Dampierre v De Dampierre [1988] AC 92, 108B-D, in which he held that overlapping foreign proceedings should be addressed within the Spiliada framework, and observed:

… the existence of such proceedings may, depending on the circumstances, be relevant to the inquiry. Sometimes they may be of no relevance at all, for example, if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction, or the proceedings have not passed beyond the stage of the initiating process. But if, for example, genuine proceedings have been started and have not merely been started but have developed to the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing effect, then this may be a relevant factor to be taken into account when considering whether the foreign jurisdiction provides the appropriate forum for the resolution of the dispute between the parties.

146. Other factors affecting the weight to be given to the foreign proceedings will include, I consider, the degree of overlap, the extent of substantial priority in time, the risks of a multiplicity of proceedings, and the risk of conflicting judgments.

147. In The Channel Ranger, Males J reasoned on the facts before him, at [60]:

While there have been cases in which multiplicity of proceedings has been a decisive factor against English jurisdiction, I regard the existence of proceedings in Morocco in this case as being of no weight (and therefore need not consider further the issue about the extent to which I am permitted to take those proceedings into account). They were commenced only after the defendants were served with the present proceedings, and well after the receiver at any rate was aware of these proceedings. If this court was the appropriate forum at the time when permission was granted for service out of the jurisdiction, at which time the Moroccan proceedings did not exist, I do not see how the defendants’ own decision to bring proceedings in Morocco (ex hypothesi not the appropriate forum in the absence of those proceedings) can alter this assessment. If the existence of proceedings in two different jurisdictions is a problem for the defendants, they have the remedy in their own hands, namely to discontinue the proceedings in Morocco and contest the merits here.'

On the facts, the Judge concluded that the clamant had '...satisfied Gateways 6(c) and 7 and shown that England is the proper place to bring the claim.' (paragraph 14). The Defendant's (Nexans') challenge, under CPR Part 11, to the jurisdiction of the (English) Court, failed. [bold added]