In February 2017, the defendants’ VLCC Jag Laadki collided with the claimants’ LNG carrier Al Khattiya in a designated anchorage off Fujairah in the United Arab Emirates (UAE), causing substantial damage. The defendants accepted 100% blame for the collision, leaving quantum of damages as the only remaining issue. In March 2017, the claimants founded jurisdiction for their claim in England as of right by serving an in rem claim form on the Jag Laaki’s sister ship, the Jag Pooja, in Milford Haven. The judge noted that the right to found jurisdiction in this manner by serving on a vessel is a well-known and important feature of maritime law, which is applied around the world and is embodied in art 1 of the Collision (Civil Jurisdiction) Convention 1952.

The defendants sought to constitute a limitation fund before the Fujairah court. The UAE is a party to the unamended LLMC 1976 and has enacted a domestic limitation regime (art 141 of UAE Federal Maritime Law No 26 of 1981) that provides for a lower limitation amount - USD 14.7 million under the unamended LLMC 1976 and USD 5.4 million under the domestic statute. By contrast, the UK, which is a party to the LLMC 1976 as amended by the 1996 Protocol, provides for an applicable limit of USD 53.5 million. The defendants commenced two sets of substantive proceedings in Fujairah, first, to constitute a limitation fund and, second, to limit their liability to the LLMC 1976 limits. The defendants hoped to rely on the Fujairah judgment (if obtained) by way of res judicata in this action or in any other proceedings to enforce an English judgment. The Fujairah court rejected both cases on the basis that the provisions of UAE law which give effect to the LLMC 1976 do not apply to claims arising out of collisions. The Fujairah court also held that a limitation fund could not be established because of the lack of any formal rules or regulations to govern the establishment of such a fund in the UAE. The defendants appealed against these judgments.

In April 2017, shortly after the claimants found jurisdiction in England as of right, the defendants commenced an action in Fujairah claiming damages from the claimants and a declaration of non-liability from the collision (the UAE liability action). The claimants argued that the claim was hopeless, that it was not properly arguable that the defendants were entitled to the relief which they claimed in the UAE liability action, and that the defendants must have been aware of that at the time. 

The claimants applied for and obtained an interim anti-suit injunction requiring the defendants to discontinue the UAE liability action and preventing them from commencing further proceedings in Fujairah until final determination of the defendants’ jurisdictional challenge. The defendants duly withdrew the UAE liability action. They subsequently issued the current application seeking to set aside the anti-suit injunction, and to stay the English proceedings on forum non conveniens grounds.

Held: Defendants' applications for a stay on forum non conveniens grounds and for the anti-suit injunction to be set aside dismissed.

The Judge applied the two-stage forum non conveniens test set out in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 476 and concluded that the defendants had failed to establish that Fujairah is an available forum that is clearly or distinctly more appropriate than England for the trial of the issues of quantum and limitation, in the interest of all the parties and the ends of justice. The Judge also noted in obiter dicta (in relation to stage 2 of the test) that the diplomatic dispute between the UAE and Qatar, and the economic and criminal sanctions which the UAE has imposed as a result, did not mean that it would be unjust for the claimants, who are Qatari based, owned and managed, to be deprived of the right to trial in England. Such allegations must be supported by positive and cogent evidence (Abidin Daver [1984] AC 398 (CMI2222)). The Court was not satisfied that the claimants would not have received a fair trial in Fujairah.

The defendants argued that the anti-suit injunction should be set aside, and that an anti-suit injunction can only be granted on vexatious and oppressive grounds where England is the natural forum for the claim. In response, the claimants submitted that the underlying requirement, that the court should have a sufficient interest in or connection with the matter, may be satisfied in other ways, including by showing that the foreign proceedings interfere with the due process of the English court (The Western Regent [2005] 2 Lloyd's Rep 359 (CA) and Shell International Petroleum Co v Coral Oil Co Ltd [1999] 2 Lloyd’s Rep 606). The Court found it unnecessary to rule on the defendants’ contention as it have found that England is the natural forum. However, the Court agreed with the claimants and went on to reject the defendants’ contention for the reasons given by the claimants. Further, the Court found that the defendants were acting vexatiously and oppressively in commencing the UAE liability action. The defendants were 100% to blame for the collision and the claimants were under no liability to them.  At no stage had the defendants advanced any legitimate justification for seeking the relief sought. The proceedings were also separate from any attempt to limit liability, which was the subject of a separate petition and subsequent proceedings.