Al Assam and Ors v Dimitrios Tsouvelekakis
Acting on behalf of the Claimants, Simon Adamyk and Jessica Powers have successfully opposed an application to stay a multi-million dollar claim on forum non conveniens grounds.
The First and Second Claimants are the settlors of two Cypriot trusts, the AAA Trust and the Hamza Trust. The First to Eight Claimants are all members of the same family and are the beneficiaries of one or both of the trusts. The Ninth and Tenth Claimants are, respectively, a Panamanian companywhose share are wholly owened by the AAA Trust, and a BVI company whose shares are wholly owned by the Hamza Trust.
In late 2021, the Claimants issued proceedings against the Defendant, alleging that he has caused them loss by reason of:
(1) His negligence in giving poor investment advice to the trustee of the trusts and causing the trusts of make poor investments.
(2) His breach of fidcuciary duty in advising the trustee to make, and causing the trusts to make investments when he had a conflict of interest.
(3) His deceit, namely providing a number of false portfolio reports to the First and Second Claimant, and making other false misrepresentations.
(4) His dishonest assistance in the trustee’s breaches of trust.
(5) His breach of two contractual powers of administration granted in respect of the Ninth and Tenth Claimants’ Swiss brokerage accounts.
The proceedings were served on the Defendant in England as of right. The Defendant then issued an application persuant to CPRr.11(1)(b) seeking a stay of proceedings on the grounds that Cyprus was clearly or distinctly the more appropriate forum.
It was common ground that the Court was required to determine the application on common law principles, as, following the UK’s departure from the EU, the Recast Brussels Regulation (Regulation (EU) No 1215/2012) no longer applies. Judge Jonathan Richards therefore applied the two limbs of Spiliada Maritime Corporation v Cansulex Limited  1 AC 460.
The Judge firstly concluded that Cyprus was an available jurisdiction. Under Cypriot law, both “international jurisdiction” (pursuant to the Cypriot rules of private international law, which include the Recast Brussels Regulation), and “territorial jurisdiction” (pursuant to the Cypriot Courts of Justice Law) must be present. The Judge was satisfied by both parties’ expert evidence that it was more likely than not that the Cypriot courts would have international and territorial jurisdiction.
With respect to the various factors relevant to the question of whether Cyprus was clearly or distinctly a more appropriate forum, the Judge held as follows:
(i) The Defendant’s residence remains of some significance, even absent the presumption under the Recast Brussels Regulation that a defendant should be sued in their home court.
(ii) The case concerns an “international transaction”, such that the fact that some or part of some of the Claimants causes of action occurred in Cyprus was not a pointer towards Cyprus being a more appropriate forum.
(iii) Matters of practicality, such as the location of witnesses, the need for translations of documents and/or evidence, and the need for expert evidence were balanced, and so did not point in favour of Cyprus being a more appropriate forum.
(iv) That the majority of the Claimants’ causes of actions were likely governed by Cypriot law was only a relatively slender indication in favour of Cyprus, given that Cypriot law is similar to English law in the relevant respects. The Judge also noted that expert evidence would still be required as to Swiss law in either jurisdiction.
(v) The overall shape of the litigation did not indicate that Cyprus was the more appropriate forum. That conclusion was not affected by the possibility that the Defendant may bring a contribution claim against the trustee, who is domiciled in Cyprus.
The Judge therefore concluded that the application should be dismissed on Limb 1 of Spiliada.
He nevertheless went on to consider Limb 2 of Spiliada. The Judge concluded that the divergence of expert opinion as to the delays in proceedings in Cyprus meant that he could not find that Cyprus would not deliver the Claimants justice. He also rejected the submission that a limitation issue in respect of one cause of action, which would arise if the Claimants were required to commence proceedings in Cyprus, was sufficient to justify a refusal of a stay under Spiliada Limb 2.