Toby Bishop successful in jurisdictional dispute in the High Court in Rehman v Hamid [2019] EWHC 3692 (Ch)

In Rehman v Hamid [2019] EWHC 3692 (Ch) Toby Bishop’s client succeeded in a forum non-conveniens and domicile dispute in the High Court.

Background

Mrs Ali was born in Lahore. She lived in England from 1965 until 2015 when she returned to Lahore. In 2017 the family she lived with arranged for her to execute a new will by which she gifted her estate to a child of the family.  She died 3 weeks later.

14 beneficiaries of an earlier will commenced a probate claim in Pakistan. Six months later a defendant to those proceedings commenced probate proceedings in England.  Toby’s client applied to stay the English proceedings on the grounds Pakistan was the more convenient forum.

The issues

In deciding whether Pakistan was the natural forum, the Court applied the factors summarised in Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460 (HL).  It was important that all of the parties with a beneficial interest in the litigation and the material witnesses were either in Pakistan or had filed evidence setting out their wish for the matter to be determined in Pakistan. Pakistan was found to be clearly and distinctly the more appropriate forum.

The Court resolved the domicile issues in favour of Toby’s client, determining the effect of partition on a person’s domicile of origin and offering useful guidance on the quality of evidence necessary to establish the acquisition and abandonment of a domicile of choice.

The Claimant fell back on his contention that substantial justice would not be available to him in Pakistan. The judgment records the Claimant’s “blistering attack on the Pakistani Judiciary” being founded on a witness statement from his advocate in the proceedings in Pakistan, who expressed the opinion that Pakistani Judges lacked expertise, made irrational orders and did not apply the relevant law. The Court was not persuaded by these “scurrilous” allegations.  The Court was assisted by the Supreme Court’s analysis in Vedanta Resources Plc & Anor v Lungowe & Ors [2019] UKSC 20 on the proper approach to such evidence.

Comment

The judgment highlights the peripatetic evidential burden running through cross-border estate disputes. This Defendant could not make out the acquisition of an English domicile of choice, notwithstanding 50 years unbroken residence in the jurisdiction. Perhaps unsurprisingly, the judgment makes clear that the Court would require clear and cogent evidence in support of an attempt to denigrate the courts of a foreign jurisdiction.

You can download a copy of the judgment using the link below.