In response to a recent case, SFE have put together a handy reference for dealing with a cross- border estate, including where the probate proceedings should take place.
We’ve collated the five basic principles that SFE suggest:
1. The basic principle is that a stay will only be granted on the grounds 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.
2. The burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. However, in the event that a party sought to show that a particular factual circumstance was a relevant factor in support of or against a stay, the burden was on that party to make that out on the facts.
3. The burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.
4. The ‘natural forum’ is the one with which the action has the most real and substantial connection. Connecting factors include not only factors affecting convenience or expense (such as the availability of witnesses) but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business.
5. If the court concludes 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 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) that the plaintiff will not obtain justice in the foreign jurisdiction.
Please get in touch with us if you have any questions, or would like any further information. You can read the original article here: https://sfe.legal/high-court-contentious-probate-rehman-v-hamid-2019-ewhc-3692/.
Categorised in: SFE
This post was written by Caitlin Roxburgh