The claimant, a former Saudi national, commenced proceedings against the defendant Saudi nationals, her siblings, in England for breach of a share transfer agreement and for unlawful means conspiracy. The claimant had served the third defendant personally at Heathrow Airport; the third defendant was therefore the “anchor” defendant for the purposes of obtaining permission to serve the first and second defendants out of the jurisdiction. The third defendant argued that the claim against her in England ought to be stayed in favour of Saudi Arabia on forum non conveniens grounds. The first and second defendants argued that the permission to serve them out of the jurisdiction ought to be set aside because Saudi Arabia or Jordan (to the courts of which all defendants had agreed to submit) was the appropriate forum in which to resolve the dispute.

Decision: The defendants’ applications were refused.

Held: The overarching question to be asked when applying the second stage of the test from Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) 2 is whether there is a real risk that the claimant will not obtain justice in the foreign court. The English court will scrutinise anxiously allegations that the claimant will not be able to obtain justice in the foreign forum, given the potential of such allegations to offend comity. When considering a case in which the defendant seeks to set aside the grant of permission to serve them out of the jurisdiction, the question whether England is the proper forum falls to be determined at the date when permission to serve out was given rather than the date of the forum non conveniens application but subsequent events may shed light on the position at the time permission was granted. The claimant in the present case had demonstrated that there was a real risk she would not be able to access justice in Saudi Arabia and Jordan was not an appropriate forum in which to try the claims.

Comment: Al-Aggad may be described as a mixed case: one in which the court must consider both an application to stay proceedings begun as of right in England and an application to set aside permission to serve defendants out of the jurisdiction. Cockerill J’s judgment repays careful study, settling, as it does, the answer to questions which can arise