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29 April 2004
A recent case in the British Virgin Islands (BVI) regarding a successful forum non conveniens application raised the question of who bears the burden of proving allegations that the claimant is unable to obtain justice in the jurisdictional court.
The general principles of such applications are well established, and the BVI courts follow the two-stage process set out in Spiliada Maritime v Consulex (1987/AC/460) and most recently in Bitech Downstream v Rinex Inc.
In the first stage, the defendant has the burden of satisfying the court that the BVI is not the natural or appropriate forum, and that a foreign jurisdiction is distinctly more appropriate. If the defendant fulfils this test, the burden shifts to the claimant to prove any special circumstances in which justice requires that the trial remain in the BVI.
In the case at hand the BVI court had to decide at what stage it was appropriate to consider allegations that the action could not be tried fairly in the foreign court and hence who bore the onus for this allegation. The claimant argued that Mohammed v Bank of Kuwait (1996/1/WLR/1483) is the authority, suggesting that allegations of unavailability, in the sense that justice could not be obtained, should be taken at the first stage, with the claimant thus responsible for proving that the foreign court was fair. However, Justice Rawlins preferred Lord Justice Tuckey's dictum in the British Court of Appeal in Askin v Absa Bank (February 23 2000), which indicated that the Mohammed Case was unique and so the claimant bore the burden of the very serious allegations it had made at stage two of the test.
Furthermore, Rawlins found that the claimant’s evidence fell far short of the evidence that would be necessary for him to find for the claimant. Rawlins therefore granted the stay in favour of the foreign court.
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