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Deripaska V. Cherney Notes

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FACTS ISSUES (1) If a court has concluded, in a leave to serve out case, that the natural forum is other
than England, is it open to the court still to find England the "proper forum", i.e. the
place where, in the interests of the parties and the ends of justice, the case should be
(2) If the answer to the first question is that the court can conclude England is the
"proper forum", in what circumstances can it so conclude and did the judge (a) direct
himself appropriately and (b) if so, did he have evidence, or evidence of sufficient
cogency, on which he could reach the conclusion he did?
ARGUMENT It is said by those representing Mr Deripaska that, having found Russia to be the
natural forum, that was the end of the matter and the court simply had no business
going into the question whether a trial would ever take place in Russia or as to
whether a fair trial could be obtained in Russia. That second question might be
relevant in a stay case, where the English court has jurisdiction and is considering
staying the action, but is not (so it is submitted) a question the court considers when
leave is being sought to serve out and the court has concluded that the natural forum is
not England. Mr Malek's argument involved suggesting that in that summary Lord Goff was
using the word 'appropriate' in the sense of 'natural'. His argument was that, once
the court had found that a plaintiff had failed to establish that England was the
"natural" forum, that concluded the position. He submitted that in a stay case once a
defendant had failed to show that another jurisdiction was the "natural" forum that was
the end and no second stage was necessary and thus he said the "obverse" of that was
that a conclusion that England was not clearly the natural forum concludes the
argument in a service out case. HOLDING If he is right, then the object (as Lord Goff put it "at bottom") of achieving the forum
in which the case can be tried "for the interest of all the parties and for the ends of
justice" will, in many service out cases, not be achieved. It is unlikely Lord Goff
intended that and in my view it is clear he did not. Certainly if the natural forum was
unavailable that would provide a strong basis for the court giving leave to serve out,
but that is not the limit of the court's powers. Furthermore Lord Goff was not using the word "appropriate" in the sense
simply of "natural". The use of the word "appropriate" as opposed to "natural"
in that summary was, I think, deliberate. In the summary Lord Goff has not gone
through a two­stage process; he has gone straight to what is the ultimate question -

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