The Judicial Committee of the Privy Council Decisions

Hindocha & Ors v. Gheewala & Ors (Jersey) [2003] UKPC 77 (20 November 2003)

ADVANCE COPY

Privy Council Appeal No. 27 of 2002

Mukta Gokaldas Hindocha (widow of C.S. Gheewala) and

Others Appellants

v.

Mahesh Shamjibhai Juthabhai Gheewala and Others Respondents

FROM

THE COURT OF APPEAL OF JERSEY

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th November 2003

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Sir William Aldous

[Delivered by Lord Walker of Gestingthorpe]

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1. In a well-known passage near the end of his speech in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 465, Lord Templeman said of an application for a stay on the grounds that the case should be heard in a more appropriate forum:

"I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere".

This litigation is regrettably far from Lord Templeman's ideal. It is an appeal from the Court of Appeal of Jersey which on 17 June 1999, after a three-day hearing, allowed an appeal from an order made on 16 July 1998 by the Royal Court, granting a stay of the action on the ground of forum non conveniens. The hearing before the Royal Court had occupied most of three days. The action had been commenced on 4 February 1997 and the application for a stay was made on 11 March 1997. More than six years have therefore been occupied in a dispute as to whether the action should be heard in Jersey or in another jurisdiction – that is, Kenya. That is the only issue on this appeal.

The facts in outline

2. The record in this appeal is voluminous and the background facts are complicated. But for the limited purposes of the appeal the facts can be stated reasonably shortly. The plaintiff in the action, and the only active respondent to the appeal, is Mahesh Shamjibhai Juthabhai Gheewala ("Mahesh"). He is the second (and eldest surviving) son of Shamjibhai Juthabhai Gheewala ("the grandfather") who had six sons (apart from one who died in infancy) and seven daughters. The grandfather died in 1965 domiciled in Kenya. He and his wife (who died in 1988) had come to Kenya from India during the 1920s, and had settled with a house in Nairobi in the 1940s. They and their family engaged in various business enterprises in East Africa (and, later on, in other parts of the world). Their enterprises seem to have prospered greatly, although no clear evidence as to the value of the family fortune, or its geographical spread, was placed before the Royal Court. The Board declined to receive some very late evidence on these matters which Mahesh sought to put forward.
3. The state of the family, so far as material, can be summarised as follows (without setting out all their names at length). The grandfather's eldest son, Chandrakant, died in 1984. His widow, Mukta, is the second defendant in the action and the first appellant before the Board. Chandrakant and Mukta had two adult sons, Elesh and Shrikesh, and one adult (and married) daughter, Mamta. They are respectively the eighth, ninth and tenth defendants and are also appellants.
4. The grandfather's third son, Bhupendra, died in 1983, leaving a widow, Aruna, who has obtained a grant of representation to his estate in Jersey. She is the third defendant in the action. The grandfather's fourth, fifth and sixth sons (all in their early sixties) are Madhu, Kirti and Bharat. They are the fourth to sixth defendants respectively. The seventh defendant, Rajani, is a grandson of the grandfather tracing descent through his mother, Keserben, who died in 2000. He has been joined in the proceedings, even though he traces his descent through a female, because of the "structure formula" agreed in 1974 as mentioned below.
5. The only party to the action which is not a member of the family is a trust company incorporated and carrying on business in Jersey, Compendium Trust Company Limited ("Compendium"). It is in form sued as Mukta's attorney in the administration of Chandrakant's estate. It is the first defendant in the action. Compendium, Aruna, Mukta, Kirti, Bharat and Rajani have been made respondents to the appeal but none of them has appeared either personally or by counsel.
6. The issue raised in Mahesh's action is, in the broadest possible terms, as to the beneficial ownership of the Gheewala family fortune. This issue is given some (but less than complete) definition in Mahesh's order of justice commencing the proceedings. It pleads in paragraph 2 that until his death the grandfather "was the 'Karta' and manager of the joint Hindu family" and that he was succeeded by his eldest son, Chandrakant. The order of justice then pleads (in para. 3, without further explanation) that after the grandfather's death,

"The coparcenary, for the purposes of the principles of the joint Hindu family, consisted of Chandrakant (including his son), the plaintiff, Bhupendra, Madhu, Kirti and Bharat (being the six sons of [the grandfather])".

This pleading is not self-explanatory. Some of the evidence before the Royal Court (in particular an affidavit of Prafulchandra Bhagwati, a retired Chief Justice of India) indicates that a Hindu coparcenary is a narrower concept, comprising fewer individuals, than a Hindu joint family.

7. The Court of Appeal expressed the view that the evidence for the existence of a Gheewala joint Hindu family was "almost overwhelming" and that it would have been possible to obtain summary judgment to that effect. Their Lordships consider that there is indeed strong evidence that the family adopted some form of pooling of their assets (a form which may have changed from time to time), but both the legal basis of the original pooling, and the effect of various subsequent events, appear to raise questions of law and fact of some difficulty. Their Lordships were referred to the decision of the Court of Appeal for Eastern Africa in Damji v Damji (1955) 22 LR EACA 162, a case concerned with an alleged joint Hindu family in Tanganyika under legislation similar to that in force in Kenya. Under that legislation Hindu law may apply as part of the Kenyan law of succession (an expression which was widely construed in Damji). However it is unnecessary to go further into those issues which will need to be fully explored at trial.
8. Events subsequent to the grandfather's death are described in the judgments below and for present purposes it is sufficient to identify the most important of them.

(1) According to Mahesh's order of justice (para. 9), in 1970 there was a partial division of assets between Chandrakant, Mahesh "and other coparceners". No details of assets or values have been given. Other parties dispute both the fact of the division and its legal effect on the undistributed assets.

(2) It seems to be common ground that in 1974, after discussions between the grandfather's six sons, a "structure formula" was agreed (although again there are differences as to its legal effect). It is pleaded as follows in the order of justice (para. 11):

"... it was agreed that in the event of the partition of the joint Hindu family, the individual shares of the coparceners (including their family members) and Rajani was as follows: Chandrakant and his family 25%; the plaintiff and his family 20%; Bhupendra and his family 16%; Madhu and his family 16%; Kirti and his family 10%; Bharat and his family 10%; Rajani and his family 3%. It was acknowledged that this division was not the same as a division between coparceners of joint family property in accordance with Hindu law, but this formula, known as the structure formula was what was agreed. However, pending any such partition all joint family properties were held in equal and undivided shares."

Rajani, although the son of a daughter of the grandfather, was included because of his active participation in some of the family businesses.

(3) Some of the parties contend that Mahesh left the joint family in 1976. Mahesh has simply denied this allegation (in his second affirmation, para. 21).

(4) In about 1978, differences arose between Chandrakant and Bhupendra. This led to a process of mediation conducted in London by Professor Tandon, an old family friend (who lived in East Africa but came to London for the mediation). His efforts led to an agreement signed on 8 July 1979, but almost immediately Bhupendra repudiated it on the ground of non-disclosure by Chandrakant. Bhupendra started proceedings in the English Commercial Court, but the proceedings were still on foot when Bhupendra and Chandrakant died in successive years. In 1985 their two widows compromised the proceedings, but the compromise did not bind any other members of the family.

(5) In 1985 Bhupendra's widow, Mukta, applied in Jersey for letters of administration on the basis that Bhupendra had died intestate (although he had made at least one will which Mukta would be likely to have known of). Compendium (which was already involved as trustee of a settlement made by Chandrakant) acted as Mukta's attorney. Mahesh intervened in the proceedings and obtained an injunction holding up the grant of representation.

(6) In 1986 Mahesh also commenced two sets of legal proceedings in Kenya. He sued Aruna for specific performance of an alleged oral contract; those proceedings are now dormant. He also cited Mukta in relation to probate of Chandrakant's will; nothing came of those proceedings until 1994.

(7) In 1994 Mukta applied to the Kenya High Court for probate of Chandrakant's will. Mahesh lodged an objection and also made a cross-application for probate, and Madhu, Kirti and Bharat also filed documents. On 14 February 1996 Pall J ruled that the proceedings must be limited to issues in the probate action, and could not be expanded so as to extend to disputes as to the joint family property. Mahesh gave notice of appeal, but later abandoned his appeal.

The proceedings in the Royal Court

9. Mahesh's order of justice sought a variety of reliefs, consisting of disclosure of information and documents, declaratory relief, accounts and orders for transfer of whatever was found to be due to him. On the same day (4 February 1997) as the order of justice was issued, Mahesh obtained leave from the Royal Court to serve the proceedings out of the jurisdiction on all the defendants except Compendium (for which no leave was needed). None of the defendants applied under Rule 6/7A of the Royal Court Rules, 1992, to set aside the service. The effect was (under Rule 6/7 A(8)) that in due course they were deemed to have submitted to the jurisdiction of the Royal Court. Nevertheless on 11 March 1997, Mukta and Elesh issued a summons to show cause why the action should not be stayed on the ground of forum non conveniens. Shortly afterwards Madhu and Bharat issued a similar summons, but in the event they did not proceed with it. Before the Royal Court their advocate rested "à la sagesse de la cour".
10. Aruna put in an answer pleading the compromise agreement dated 13 December 1985 between the two deceased brothers' widows, that is Mukta and herself. Her answer and counterclaim alleged that Mukta had been prevented from implementing the compromise by Mahesh's intervention in the Jersey proceedings relating to Chandrakant's estate, especially in relation to what were referred to as Bhupendra's Guernsey funds (identified with some precision in the pleading). The counterclaim sought relief in the following terms (which have assumed unexpected importance):

"that the Plaintiff and the other Defendants be ordered to effect to the extent that is within their power, the release of Bhupendra's Guernsey funds ..."

Aruna and Mahesh subsequently reached agreement embodied in an order of the Royal Court dated 31 July 1998. It is in 'Tomlin' form and so the substance of the terms of compromise have not been disclosed.

11. The summons for a stay was heard by the Royal Court during the first week of May 1998. Judgment was reserved and given on 16 July 1998. After summarising the facts, the Bailiff set out the relevant legal principles (which at that stage appeared to be common ground) and stated the two issues which emerged:

"(1) Is Kenya clearly a more appropriate forum than Jersey in which to try the action between the parties? Counsel on all sides accepted that in relation to this issue the burden lay on the applicants ie [Mukta and Elesh].

(2) If Kenya is clearly the more appropriate forum, are there circumstances, namely uncertainty as to the independence of the judiciary, which suggest that the plaintiff may not obtain justice in that country? Counsel again agreed that in relation to this issue the burden lay upon [Mahesh]."

This formulation echoes paragraphs (a) and (f) of Lord Goff's classic summary in Spiliada at pages 476-8.

12. After summarising the advocates' submissions the Bailiff proceeded as follows:

"We have given careful consideration to all these submissions. We have no doubt that the substance of the action is more closely connected with Kenya than with any other jurisdiction. It seems to us that the substantive issues, ie were the Gheewalas a Hindu joint family, and, if so, how were the assets of the family held, are far better determined in the Kenyan courts. Kenya recognises the applicability of Hindu law in certain circumstances, and even if cases involving issues of Hindu law are not frequent, there will at least be a general understanding of the Hindu community and their customs within the court. A Jersey court would require expert evidence as to the laws and customs of the Hindu community and would lack that inherent knowledge as to the ways of that community which will exist in Kenya. Furthermore, it seems to us likely that factual issues involving the early history of the Gheewala family, will be easier to resolve in the country or area where the family fortune was substantially made. All the parties to the action except the first defendant are Hindu by birth. On balance we think that the arguments as to convenience and expense also point towards Kenya. We agree with counsel for the applicant that the connection with Jersey is tenuous. The narrow issue involving the first defendant [Compendium] can quite easily be disposed of in Jersey once the substantial issues have been resolved in Kenya."

13. The Bailiff then went on to the second issue, as to whether Mahesh would get justice in Kenya. Before the Royal Court Mahesh relied on material indicating a lack of integrity in some parts of the Kenyan judiciary, especially at lower levels. This material (although given some weight by the Royal Court) was not treated as decisive. It was not relied on before the Court of Appeal, nor has it been relied on before the Board. It is not therefore necessary to say any more about it, or about recent events affecting the judiciary in Kenya. The Royal Court accordingly granted Mukta's and Elesh's application for a stay.

The Judgment of the Court of Appeal

14. In June 1999 the Court of Appeal (Lord Carlisle of Bucklow PC, QC, Mr R C Southwell QC and Mr J B Goldring QC) heard Mahesh's application for leave to appeal and his appeal. At the end of the hearing the Court announced that it gave leave to appeal and stated that the appeal would be allowed for reasons to be given in writing. The reasons (prepared by Southwell JA) were critical of the Royal Court on several points. The Court of Appeal thought that the Royal Court had failed to consider the separate position of each of the defendants; in particular, that it had ignored the significance of Aruna's counterclaim, failed to clarify the position of Madhu and Bharat, mis-stated the position of Kirti and failed to take account of the position of Compendium as a Jersey company; that it had given insufficient consideration to where the parties are resident; and that it had given no consideration to whether they could be made parties to an action in Kenya, or to requiring from them undertakings to submit to the jurisdiction of the court in Kenya.
15. The judgment concluded that it was open to the Court of Appeal to exercise its own discretion, and that it should do so by lifting the stay. The reasons for this conclusion are set out in thirteen numbered paragraphs, near the end of the judgment, which should be set out in full:

"(1) Compendium is a Jersey company. Mahesh, Aruna, Madhu, Kirti and Bharat live in England. Mukta and her children, Elesh, Srikesh and Mamta, and Rajani live in Kenya. Mukta and her children have a home in England, to which Mukta and Elesh appear to come not infrequently. All the parties except Compendium are domiciled in Kenya.

(2) The assets in dispute are, as already stated, primarily in countries in East Africa, Europe and North America. The parties to the appeal were not able to give us any breakdown by value showing the value of assets in each area. But it is clear that there are substantial assets in each area, and that in Europe there are substantial assets in the Channel Islands, including the Slamat Corporation already referred to.

(3) From the evidence before this Court it appears that the documents relating to such assets are primarily to be found in or near the places where such assets are.

(4) In so far as connections exist with London or England, it appears to be common ground that these connections are to be weighed in favour of Jersey rather than Kenya.

(5) When the family wished to resolve their disputes with Bhupendra, they arranged for the Tandon process to take place in London, not in Kenya or elsewhere in East Africa. The proceedings brought by Bhupendra in connection with the Tandon process were brought in London.

(6) After Chandrakant's death, though he lived, was domiciled and died in Kenya, Mukta sought to administer his estate in Jersey, not in Kenya. That led to the proceedings brought by Mahesh in Jersey to restrain issue of the letters of administration. It can be said with some force that Mukta, having come to the jurisdiction of Jersey to establish the right to administer Chandrakant's estate, is not in a strong position to complain of this action having been brought by Mahesh in Jersey.

(7) On the other hand Mahesh chose to lodge a citation in the Kenya High Court in respect of his intention to prove the will of 28 August 1974, and when Mukta sought a grant of probate of the will of 4 May 1976 in Kenya, Mahesh chose to attempt to raise questions of joint family assets in the Kenya proceedings, and when Pall J had rejected that attempt, sought to appeal until the inconsistency of his stance was relied on by Mukta and Elesh in relation to the present action.

(8) Compendium was duly served in Jersey. The other defendants were served out of the jurisdiction, but have accepted the jurisdiction of Jersey and have not applied to set aside the service out.

(9) In the absence of suitable undertakings which have not been offered, there must be doubt as to whether Mahesh could successfully serve Kenyan proceedings out of the Kenyan jurisdiction on those defendants not in Kenya.

(10) We refer to, but do not repeat, what has been said above concerning the position of each of the defendants, and especially Aruna.

(11) No question of Kenyan law arises. Hindu law is a system of religious law not tied to any particular forum. Given the limited extent to which questions of the Hindu law are likely to arise, it is plain that the Jersey Royal Court will be as well placed as a judge in Kenya to decide such questions of Hindu law as do arise.

(12) Though general reference was made by Advocate Thompson to the need for evidence of persons other than the parties to the action from Kenya, this was not founded on any specific evidence as to the identity of any such persons. We consider that the principal witnesses will be the surviving sons of the Grandfather, together with Muktu, Aruna, Elesh and Rajani.

(13) If the issues concerning the joint Hindu family and its assets are decided in Jersey, there will be no question of the same issues being tried again in Kenya, as Advocate Thompson attempted to suggest."

16. It would be logical to start with the Court of Appeal's criticisms of the Royal Court, since if the Royal Court did not make some significant error of principle in exercising its discretion, there was no need or room for the Court of Appeal to exercise its discretion anew. However there are three general points, relevant both to the Royal Court's reasoning and to that of the Court of Appeal, which can conveniently be mentioned at once. First, the Court of Appeal attached importance to the joinder of Compendium as a party, and impliedly criticised the Royal Court for not taking it sufficiently into account. But the Royal Court must have accepted the submission (supported by the affidavit of Mr J H Perkins, a senior manager with Compendium) that that company was not really a necessary party to the action, and its position as a fiduciary could easily be resolved after the substance of the dispute had been litigated in Kenya. Their Lordships consider that the Royal Court was right to accept that submission. Indeed they are inclined to regard the selection of Compendium as the first defendant to the action as a tactical move designed to give apparent substance to a connection with Jersey which was in truth extremely tenuous. It is clear from the evidence that there are other fiduciaries in other jurisdictions which have interests comparable to (and possibly greater than) that of Compendium, but which Mahesh has made no attempt to join as parties.
17. Secondly it would in their Lordships' view be quite wrong to treat proceedings in Jersey as if they were proceedings in England. If Mahesh had brought his proceedings in England (as Bhupendra did after the breakdown of the Tandon mediation) it might have been very difficult for any defendant to establish that Kenya was clearly a more appropriate forum than England, especially as so many of the parties are resident, either permanently or intermittently, in England. But Jersey is a different jurisdiction with a different system of law, including a different system of trial of civil actions (normally by a judge sitting with two jurats). The fact that Jersey is fairly close to England geographically, and has reasonably good communications with England, cannot lead to it being treated as if it were merely an extension of the English forum.
18. Thirdly, the argument (pressed on their Lordships as it was on the courts below) that the Gheewala family is an international family with international assets, no longer tied to its Kenyan roots, tends to cut both ways. Although all parties refrained from putting in evidence about the value of the family assets, it is clear that their value must be very great. The order of justice lists 39 East African companies, 18 United Kingdom companies, and about 30 other companies or similar entities incorporated in the Channel Islands, Switzerland, the Cayman Islands or Canada. Other exhibited lists produce slightly different totals, but do not alter the general picture. The family are used to travelling and appear to have ample means to travel in comfort. The only independent expert witness so far identified (indeed, the only witness of any sort outside the family), Mr Bagwati, is in India and can travel to Kenya at least as easily as to Jersey.
19. The Court of Appeal's main criticism of the Royal Court was centred on what the Court of Appeal saw as its failure to focus on the separate interests and views of the different defendants. This criticism seems to have originated from the Court of Appeal itself, rather than being based on a submission from any of the advocates. There are well-known dangers in an appellate tribunal focusing on a point which has not been taken below, and is first raised by the tribunal itself. In their Lordships' view the criticism, although not wholly unfounded, was exaggerated. Their Lordships have already addressed the position of Compendium. Aruna's original position was that she wished to counterclaim in Jersey in order to implement her long-standing (but still uncompleted) compromise with Mukta, but there is no reason to suppose that her claim was not, for practical purposes, satisfied by the confidential terms of compromise which she agreed with Mahesh soon after the decision of the Royal Court. Her counterclaim did formally seek relief against the other defendants (as well as Mahesh) but that seems to have been a formality. Her failure to take action under Rule 6/10(7), which was rather brushed aside by the Court of Appeal, tends to confirm that her counterclaim is no longer of any practical importance.
20. Apart from the issue of the jurisdiction of the Kenyan court (to which it will be necessary to return) their Lordships see no particular ambiguity or difficulty about the position of Madhu and Bharat. They decided not to proceed with their separate application for a stay and to adopt a neutral attitude. Any mis-statement of Kirti's position is regrettable, but understandable in the course of a complex hearing before the Royal Court in which some of the parties made last-minute changes of position. Moreover although the Royal Court did have to consider the interests and views of each of the defendants, it had in the end to form its own view about what course would best serve the interests of justice. It would not have made sense to grant a stay to some defendants and to refuse it to others. If this unfortunate family dispute must be litigated (and their Lordships were told that there have been recent attempts, so far unsuccessful, at mediation) then it must be determined as a whole in one jurisdiction or the other.

Kenya as an available forum

21. On the hearing of this appeal another new point has emerged. In her economical oral submissions to the Board Miss Dohmann QC (for Mahesh) submitted that the Court of Appeal had shown a very proper grasp of the facts, and had been realistic in its approach. After addressing the manner in which the defendants (other than Compendium) had been brought before the Jersey court she addressed the converse situation and submitted that there was no evidence that Madhu and Bharat (who both live in England) would submit to the jurisdiction of the Kenyan court. The Kenyan court might give leave to serve process on them out of the jurisdiction, but nevertheless they might decide not to appear in Kenya, so raising doubts as to the enforceability (outside Kenya) of any order against them. Although not (as their Lordships understand it) fully supporting the Court of Appeal's reasoning in its paragraph (9) (set out in para. 15 above) Miss Dohmann argued that Madhu and Bharat had not, on the evidence, submitted or undertaken to submit to the Kenyan court.
22. This is potentially a point of some importance, since it is clear that an alternative forum is not available (in the relevant sense) unless it is open to the plaintiff to institute proceedings as of right in that forum (for the law as it stood in 1999 see Dicey and Morris, The Conflict of Laws 13th (2000) edition, para. 12–023). But this topic has recently been reviewed (as noted in the second supplement to Dicey and Morris, para. 12–023) by the House of Lords in Lubbe v Cape Plc [2000] 1 WLR 1545. The House upheld the general principle that an available forum must be one in which the plaintiff can sue as of right, but treated an undertaking to submit to the alternative jurisdiction (in that case, an undertaking by the English holding company to submit to the jurisdiction of the South African court) as sufficient to show that the forum is available even though given after the application for a stay. After referring to a number of Scottish authorities including Sim v Robinow (1892) 19 R 665, Lord Hope of Craighead said at pages 1565-6:

"In the light of these authorities I would have regarded the undertakings which were offered by the defendant in this case as sufficient to satisfy the requirement that the alternative forum in South Africa was available because it had undertaken to submit to the jurisdiction of the courts of that country. Nothing turns on the time when the undertakings were given. It is sufficient that they were before the judge when he was considering the question of forum non conveniens. As for the suggestion that the defendant was choosing its jurisdiction and thus indulging in a kind of forum shopping, this overlooks the fact that the issue as to forum non conveniens is for the court itself to resolve. It is not a matter that is left to the choice of the defender. Furthermore, the court resolves the issue by looking to the interests of all parties and the ends of justice."

Lord Bingham of Cornhill expressly agreed (at page 1556) and the other members of the House agreed with both Lord Bingham and Lord Hope.

23. This point has however surfaced only at a very late stage in this protracted litigation. Before the Royal Court there was agreement as to the applicable principles of law, and no point seems to have been taken as to which of the defendants Mahesh would be able to sue as of right in Kenya. The main issues were as to the relative substantiality of the connections with Jersey and Kenya, the conduct of the parties, and whether Mahesh would or might be deprived of a fair trial in Kenya. Mr O'Connell (the advocate for Mahesh) is not recorded as having put forward any argument about the jurisdiction of the Kenyan court. When the matter came to the Court of Appeal, each side put in lengthy written submissions (each running to about 100 pages) but the main issues addressed were those already mentioned. Much of the written submissions consisted of analysis of a volume of rather tendentious affidavits and affirmations, and of (in Lord Templeman's words) "other decisions on other facts". So on this point, as with its concern about the parties' individual interests, the Court of Appeal was raising an issue not raised by the parties; and on this point (unlike the individual interests) its discussion was rather inconclusive. The point was addressed, but only briefly, in the parties' printed cases before the Board (see para. 40 of the appellant's case dated 4 August 2003, and paras. 12 and 43 of the first respondent's case dated 8 September 2003).
24. When a new point emerges at a late stage it may create real difficulty, especially if it is not a pure issue of law. An application to stay proceedings is essentially a matter of case management (however important the outcome may be to the parties) and (in line with Lord Templeman's observations in Spiliada) it has to be disposed of in a reasonably summary way. The court must be able to decide the issue on the evidence and arguments placed before it. If this point had been raised before the Royal Court, it might well have been argued that the decision of Madhu and Bharat to rest "à la sagesse de la cour" amounted to an implied submission to the jurisdiction of the Kenyan court. Ramesh Manek (a Kenyan lawyer related to the family who made an affidavit dated 19 July 1994 in support of Mukta's application for a stay) clearly contemplated in his affidavit that there would be a full trial of the action in Kenya, and he discussed the procedure in some detail. Madhu, in an affidavit dated 13 May 1997 (made on behalf of Bharat as well as himself) endorsed and adopted Manek's affidavit without qualification. Consequently if he and his brother had been asked to give a formal undertaking to submit to the jurisdiction of the Kenyan court, it is hard to see how they could possibly have refused.
25. Their Lordships do not express any view as to whether (contrary to Miss Dohmann's submission) there was any implied undertaking by Madhu and Bharat to submit to the jurisdiction in Kenya. But they consider that the point is not unarguable, and that it would not be right to exclude it by entertaining, at this very late stage, an issue which was not raised by the parties' advocates in either court below (and which the Court of Appeal did not discuss in any detail).

Burden of Proof

26. There was also some discussion before the Board as to the burden of proof, especially as it may be affected by the interrelation between an application to set aside an order for service out of the jurisdiction (on the one hand) and an application for a stay on the ground of forum non conveniens (on the other hand). This discussion was prompted by the fact that although none of the family defendants is resident in Jersey, none applied to set aside the Royal Court's orders for service out. It may be that those defendants who strongly opposed the action proceeding in Jersey missed a tactical advantage in not applying to set aside the order for service out, since then it would have been for Mahesh to show that Jersey was an appropriate forum (see the speech of Lord Goff of Chieveley in Spiliada at pages 478-82, especially at 480 H-481 B). But it was not suggested that a defendant's failure to apply for an order setting aside the service out disentitled him from applying for a stay (provided, of course, that he had not taken further active steps in the proceedings). Moreover it is doubtful whether the tactical disadvantage would be serious, since as Lord Goff of Chieveley observed in Spiliada (at page 477F)

"... if, in any case, the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas."

That observation seems to apply with at least equal force to a defendant who has not been served as of right.

Conclusion

27. It is now necessary to pull the strands together. The judgment of the Royal Court can be seen, with hindsight, to have had some gaps, but the gaps can be seen to have resulted from the way that the advocates on both sides presented the matter and concentrated their arguments. The Court of Appeal's criticisms of the Royal Court, although not wholly unfounded, were not such as to lead to the conclusion that the Royal Court's exercise of its discretion was fatally flawed. The Court of Appeal overestimated the significance of Compendium's position as first defendant, and also over-estimated the significance of Aruna's counterclaim. It raised, but (with respect) rather left in the air the point on the availability of the Kenyan forum, which their Lordships have already discussed.
28. In all the circumstances the Royal Court was right in its view that Kenya is clearly a more appropriate forum than Jersey for the trial of Mahesh's action, and that no compelling reason has been made out for rejecting Kenya on the ground that Mahesh (or any other party) cannot expect to obtain justice there. The Court of Appeal, although understandably concerned about some aspects of the matter, was wrong to interfere with the exercise of the Royal Court's discretion. Their Lordships will therefore humbly advise Her Majesty that the appeal should be allowed with costs, and the order of the Royal Court restored.