As we have pointed out before, in ‘cross border’ claims brought in England & Wales, forum (non) conveniens - establishing that the English court is (or is not) the most appropriate forum in which to hear the claim - will often be a key preliminary issue.

The burden of proof lies on the claimant or defendant depending on whether the claim is one of ‘service in’ or ‘service out’ of the jurisdiction. In the former, the court’s permission is not needed before service on the defendant, so the burden properly falls on the defendant seeking to dispute jurisdiction to show that the English court is not the most appropriate forum. In the latter, the claimant needs permission for service, so the burden falls on him or her to show that the English court is the most appropriate forum.

Over the last few years, a number of high-profile claims have been pursued in England & Wales relating to alleged environmental damage and/or infringements of rights caused by mining, oil/mineral extraction in different parts of the southern hemisphere. Typically, these also involve local residents and/or communities considering claims against development companies based in that location.

On the face of it, these sorts of cases might not appear to have any connection with England & Wales as none of the parties are based here and none of the damage is sustained here. If, however, claimants can show that the development or extraction company was controlled by a parent company based (registered) here then they may be able to establish jurisdiction as of right because the defendant is within the jurisdiction and hence may properly be sued here. 

The purpose of this article is not to examine the evolving doctrine of UK parent company liability for acts occurring elsewhere, but to emphasise in such a scenario that it will be the defendant who will bear the burden, assuming they dispute jurisdiction, of proving that England & Wales is forum non conveniens.

This type of dispute came before the High Court again in December 2024, with judgment being given by Mr Justice Bourne on 14 March 2025 in the case Da Silva & Ors v Brazil Iron Ltd & Anor [2025] EWHC 606 (KB) The claimants argued that the defendants, companies registered in England & Wales, controlled and directed a locally based company that ran a mining business. 

Proceedings had been commenced in Brazil but the claimants sought to pursue Brazil Iron Ltd in England. The principles involved were expertly summarised by the judge:

“In a case such as this, where service has been validly effected in this jurisdiction, the burden is on the defendant to show that there is another available forum which is clearly and distinctly more appropriate, meaning that the case may be tried more suitably there for the interests of all the parties and the ends of justice… The burden reflects the fact that in such a case the claimant has served the defendant as of right, which is an advantage that will not lightly be disturbed.”

On the face it, the judge noted that the connecting factors of the claim lead to the conclusion that Brazil had the more real and substantial connection to the claim. For example, the claimants lived there, the damage occurred there, the applicable law was that of Brazil, and it would be easier and cheaper for evidence given in Portuguese to be heard by the Brazilian Court.

Connecting factors are not, however, necessarily conclusive in so far as the court must also be satisfied that substantial justice is obtainable in the other forum.

The judge examined this aspect in light of the guidance given by the Supreme Court in Vedanta Resources PLC & Anor v Lungowe & Ors [2019] UKSC 20. There, the underlying claims related to alleged toxic emissions from a copper mine in Zambia. The Supreme Court held that despite factors connecting the claims to Zambia (which were not dissimilar to those connecting the Da Silva claim to Brazil), the court should retain jurisdiction if there is a real risk of substantial injustice in the alternative forum.

The judge noted that the Court of Appeal returned to this in 2024 in Limbu & others v Dyson Technology [2024] EWCA 1564 and followed the approach in Vedanta. He quoted this key passage from Limbu:

“…if the court concludes that the foreign court is more appropriate by reference to connecting factors, applying the relevant burden of proof, the court will nevertheless retain jurisdiction if the claimant can show by cogent evidence that there is a real risk that it will not be able to obtain substantial justice in the appropriate foreign jurisdiction… This is often conveniently treated as a second stage in the analysis because it usually calls for an assessment of different evidence, but it does not involve a different question…  [and it] is juridically a single holistic exercise in seeking to identify where the case can most suitably be tried in the interests of the parties and for the ends of justice."

Having received conflicting evidence about the viability of securing funding and representation in Brazil for what are modest value but legally complex claims, he considered “it clear that there is a real risk that representation will not be found.” Additionally, the evidence was that the claims in England would be pursued on a ‘no win, no fee’ conditional fee agreement by Leigh Day, who believed that if successful they would recover damages and sufficient costs.

The judge therefore concluded that the claim should proceed in England & Wales and rejected the defendant’s attempt to dispute jurisdiction. The decision underlines the importance, when considering issues of forum conveniens, of looking beyond the ‘connecting factors’ and weighing the prospects of substantial justice being achievable in the alternative forum.  

It is worth noting that Leigh Day, who acted in this case, has developed something of a speciality in bringing these sorts of group claims against UK-registered parent companies and has featured in most of the leading recent cases, including in Vendanta and Limbu mentioned above.