Court of appeal rules on whether justice could be obtained in Ukraine courts

In Pacific International Sports Clubs Limited v Igor Surkis & Ors [2010] EWCA Civ 753 the Court of Appeal had to consider the circumstances in which proceedings might be brought in England although the courts of another country (in this case Ukraine) were clearly the natural and appropriate forum. The dispute related to the ownership of shares in the Ukrainian football club Dynomo Kiev and follows the pattern of similar disputes in which the English courts had to consider whether or not parties were unlikely to obtain justice in the Russian courts and whether it was therefore appropriate to allow English proceedings to continue despite forum non conveniens concerns (Cherney v Deripaska [2009] EWCA Civ 849 and Yugraneft v Abramovich [2008] EWHC 2613 (Comm)).

The Court of Appeal upheld the High Court's decision (see post) and found that the claimant had not provided "cogent evidence" that he would be denied justice if he brought his claim in the Ukrainian courts. It was not enough to show that there were inherent problems with the Ukrainian judicial system (all parties accepted that there was general evidence of corruption and impropriety), the claimant had to show that he personally was unlikely to obtain justice in relation to the specific claims brought. Factors taken into account by the Court of Appeal were that the claimant had resorted to the Ukrainian courts in the past with a "considerable measure of success" and that there was no cogent evidence that the defendant, although an influential businessman, was personally corrupt in his relations with the Ukrainian judiciary.

Contrast this with Cherney v Deripaska where there was "cogent evidence" that the claimant would have been subject to trumped up charges and death threats if he had had to appear in Russia to bring proceedings and that the defendant had very close links to the government (see post). These decisions highlight that the question whether the natural forum may be departed from in special circumstances will involve a very finely balanced and fact sensitive exercise.