In the recent case of Noble More Group Ltd, the BVI High Court declined to exercise jurisdiction to hear a claim on grounds of forum non conveniens.
Noble More Group Ltd, was incorporated in BVI but carried out its business elsewhere, mainly in Hong Kong. The Claimants claimed declarations confirming the validity of share transfers in the company in their favour and also of resolutions made by them removing the Third Defendant and appointing themselves as directors. Ramdhani J stated that an application to set aside service out of the jurisdiction ex parte essentially amounts to a re-hearing of the original application.
It was therefore, applying Nilon v.Royal Westminster Investment SA  UKPC 2, for the Claimants to satisfy the Court: (a) that there was a serious issue to be tried on the merits; (b) that the claim fell within one of the ‘gateways’ out of the jurisdiction in CPR 7.3; and (c) that the BVI was “clearly or distinctly the appropriate forum” for the dispute. The Court held that the apparent dispute as to the validity of the share transfers constituted a serious issue to be tried. The Claimants sought to rely on two gateways: first that pursuant to CPR 7.3(2)(a) the Third Defendant was a “necessary or proper party”, and second that the claim related to the administration and ownership of the First Defendant company (CPR 7.3(7)). The Court accepted both of these arguments, and so the only ground remaining for the Claimants to satisfy was that of forum conveniens. In considering the appropriate forum, the Court accepted that there were “presumptively strong connectors” to the BVI based on the First Defendant’s incorporation there. Nonetheless, the Court decided that these were outweighed by other factors pointing to Hong Kong as the most convenient forum.
It was held that the dispute ultimately “relate[d] to the execution of the declarations of trust and the instruments of transfer”, and that the relevant discussions and events took place in Hong Kong. The Order setting aside service was accordingly granted, and a stay was likewise granted to the First Defendant on the grounds that Hong Kong was the most appropriate forum.