The parties entered into various agreements, which contained non-exclusive English jurisdiction clauses as well as forum non conveniens ("FNC") waiver clauses ("Each party irrevocably waives any objection which it may at any time have to the laying of the venue of any Proceedings in [any other court of competent jurisdiction] and any claim that any such Proceedings have been brought in an inconvenient forum").
Proceedings were commenced in Tanzania, and when (four years later) further proceedings were commenced in England, an application for a stay of the English proceedings was made. At first instance, Flaux J held that it is possible for the English court to grant a stay on the basis that England is not an appropriate forum (notwithstanding the FNC waiver and non-exclusive jurisdiction clause) if very strong or exceptional grounds are demonstrated, provided that such grounds "can properly be described as unforeseen and unforeseeable at the time the agreement was made. In other words, the bargain which the defendant makes in entering a contract with an FNC waiver is that he will not seek to argue that England is not an appropriate forum in relation to forum non conveniens grounds which were foreseeable at the time that the relevant agreement was made." The judge went on to find that it had been foreseeable that proceedings might take place in Tanzania as well as in England and so no stay was justified.
The appellant accepted that the judge's conclusions on the law were correct. However, it sought to argue on appeal that a stay should be granted because so much time and money had already been spent on the Tanzanian proceedings before the English proceedings were commenced. That argument was rejected by the Court of Appeal. The judge had been justified in concluding that the sums spent in Tanzania had been spent "essentially on interlocutory battles" and that both the English and Tanzanian proceedings were still in their preliminary stages, and nowhere near ready for trial.
The Court of Appeal also rejected the argument that there should be a stay of the English proceedings on case management grounds (ie because the Tanzanian proceedings were more advanced and so should be the main proceedings). Although it was held that a FNC waiver clause does not preclude an application for a case management stay in "rare and compelling cases" (especially if such a stay will promote "an orderly process of litigation"), there was no reason to interfere with the judge's exercise of his discretion in refusing such a stay. The question should also be looked at at the time the stay application is made, and not when it is determined.