The case of Abdul Rashid bin Abdul Manaf v Hii Yii Ann [2016] SGHCR 1 answers some of the unresolved issues in the law of forum non conveniens. In terms of the weight to be attributed by the court in its consideration of the relevant factors, should compellability be a significant factor if a witness is willing to testify outside of his place of residence? Are the merits of the case relevant to a forum non conveniens application?

This application to stay proceedings on the ground of forum non conveniens was successfully resisted by Francis Xavier S.C. and Ang Tze Phern of Rajah & Tann Singapore LLP.

Brief Facts

The Plaintiff had made certain investments with the Defendant. The parties later entered into a Settlement Agreement for the repayment of the Plaintiff’s investment. The money was not repaid, and the Plaintiff commenced proceedings against the Defendant in Singapore.

The Defendant alleged that there was an additional oral condition that the Plaintiff had not fulfilled – an allegation that the Plaintiff denied. The lawyer (“Alvin”) who facilitated the Settlement Agreement and the alleged oral condition thus became a key witness in the dispute. Importantly, Alvin was resident in Malaysia, but expressed willingness to testify in Singapore.

The Defendant then applied for a stay of proceedings on the ground of forum non conveniens, submitting that Malaysia was the more appropriate forum for the dispute.

Forum Non Conveniens

The test of whether a stay of proceedings should be granted is well-established. A stay will only be granted if the court is satisfied that there is some other available and more appropriate forum for the trial of the action. The court will take into account factors including convenience or expense, the availability of witnesses, the law governing the transaction, and the place where the parties reside or carry on business.

Once the court is thus satisfied, it will ordinarily order a stay of proceedings, unless there are circumstances by reason of which justice requires a refusal of the stay.

Relevance of Merits

One of the key issues was whether a court should go into the substantive merits of a claim when hearing a forum non conveniens application. The Court in this case ansered this question in the negative.

  1. The defendant need not file its defence during the stay application, so any decision on the merits cannot be binding.
  2. If the merits are taken into consideration, plaintiffs may take the opportunity to tease out the defendant’s defences.
  3. The assumption of jurisdiction should not be conflated with the substantive merits.

Foreign Witness

In the assessment of factors for the more appropriate forum, the court will ordinarily consider the convenience and compellability of witnesses. This is particularly important where the witness resides outside of the court’s jurisdiction.

In this decision, the Court clarified that compellability can be a significant factor where the witness is not willing to testify outside of his place of residence, but is ordinarily not a significant factor if the witness can be proven to be willing to testify outside of his place of residence.

Here, the Plaintiff was able to prove that Alvin, despite being resident in Malaysia, was willing to testify in Singapore. His compellability was thus not a significant factor. Further, the convenience of his attendance was also not a significant factor as Singapore and Malaysia are neighbouring states. Therefore, Alvin being resident in Malaysia did not weigh heavily in favour of the trial being held in Malaysia.

Alvin’s testimony was crucial in this matter, with the other factors being  finely balanced. Since the Defendant was not able to prove that Malaysia was the more appropriate forum, the stay application was dismissed.

Concluding Words

The law of forum non conveniens involves a fine balance of the many factors connecting the dispute with the relevant jurisdictions. The courts’ assessment of factors is fact specific, and this judgment serves to clarify the weight to be placed on certain factors, such as the merits of the case and the compellability of witnesses.