Wrong Court, Wrong Country? Forum Non Conveniens and Staying Proceedings

If you have been served with a claim in a court on the other side of the world, the worst thing you can do is start arguing the merits. Take one wrong step — file a defence, ask for security for costs, dispute the substance of the allegations — and you may be treated as having accepted that court's authority to decide your dispute, even if the natural home of the case is somewhere else entirely. In England and Wales you have just 14 days after acknowledging service to apply to dispute jurisdiction; miss that window and you are deemed to have accepted it.

The tool for getting a case moved is an application to stay the proceedings on the ground of forum non conveniens — Latin for "an inappropriate forum". The court does not decide who is right; it decides whether it is the right court to be hearing the dispute at all. Across the common law world the governing test comes from a single House of Lords decision, and the procedural traps are strikingly similar from one jurisdiction to the next.

This guide explains the underlying principle, the two-stage Spiliada test, exclusive jurisdiction clauses and anti-suit injunctions, and — most importantly — how to challenge jurisdiction without accidentally submitting to it. It covers England & Wales, Singapore and Hong Kong.

The principle: a court can decline to hear a case

A court that has jurisdiction over a defendant is not obliged to exercise it. Where there is another available court that is clearly the more appropriate place for the trial, the court may stay (halt) its own proceedings so the dispute can be litigated where it most naturally belongs. This is the doctrine of forum non conveniens.

Why does it matter so much where a case is heard? Because forum often decides outcome long before the merits are reached. The choice of court can determine which country's law applies, what evidence is admissible, how disclosure works, what costs you can recover, how long it takes, and — vitally — whether any judgment you obtain will actually be enforceable against assets. A judgment from a court the losing side regards as the wrong forum can be a hollow prize if it cannot be recognised where the money is; see our guide on enforcing foreign judgments. Getting the forum right is not a technicality. It is frequently the whole game.

The Spiliada two-stage test

The modern law on staying proceedings flows from Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, a decision of the House of Lords in which Lord Goff of Chieveley set out the framework that England, Singapore and Hong Kong all still apply today. The test asks the court to find the natural forum — the forum with which the dispute has the most real and substantial connection — and proceeds in two stages.

Stage one: is there a clearly more appropriate forum?

At the first stage the legal burden lies on the party seeking the stay (usually the defendant). That party must show that there is another available forum which is clearly or distinctly more appropriate than the forum in which proceedings have been brought. It is not enough that another court would do just as well; the alternative must be the more natural home of the dispute.

The court weighs the connecting factors, which typically include:

where the parties reside or carry on business;
the governing law of the contract or the events in dispute;
where the relevant events took place;
the location of the documents and the witnesses, and the language they speak;
questions of convenience and expense.

The aim is to identify the forum with which the action has "the most real and substantial connection".

If the defendant cannot clear this hurdle — if there is no other clearly more appropriate forum — the application fails and the case stays where it is.

Stage two: do the interests of justice require trial here anyway?

If the defendant succeeds at stage one, the burden shifts to the claimant. The claimant must then show that there are special circumstances by reason of which justice nonetheless requires that the trial should take place in the original forum, so that a stay should be refused.

This second stage is about the requirements of justice rather than mere convenience. A claimant might point to factors such as the unavailability of a fair trial, or some genuine personal or juridical disadvantage in the foreign court. But the court will not refuse a stay simply because the claimant prefers the procedural or costs advantages of the home forum. The two stages, taken together, are designed to send the case to the forum in which it can be tried most suitably for the interests of all the parties and the ends of justice.

England & Wales

England is the home of the Spiliada test, and the two-stage analysis above applies in full. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 remains the leading authority on a contested stay where there is no jurisdiction agreement between the parties.

Where the parties agreed on a court: exclusive jurisdiction clauses

The position changes sharply where the parties have signed up to an exclusive jurisdiction clause — a contract term saying disputes must be litigated in a particular country's courts. If a claimant sues in England in breach of an agreement to litigate abroad, the court applies the "strong cause" test from The Eleftheria [1970] P 94, where Brandon J held that the court has a discretion to stay and should ordinarily do so unless the claimant shows strong cause for being allowed to break the bargain. The burden is on the claimant resisting the stay, and it is a demanding one: the whole point of an exclusive jurisdiction clause is that the parties chose their forum in advance and should generally be held to that choice.

Anti-suit injunctions, in brief

Sometimes the more aggressive remedy is not to stay the English action but to stop the foreign one. An anti-suit injunction is an order restraining a party from commencing or continuing proceedings abroad — for example where those proceedings are brought in breach of a jurisdiction or arbitration clause, or are vexatious or oppressive. The leading authority is Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871, in which the Privy Council (again through Lord Goff) framed the discretion by reference to the ends of justice. Because the injunction operates indirectly on a foreign court's process, it is granted with caution and only where there is a sufficient connection with the granting jurisdiction.

How to challenge: CPR Part 11

The mechanics in England and Wales are governed by CPR Part 11, and the sequence matters enormously:

First, file an acknowledgment of service under CPR Part 10. Critically, CPR 11(3) provides that filing an acknowledgment of service does not lose you the right to dispute the court's jurisdiction.
Then make the application disputing jurisdiction. Under CPR 11(4) it must be made within 14 days after filing the acknowledgment of service, supported by written evidence setting out the grounds.
If you do not apply within that period, CPR 11(5) treats you as having accepted that the court has jurisdiction to try the claim.

The application notice attracts a court fee, payable to HMCTS at the time of issue. Whatever you do, do not simply ignore the claim in the hope the forum problem cures itself — that is the surest route to a default judgment, which then has to be unwound separately, as our guide on setting aside default judgment explains.

Singapore

Singapore applies the same Spiliada framework. The Court of Appeal confirmed this in Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (neutral citation [2006] SGCA 39), holding that the governing principle in natural-forum cases is that in Spiliada, a test it noted had been approved by the Singapore Court of Appeal on many occasions. The burden sits on the defendant to show that there is another available forum that is clearly or distinctly more appropriate. On the facts of Rickshaw the court concluded that Singapore was the appropriate forum, and the stay was refused.

So a Singapore court runs the identical two-stage analysis: stage one, is there a clearly more appropriate forum on the connecting factors; stage two, do the interests of justice nonetheless require the action to proceed in Singapore.

How to challenge: Order 9 rule 7

Procedure in Singapore is now governed by the Rules of Court 2021, which came into force on 1 April 2022. A defendant who wishes to dispute that the court has, or should exercise, jurisdiction applies under Order 9 rule 7, headed "Challenges to jurisdiction of Court". The application is supported by an affidavit that states only the grounds of the challenge; the defendant does not have to engage with the merits of the claim in order to bring it. A filing fee applies under the Rules. Note that older articles refer to "Order 12 rule 7" and the memorandum of appearance — that was the position under the superseded Rules of Court 2014, so treat pre-April-2022 commentary on the SG mechanics with care.

Hong Kong

Hong Kong likewise adopts and applies the Spiliada test. The leading Court of Final Appeal authority is SPH v SA (2014) 17 HKCFAR 364 (also reported [2014] 3 HKLRD 497), which restates the Spiliada "clearly or distinctly more appropriate forum" test. The two stages, and the shifting burden, run exactly as they do in England and Singapore.

How to challenge: RHC Order 12 rule 8

In Hong Kong, a defendant disputes jurisdiction or applies to stay the action under the Rules of the High Court (Cap. 4A), Order 12 rule 8. The steps are:

Give notice of intention to defend (the Hong Kong equivalent of acknowledging service). This step is permitted and does not, by itself, amount to submission.
Apply under Order 12 rule 8 within the time limited for serving a defence, supported by evidence on the forum question.
Expressly reserve your rights and avoid taking any step in the proceedings that unequivocally recognises the court's jurisdiction.

The submission trap is real here: filing a defence on the merits without reservation, applying for security for costs, or applying to strike out the claim can all amount to accepting the court's jurisdiction. If you are weighing up whether to defend on the merits at all, read our companion piece on how to file a defence in Hong Kong — but file the jurisdiction challenge first. A court fee is payable on the summons.

Lis alibi pendens: when the same dispute is running in two courts

A common scenario is lis alibi pendens — proceedings about the same dispute already on foot in another country. The existence of parallel proceedings abroad is a powerful connecting factor, because the courts are anxious to avoid the duplication, expense and risk of inconsistent judgments that come from the same fight being run twice. The court will consider how far each set of proceedings has advanced, which was started first, and whether the foreign court is the natural forum. None of this is mechanical: a race to issue first does not guarantee victory, and the Spiliada question — which is the clearly more appropriate forum — remains the anchor. Where one side is litigating abroad purely to harass, the anti-suit injunction discussed above may come into play.

Challenging jurisdiction without submitting: the cardinal rule

This is the point on which self-represented defendants most often come unstuck. In all three jurisdictions you submit to the court's jurisdiction if you take a step in the proceedings that, viewed objectively, unequivocally treats the court as having authority over the claim. Once you have submitted, the forum argument is gone — you cannot later complain that you are in the wrong court.

The safe path is the same everywhere:

Acknowledge service or give notice of intention to defend. This is allowed and is expressly preserved (CPR 11(3) says so in England). It buys you time without conceding anything.
Reserve your rights in writing. Make clear that you appear only to contest jurisdiction and not to defend on the merits.
Do not take a merits-based step. Do not file a substantive defence, do not apply for strike out or summary judgment, and do not seek security for costs before your jurisdiction challenge is decided — applications of that kind invite a finding that you have submitted.
Apply within the prescribed window. England: within 14 days of acknowledgment (CPR Part 11). Hong Kong: within the time for serving a defence (RHC Order 12 rule 8). Singapore: by the challenge route in Order 9 rule 7 of the Rules of Court 2021.

A practical timeline

The shape of a forum challenge is consistent across the three jurisdictions:

On service: diarise the deadlines immediately. The clock is short and unforgiving.
Step one (days, not weeks): acknowledge service or give notice of intention to defend, and reserve your rights.
Step two (within the window): issue the jurisdiction/stay application — application notice under CPR Part 11 (England), summons under RHC Order 12 rule 8 (Hong Kong), or the Order 9 rule 7 challenge (Singapore) — and pay the court fee.
Evidence: file a witness statement or affidavit setting out the connecting factors that make the other court clearly more appropriate, and exhibit the contract, correspondence and anything showing where the parties, witnesses and documents sit.
Hearing: the court decides the Spiliada question. If a stay is granted, the home proceedings are halted; if refused, you defend on the merits where you are — and the step you reserved earlier is what lets you do so without having conceded jurisdiction.

Because court fees and the precise procedural deadlines change from time to time, confirm both against the current official schedule for your court before you file.

Forum disputes turn on fine distinctions between connecting factors, jurisdiction clauses and the exact wording of the rules, and a misstep on procedure can be fatal to an otherwise strong argument. Ask CommonBench's Legal Chat to talk through whether another forum is clearly more appropriate in your situation, and which rule and deadline apply to your challenge.

This guide covers general principles of forum non conveniens and staying proceedings in England & Wales, Singapore and Hong Kong. Procedure, fees and authority differ between courts and change over time. Check the current rules for your specific court before challenging jurisdiction or filing any application.