In Mujur Bakat Sdn Bhd v Uni. Asia General Insurance Berhad & Ors [2011] EWHC 643 (Comm), the Claimants were the owners of a vessel called the M/V MUJUR 1 (the Vessel) and the Defendants were various underwriters which had underwritten a marine hull and machinery policy in respect of the Vessel (the Policy). The Policy was expressly stated to be governed by English law. Both the Claimants and the Defendants were incorporated and carried on business in Malaysia. In January 2009, the Vessel suffered a failure in its steering gear and was grounded. The Claimants subsequently claimed on the insurance for a total constructive loss.

In July 2010, the Claimants issued a without notice application in England to serve a Claim Form on the Defendants out of the jurisdiction. The application was granted. The present hearing was an application by the Defendants to set aside that order on the grounds that the English court was not the forum conveniens (ie, the proper place in which to bring the claim).

The Defendants placed reliance on the fact that all the parties were incorporated and had their businesses in Malaysia, that the trading limits specified in the policy extended only to areas in relatively close proximity to Malaysia and that the policy was negotiated and signed in Malaysia. Further, the documentary evidence and the key witnesses involved were located in Malaysia. The Claimants relied on the fact that the parties had specifically chosen English law as the governing law of the Policy, which, they said, tipped the balance in favour of England and made it the most appropriate forum for hearing the claim.

Mr Justice Eder held that in this particular case, the fact that English law was the governing law was not of any great significance – the issues involved (breaches of warranty and sue and labour) were not overly complex and would not involve any novel or undecided aspects of English law. As such, he was not persuaded that England was the most appropriate forum for the matter to be resolved and accordingly the order for service out of the jurisdiction was set aside.

This case demonstrates that the fact that a contract is governed by English law does not necessarily mean that the English courts will have jurisdiction to hear the claim. Other issues, such as the location of evidence and witnesses, may have a decisive impact on the proper place for the claim to be heard.