Jurisdiction(s):
United Kingdom

CPR 11 forum challenge fails: High Court of England and Wales retains jurisdiction given real risk claimants cannot fund Brazilian proceedings (Da Silva v Brazil Iron)

Published on: 27 March 2025

Published by a LexisNexis Dispute Resolution expert

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Article summary

Da Silva v Brazil Iron Ltd [2025] EWHC 606 (KB) What are the practical implications of this case?

This judgment is noteworthy, as the High Court examined whether obstacles in securing funding overseas could make England and Wales the proper forum for hearing the claim, even though Brazil bore the closer, real and substantial connection with the action. The court concluded that this was an exceptional case: not simply a disparity in the availability of funding between two jurisdictions, but a genuine risk that substantial justice would not be achieved in the foreign forum. The conclusion was supported by several factors, notably:

the probable value of the claim (comparatively low)
the anticipated number of claimants (comparatively few)

Both had to be weighed against the comparatively high complexity of such claims. In Brazil, although CFAs existed, the conditional fee model used in this jurisdiction does not operate. Accordingly, the funding position abroad was not a mere inconvenience, but an obstacle to obtaining substantial justice in Brazil, justifying England and Wales as the appropriate forum...

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