The State Department web site below is a permanent electronic archive of information released prior to January 20, 2001.  Please see www.state.gov for material released since President George W. Bush took office on that date.  This site is not updated so external links may no longer function.  Contact us with any questions about finding information. NOTE: External links to other Internet sites should not be construed as an endorsement of the views contained therein.

Note From the Delegation of the United Kingdom Forum Non Conveniens*

* This paper was prepared by Mr Paul R. Beaumont, Professor of European Union and Private International Law, Faculty of Law, University of Aberdeen. Earlier versions of the author's work on forum non conveniens were published as part of a general treatment of the rules for declining to exercise jurisdiction in the United Kingdom as the UK National Report to the XIVth International Congress of Comparative Law in Athens in 1994 in United Kingdom Law in the Mid-1990s, ed. by Bridge, Banakas, Gardner and Carey Miller (1994), 549-575 and in Declining Jurisdiction in Private International Law, ed. by Fawcett (1995), 207-33.

[note: This document was reformatted for HTML. The text remains the same.]

INTRODUCTION

This paper examines the recent case law on forum non conveniens in England but first of all explores its origins in Scotland. It is arguably one of the Scottish legal system's most successful exports.¹ It was originally referred to in Scotland as forum non competens but in the latter half of the nineteenth century the modern wording was adopted as it better reflected the true nature of the plea.² It is today a plea of general application in Scotland and England except where its application is inconsistent with the Brussels and Lugano Conventions.³

SCOTTISH BACKGROUND

The meaning of the plea has not always been free from doubt. Some authority supports a very restricted scope for forum non conveniens whereby the Scottish courts would sist the proceedings only if an "unfair disadvantage"⁴ or a "real unfairness"⁵ would result for the defender if the action were held there. Another narrow interpretation of the plea is that it only applies when it is in the "interests of all the parties" that the case should be tried in a forum other than Scotland.⁶ Given that the pursuer has chosen to litigate in Scotland this is never likely to be the case and such an approach effectively gives the court no discretion to decline to exercise jurisdiction.⁷ At the other end of the spectrum one can find some backing for the proposition that the aim of the plea is to find the "best and most suitable forum for trying the case" which gives no weight to the forum chosen by the pursuer.⁸

The most persuasive authorities, however, advocate an "ends of justice" test or an "appropriateness" test. The former can be traced to a dictum by Lord President McNeill saying that the plea applied in:

"cases in which the Court may consider it more proper for the ends of justice that the parties should seek their remedy in another forum."⁹

The idea of seeking the forum which is most likely to secure the ends of justice was combined with seeking the best interests of all the parties;¹⁰ but the latter aim was discredited by Lord Sumner in the leading Scottish case on forum non conveniens.¹¹ In that case the "conveniens" element of the plea was interpreted as "appropriate" by Lord Chancellor Cave and Lord Dunedin.¹² The temptation to stir all the elements together into a composite definition can be seen in Lord Jauncey's view that the plea applies where:

"the interests of the parties can more appropriately be served and the ends of justice can more appropriately be secured in that other court."¹³

Against this background of varied interpretations of the plea of forum non conveniens in Scotland it is fortunate that the House of Lords in a series of landmark judgments in the 1970's and 80's gradually moved towards the adoption of the Scottish plea.¹⁴ It is undoubtedly advantageous to Scotland to have the benefit of a very clear and authoritative judgment by Lord Goff in the case where the recognition of the English adoption of the Scots doctrine was consummated.¹⁵ That judgment focuses on the two key elements of "appropriateness" and "justice" and gives a clearer framework as to their interrelation.

THE SPILIADA CASE

Lord Goff gave a six point summary of the plea of forum non conveniens.¹⁶

a-- A stay of proceedings will only be granted where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action.

b -- In general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. However, once the defendant has made a prima facie case that another forum is more appropriate the burden shifts to the plaintiff to show that justice requires the case to be tried in England.

c -- If jurisdiction is founded as of right in England, rather than leave to serve the defendant out of the jurisdiction being required, then the defendant has to show that there is another forum which is clearly or distinctly more appropriate than the English forum.

d -- In determining the appropriateness of a forum the court will determine how real and substantial is its connection with the dispute. In doing so it will consider a number of connecting factors including the convenience of witnesses, the law governing the issue, and the places where the parties reside or carry on business.

e -- If there is no clearly more appropriate forum then no stay will be granted.

f -- If, however, the court decides that there is a prima facie more appropriate forum it will grant a stay unless the plaintiff can show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted.

Lord Goff then explained the difference in the application of the plea in cases where the court exercises its discretionary power to grant leave to serve out of the jurisdiction. In these cases the burden of proof rests on the plaintiff to persuade the court to exercise its discretion to grant leave to serve the defendant outwith the jurisdiction. If the jurisdiction so exercised might be regarded in international terms as an "exorbitant jurisdiction" then the burden of proof rests on the plaintiff to show that England is clearly the appropriate forum for the trial of the action.¹⁷

The advantage of Lord Goff's approach is a clear separation of the consideration of "appropriateness" from "justice". Judges are directed to consider the question of whether another competent forum is more appropriate to hear the case before they consider whether any exceptional reasons of justice constrain them to hear the case in England. Although Lord Goff did not attempt to define "justice" he gave it a relatively narrow focus by referring back to Lord Diplock's consideration of the word in The Abidin Daver¹⁸ and by refusing to accept that the loss of a juridical advantage in England is a good reason to deny a stay. Lord Diplock's dictum is worth quoting:

"The possibility cannot be excluded that there are still some countries in whose courts there is a risk that justice will not be obtained by a foreign litigant in particular kinds of suits whether for ideological or political reasons, or because of inexperience or inefficiency of the judiciary or excessive delay in the conduct of the business of the courts, or the unavailability of appropriate remedies."

The emphasis here is on the avoidance of bias, a basic level of judicial competence, and the court process not taking an unduly long time. It will be a rare case where a judge says that foreign courts do not meet these basic criteria of natural justice.¹⁹ The question of the unavailability of appropriate remedies in the prima facie more appropriate forum would appear to give some more discretion to English courts to retain jurisdiction on grounds of justice. However, Lord Goff in the Spiliada said that the fact that damages in England are awarded on a higher scale, that there is a more complete procedure of discovery, and that interest can be awarded when it cannot be in the other forum are not good reasons to retain jurisdiction and repel a plea of forum non conveniens relying on the "justice" exception.²⁰ Lord Goff did concede that if the limitation period has expired in the more appropriate forum and the plaintiff acted reasonably in litigating in England and did not act unreasonably in failing to commence proceedings in the more appropriate forum before the limitation period expired then justice would require allowing the plaintiff to continue with the action in England or requiring the defendant to waive the time bar in the foreign jurisdiction.²¹

Given the relatively narrow focus of the justice exception it is critical to establish what factors the courts will consider in deciding on the relative appropriateness of different fora. In the Spiliada case, Lord Templeman made the observation that:

"The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case."²² With this cautionary note in mind an attempt will be made to isolate some of the factors that have been influential in forum non conveniens cases since the Spiliada case.

A -- The applicable law

In several cases the applicable law has been a very significant factor in determining the appropriate forum. In the Spiliada case Lord Goff regarded the fact that English law was the putative governing law of the contract as being "by no means an insignificant factor".²³ The alternative forum was a Canadian one and it appeared that the judges there took a different view of the effect of the bill of lading contract and there was a dispute as to the obligations under the contract in respect of what is usually called dangerous cargo. In Banco Atlantico SA v. British Bank for the Middle East,²⁴ the Court of Appeal overturned the decision of the judge at first instance. The judge had granted a stay of proceedings in favour of the case being heard in the United Arab Emirates. The Court of Appeal was particularly influenced by the fact that under English choice of law rules Spanish law was applicable to the case. In the United Arab Emirates the courts would apply their own law and the plaintiff would have had no prospect of succeeding, whereas the English courts would apply Spanish law. In Charm Maritime v. Kyriakou,²⁵ the Court of Appeal was not confident that certain issues of English trust law would be handled appropriately in Greece given the lack of trust law in that country and the potential for distortion when two parties present conflicting evidence of what the foreign law is. Thus even though the plaintiff and the first defendant were Greek, the fact that English law was applicable and that the plaintiff could only sue the non-Greek second defendant in England meant that Greece was not clearly and distinctly a more appropriate forum than England.

In Du Pont v. Agnew,²⁶ the Court of Appeal was dealing with a leave to serve case where it was necessary for the plaintiff to show that England was clearly and distinctly a more appropriate forum than Illinois. Du Pont was a Delaware corporation which had paid punitive damages to Mr Chelos as a result of having administered a drug to him in Illinois which led to his having to be amputated below the knee. Du Pont sought to recover the damages from its insurers in the English courts. The American defendants sought to have leave to serve them out of the jurisdiction set aside. Du Pont chose the English courts because under Illinois law, if the senior management of the company is held to be personally at fault, it cannot recover from its insurers any punitive damages that it has been required to pay. This would seem to be a clear case of forum shopping but for the fact that the Court of Appeal construed the lead insurance policy as being a Lloyd's policy governed by English law. This was the key factor in determining that England was clearly more appropriate than Illinois because the English courts would have to determine a difficult and seemingly novel question as to whether English public policy would deny indemnity to a company against which an award of punitive damages has been made and if so under what circumstances. However, this is possibly a circular argument. The Illinois courts construed the lead insurance policy as being governed by Illinois law and therefore questions of English law and public policy were, from their point of view, irrelevant to the case.

There are cases where the courts have given relatively little weight to the applicable law in determining the appropriate forum. In Re Harrods (Buenos Aires) Ltd. (No 2),²⁷ the Court of Appeal acknowledged that under English choice of law rules English law was the governing law because the company was incorporated in England. Not much significance was given to this fact because the incorporation in England was an "anomalous historical survival",²⁸ the company had its commercial base and management in Argentina, and under Argentine law it was an Argentine company. Bingham LJ made the point that the situation was not "closely analogous with that in which parties to a contract deliberately choose to subject their bargain to the provisions of a given law."²⁹ In Morrison v. Panic Link Ltd.,³⁰ Lord Sutherland did not regard the English forum as clearly and distinctly more appropriate notwithstanding that in their franchise agreement the parties had given the English courts non-exclusive jurisdiction and had made English law applicable. The defender had not averred in what way the English law was different from Scots law and therefore the assumption was made that it was the same. Lord Sutherland was particularly influenced by the fact that the agreement related to the operation of a franchise in Scotland and the majority of the contractual obligations which were the subject of the action were to be performed in Scotland.

If the parties have chosen the law governing their dispute or the same law would be applicable to the case under either potential forum, this is an objective factor that should be weighed in determining which forum is the most appropriate to determine the case. Clearly if the legal issues are complex and disputable, it will be a strong factor in favour of choosing the forum that would be applying its own law. The alternative forum would have to determine what the foreign law is. If expert evidence is given in such cases it is often conflicting. In the United Kingdom and some other jurisdictions proof of foreign law is an issue of fact and the decision of the judge is not subject to appeal.

If, however, the applicable law has not been agreed by the parties and the potential fora would apply different laws, the applicable law under Scots or English choice of law rules should not be considered a significant factor in determining the appropriate forum. It is unwise to assume that the law applicable according to English or Scottish choice of law rules is the appropriate law to govern the dispute. It may be that in an extreme case the law selected by the choice of law rules of the alternative forum may be so unrelated to the case that it would be contrary to "justice" to stay the proceedings. Such matters should be considered under the justice exception and not in an analysis of appropriateness.

B -- Litigation is pending elsewhere (lis pendens)

Lord Justice Bingham said that with regard to concurrent proceedings between the same parties on the same issues in different jurisdictions:

"The policy of the law must (...) be to favour the litigation of issues only once, in the most appropriate forum."³¹

The reason why the courts disapprove of such concurrent proceedings was stated by Lord Brandon in The Abidin Daver:

"one or other of two undesirable consequences may follow: first, there may be two conflicting judgments of the two Courts concerned; or, secondly, there may be an ugly rush to get one action decided ahead of the other, in order to create a situation of res judicata, or issue estoppel in the latter."³²

If the two actions started about the same time then priority will matter very little in determining the appropriate forum. In Du Pont, Lord Justice Bingham did not think that the fact that the English proceedings began a month before the Illinois proceedings should affect the outcome of the plea of forum non conveniens.³³ On the other hand, if proceedings are commenced in two fora at about the same time but have reached a much more advanced stage in one rather than the other so that "they have had some impact upon the dispute between the parties",³⁴ then this is a factor in favour of the action being allowed to proceed in that forum. It is not, however, determinative. This was precisely the case in Meadows v. ICI where the action in Ireland was much closer to coming to trial than in England but Hirst J decided that Ireland was not clearly and distinctly the more appropriate forum because otherwise the case had no connection with Ireland, the case had a real and close connection with Guernsey and England, the convenience of witnesses favoured Guernsey and England, and, most significantly, England was the only forum in which all three parties, Meadows, ICI and ICB, were before the court in one single action.³⁵

In Cleveland Museum of Art v. Capricorn Art,³⁶ Hirst J was influenced to grant a stay of the English proceedings in favour of proceedings in Ohio by the fact that the latter proceedings had been commenced just over 18 months before the former and was ready for trial in Ohio. If a stay was not granted substantial costs would be wasted in the Ohio proceedings and substantial delay would occur before the English courts could resolve the dispute. In this case most of the other factors favoured Ohio; it was more convenient for witnesses and Ohio law was the proper law of the loan agreement. The principal factor favouring England was to ensure the participation of the second defendant, Rogers & Co., in the same proceedings as the other two parties. This was clearly outweighed by the several factors favouring trial in Ohio.

The English courts give much greater weight to concurrent proceedings commenced elsewhere when the English proceedings are simply an attempt to obtain a negative declaration. This is disapproved of as being an example of "forum shopping".³⁷ The case of FNBB v. UBS illustrates the point.³⁸ The Court of Appeal overturned the decision of the court of first instance and granted a stay in favour of the proceedings in Geneva. The Union Bank of Switzerland (UBS) claimed $5.3 million from First National Bank of Boston (FNBB) in proceedings in Geneva and then FNBB brought proceedings against UBS in London for a declaration that it was under no such liability. In the English proceedings FNBB sued four other defendants alleging a conspiracy betwen them to extract $5.3 million from the banking system as between FNBB and UBS, the sum that UBS was claiming from FNBB in Switzerland. Mr Justice Steyn was heavily influenced by the fact that FNBB's claims against the four defendants other than UBS could only be brought in England and decided not to stay the English proceedings even though Geneva was the appropriate forum to resolve the dispute between UBS and FNBB. The Swiss courts were the appropriate forum because Swiss law governed and the case had a closer connection with Switzerland than anywhere else. The Court of Appeal made some important observations about actions for negative declarations and relied on Lord Wilberforce's dictum in Camilla Cotton Oil Co. v. Granadex SA, that:

"The declaration claimed is of a negative character and as Lord Sterndale himself had said "a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made". He went on: "Hardly ever" is not the same as "never" but the words warn us that we must apply some careful scrutiny. So I inquire whether to grant such a negative declaration would be useful."³⁹

In the instant case a negative declaration against UBS would not have been useful as it would not have prevented the continuance of the Swiss proceedings and any judgment there in favour of UBS could have been enforced against FNBB in Switzerland. In relation to the importance of being able to sue the other four defendants together with UBS the Court of Appeal pointed out that if FNBB were to obtain its negative declaration against UBS then its claims against the other four defendants would fall. Those claims would have had a chance of succeeding only if it was discovered that FNBB was liable to give UBS $5.3 million. Therefore allowing a negative declaration action against UBS to proceed in England would have had no utility in relation to the action against the other four defendants unless it failed. Sir Michael Kerr concluded that:

"To allow FNBB's claim for a declaration of non-liability to proceed against UBS would be contrary to the spirit of comity between our Courts and the Swiss Courts."⁴⁰

C -- Convenience of witnesses

The convenience of witnesses is usually a relevant factor in determining the appropriate forum to hear a case but has rarely, if ever, been determinative. Where the dispute is primarily factual rather than legal then the convenience of witnesses can be a major factor,⁴¹ but where the dispute is primarily one of law and there is little scope for oral evidence then convenience of witnesses is of negligible relevance.⁴²

In CMA v. Capricorn Art,⁴³ convenience of witnesses was one of several factors pointing towards Ohio being the more appropriate forum and the English proceedings were stayed. It seems likely that the fact that considerable time and expense had already been incurred in relation to the Ohio action and that Ohio law governed the loan agreement were of more significance than the convenience of witnesses. Jet travel reduces the level of inconvenience involved in witnesses giving evidence in a foreign forum and if travel is not possible the evidence can usually be taken on commission. Certainly in Du Pont v. Agnew,⁴⁴ the Court of Appeal did not regard the fact that Illinois was more convenient for the bulk of the witnesses than London as creating a substantial advantage in favour of Illinois as the appropriate forum. Indeed this advantage to Illinois was outweighed by the view of the Court of Appeal that the insurance policies were governed by English law.

If the witnesses will give oral evidence in a foreign language and the bulk of the written evidence is in that language then this constitutes a more significant factor in favour of the English proceedings being stayed. In re Harrods (Buenos Aires) Ltd. (No 2), Lord Justice Stocker noted that the bulk of the witnesses would give evidence in Spanish, that the documents were in Spanish and thus a lot of translation would be required. He concluded that:

"The difficulties of a trial in this country are such that it is not easy to see how such a trial is to be conducted. At the very least, it will present a formidable task for a trial judge."⁴⁵

D -- Convenience of the parties

Often convenience of the parties is a factor which cancels itself out in that one forum is more convenient for one party and the alternative forum is more convenient for the other. However, if the defendant is sued in his home court then this is a factor against granting a stay of the proceedings. Lord Justice Bingham has said that:

"It must be rare that a corporation resists suit in its domiciliary forum. Rarely would this Court refuse jurisdiction in such a case."⁴⁶

Where the alternative forum is the plaintiff's home base then this is a factor in favour of upholding a plea of forum non conveniens. In Cleveland Museum of Art v. Capricorn Art, Hirst J decided that Ohio was a more appropriate forum than England and was significantly influenced by the fact that the Cleveland Museum of Art is situated there.⁴⁷

The courts may be willing to look behind the nominal parties to the insurers who are financing the litigation. In the Spiliada case, Lord Goff took account of the fact that the shipowners' insurers, who were managed in England, financed the litigation and were dominus litis, as a factor against granting a stay of the English proceedings even though the nominal parties had Greek, Liberian and Canadian connections.⁴⁸

E -- Real and close connection between the forum and the dispute

This factor may be linked to the convenience of the parties in that it focuses on the place where the parties' dispute is centred and this is often where one or both of the parties reside. In Meadows v. ICI, Hirst J concluded that London was the place which had the most real and close connection with the dispute partly because the parties had offices in London and the bulk of the important transactions took place there.⁴⁹ Likewise in Morrison v. Panic Link Ltd., Lord Sutherland was influenced by the fact that Scotland was:

"the country which has the clearest connection with the subject matter of the action".⁵⁰

He reached this conclusion on the basis that the majority of the contractual obligations were due to be performed in Scotland because the agreement concerned the operation of a franchise there. This connection with Scotland was strengthened by the fact that the pursuer was domiciled there.

In many ways looking for the forum with which the action has "its closest and most real connection" is another way of saying one is trying to identify the "natural forum" or the "most appropriate" forum.⁵¹ It is not really a factor in determining the "appropriate" forum but rather another way of stating the objective. It may, however, be a relevant factor in determining the appropriate forum if the focus is a narrow one on the geographical place with which the dispute is connected, e.g. the place of performance of the contractual obligation in question.⁵²

F -- Actions for negative declarations

The importance of this factor is considered above under B Litigation pending elsewhere. If an action is pending elsewhere and the defendant in that action brings proceedings in England for a negative declaration this is usually regarded as forum shopping and the courts in the United Kingdom may decline to exercise jurisdiction.⁵³ Similarly, if a plaintiff brings proceedings in England for a negative declaration in an attempt to preempt a positive action against them in another forum, the English courts may well refuse to grant such a declaration.⁵⁴

A strong case can be made that the English courts are too hostile to negative declarations and that the question whether the plaintiff is seeking a negative declaration rather than a positive remedy should in itself be neutral in determining the appropriate forum.⁵⁵

G -- Third party/multiple defendants

If the plaintiff is able to sue all the defendants in England, or join a third party to the action there, but this is not possible in the alternative forum, then this is a significant factor in favour of the English court retaining jurisdiction.⁵⁶ It is not, however, a conclusive factor. In the Cleveland Museum of Art case, the second defendants, T. Rogers & Co., could be sued together with the first defendants only in England and yet Hirst J decided to stay the English action against the first defendants, Capricorn Art, in favour of the already pending proceedings in Ohio. In this case several factors favoured Ohio and only the "Rogers" factor pointed towards England.⁵⁷

H -- Related proceedings ("The Cambridgeshire Factor")

In the Spiliada case,⁵⁸ a significant reason why the English courts declined to stay the proceedings was the existence of related litigation in England concerning The Cambridgeshire and involving the same defendants, Cansulex Ltd. Fifteen counsel were engaged in The Cambridgeshire case and each had 75 files. Staughton J, who was hearing both cases, in the Spiliada case (later supported by the House of Lords) thought it would be "wasteful in the extreme of talent, effort and money if the parties to this case were to have to start again in Canada."⁵⁹ It is wise to take into account the loss of the specialist knowledge gained by the lawyers, experts and judges in related proceedings in the same forum when deciding whether or not to stay a case.

I -- Res judicata

If a foreign judgment may be res judicata in relation to the proceedings pending in the United Kingdom then this is a factor in favour of staying the proceedings to allow the question of res judicata to be determined in the foreign forum.⁶⁰ In Charm Maritime v. Kyriakou,⁶¹ it was not clear if the Greek judgment was res judicata and to determine this question in England would involve a good deal of evidence from Greek lawyers. Therefore this was a strong factor pointing towards the case being heard in Greece. Nonetheless, the Court of Appeal gave greater weight to other factors pointing towards England, in particular the need to determine questions of trust law unfamiliar in Greece⁶² and the ability to sue the second defendant, Mathias, in the English courts.⁶³

J -- Public policy

In Du Pont v. Agnew⁶⁴ the Court of Appeal decided that the contract was governed by English law and that the question whether the plaintiffs could be indemnified by the insurers against the punitive damages awarded against them in Illinois was an open one to be determined by English public policy. Lord Justice Bingham seemed to be saying that when a novel question of English public policy is in issue the English courts must not decline to exercise jurisdiction:

"If English public policy is to be held to deny the right to indemnity in these circumstances, then this Court and no other must so hold. I do not regard this as a question capable of fair resolution in any foreign court, however distinguished and well instructed (...). The primary question, as I regard it, is the effect of this contract as a matter of English public policy, and that is a question which I do not think any foreign Judge could conscientiously resolve with any confidence that he was reaching a correct answer."⁶⁵

K -- Expense and time

The trial judge in Irish Shipping Ltd. v. Commercial Union,⁶⁶ refused to grant a stay of the English proceedings. He decided that both the English and Belgian courts were appropriate fora but:

"The advantage of this jurisdiction appears to be that it will probably lead to a resolution of the dispute more quickly than Belgian process and at less expense, because the issues on the plaintiffs' title to sue are more complex in Belgium."⁶⁷ This view was affirmed by the Court of Appeal.

However, the fact that another forum might permit a lesser recovery of costs and that litigation may take longer than in England will only be taken into account in exceptional circumstances.⁶⁸ The availability of legal aid in England and its non-availability in the alternative forum is not a relevant factor in determining the appropriate forum.⁶⁹

L -- Lack of arguable defence on the merits

If the defendant is unable to state an arguable defence on the merits then it is highly unlikely that he will be granted a stay of the proceedings.⁷⁰

CONCLUDING REMARKS

Given the propensity for States to arrogate to themselves extensive jurisdiction in civil and commercial cases it seems highly appropriate to employ forum non conveniens as a means of declining to hear cases which would clearly be better heard in another forum. The alternative mechanism of lis pendens, employed in the Brussels and Lugano Conventions, does not concern itself with which is the more appropriate forum to hear the case but rather with which party launched its action first. An arbitrary first come first served rule may be necessary and acceptable in the context of these Conventions where the grounds of jurisdiction are clearly circumscribed and an almost automatic system of recognition and enforcement of judgments is created. Outwith such a tight knit framework its arbitrariness becomes unacceptable. The benefit of certainty is outweighed by the fact that it encourages parties to rush to be the first to initiate proceedings, including purely defensive actions for negative declarations in a forum which is so inconvenient for the other party that it is designed to deter that party from pursuing its positive remedy.⁷¹

The availability of the plea of forum non conveniens does increase the uncertainty about whether or not a particular court will exercise its jurisdiction. This in turn increases the risk of fruitless litigation simply trying to establish whether a court will hear the case. Nonetheless, the alternatives of always exercising even the most exorbitant of jurisdictions or of operating a lis pendens rule create too many opportunities for injustice. The lis pendens rule is certain but, unlike choice of law rules which are certain, it does not have the virtue of encouraging out-of-court settlements and thereby reducing the time and the cost of resolving legal disputes. Rather it encourages a person involved in a legal dispute to rush to a particular court in order to gain procedural and/or juridical advantages over the other party. Thus the flexibility of forum non conveniens is not gained at the expense of encouraging litigation rather the certainty of lis pendens is gained at that expense.

The recent developments in the plea of forum non conveniens, particularly its adoption by the House of Lords in the Spiliada case, have greatly clarified its scope and increased the certainty of its application in an individual case. One reason for that enhanced certainty is the large number of cases decided on the plea since its adoption in England. Such a volume of precedent could never be established in the much smaller jurisdiction of Scotland. It has to be acknowledged that the analysis of the various factors considered in these cases to determine the "appropriate" forum shows that different weight can be given to different factors in different circumstances. A trial judge can find some guidance from these cases but still has considerable discretion in determining the appropriate forum. It will be a very rare occasion when the plea is denied on the grounds of "justice" even though there is clearly a more appropriate forum.

Although the flexibility of the judicial application of forum non conveniens cannot be removed it may be helpful to list the points that have emerged from the case law in the United Kingdom since the Spiliada case, or from academic analysis, as to the determination of the "appropriate" forum.

1 -- The applicable law is a relevant factor whenever it has been agreed by the parties or would be the same in the alternative forum. It is a significant factor in favour of the forum which is applying its own law when the issues of law are important to determining the outcome of the case and are complex and disputable.

2 -- The fact that litigation is pending in another forum is a significant factor if the proceedings there have reached a stage which has had some impact upon the dispute between the parties.

3 -- The convenience of witnesses is a relevant factor unless the dispute is primarily one of law and there is little scope for oral evidence but it is rarely a significant factor unless the dispute is primarily factual rather than legal or a considerable amount of evidence is to be given in a foreign language.

4 -- The convenience of the parties is a relevant factor in making it difficult for a defendant to object to being sued in his own forum (the place where he is habitually resident or domiciled) or for a plaintiff to object to the alternative forum when that is his own forum. This factor has echoes of the interpretation of the Brussels Convention which gives a strict construction to the special jurisdictions in favour of the general jurisdiction of the defendant's domicile in Article 2.

5 -- The geographical place with which the dispute is closely connected, e.g. the place of performance of the contractual obligation in question, is a relevant factor.

6 -- If a negative declaration is being sought in one forum and a positive remedy in another forum then this is currently a factor in favour of the latter forum. However, it is arguable that this should be a neutral factor in determining the appropriate forum.

7 -- If third parties or other defendants can be joined to the action in one forum but not in the alternative forum then this is a significant factor in favour of the former.

8 -- If related litigation has already taken place in one forum and not in the alternative forum and this has enabled the lawyers in the former forum to acquire expertise of relevance to the present litigation then this is a relevant factor in favour of the former forum.

9 -- A forum will be reluctant to decline to exercise jurisdiction if it would require the alternative forum to rule on questions of public policy of the former forum which are central to a resolution of the litigation.

10 -- Differences between one forum and the alternative forum in terms of costs, damages and delays are of little or no relevance to determining appropriateness but in an extreme case can be relevant to the "justice" exception.

11 -- If the defendant is unable to state an arguable defence on the merits in the forum or in the alternative forum then this is a significant factor in favour of the former forum in order to avoid wasting time.

ENDNOTES

¹ See e.g. its adoption in the United States discussed in R. Braucher, "The Inconvenient Federal Forum" (1947) 60 Harv. L. Rev. 908, 909 and its adoption in England discussed in this paper. On forum non conveniens generally, see Barma and Elvin, "Forum non Conveniens: Where do we go from Here?" (1985) 101 LQR 48; Slater, "Forum Non Conveniens: A View from the Shop Floor" (1988) LQR 554; Fawcett, "Trial in England or Abroad: The Underlying Policy Considerations" (1989) 9 OJLS 205; North & Fawcett, Cheshire & North's Private International Law (1992, 12th ed), 220-34; Dicey & Morris The Conflict of Laws (1993, 12th ed) ed. by Collins, 395-419; Anton with Beaumont, Private International Law (1990, 2nd ed), 212-8.

² See e.g. Lord Deas in Longworth v. Hope (1865) 3 M. 1049, 1058: "Although questions like the present are ranged in our books under the head of "forum competens" or "forum non competens", the plea is really not that the one forum is incompetent, but that the other forum ought to be preferred. Where there are two competent forums, the question is, do the ends of justice require that an action brought in the one should be sisted in order that proceedings may be taken or go in the other?". For the first comprehensive analysis of the Scottish plea of forum non conveniens, see Anton, Private International Law (1967), 148-54.

³ See s. 49 of the Civil Jurisdiction and Judgments Act 1982. The breadth of the plea's application is illustrated by its use in the context of an application for judicial review in Sokha v. Secretary of State for the Home Department, 1992 SLT 1049. Forum non conveniens is applicable to internal UK conflicts coming within the scope of Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, which is modelled on the Brussels Convention, see Drake J. in Cumming v. Scottish Daily Record and Sunday Mail Ltd., The Times, June 8, 1995 reversing his own decision in Foxen v. Scotsman Publications Ltd., The Times, February 17, 1994 (noted by Collins (1995) 111 LQR 541 and Beaumont (1995) 63 SLG 111). Forum non conveniens may not apply in the context of litigation which is governed by an international convention, e.g. the Court of Appeal has recently decided that it does not apply to matters within the scope of the Warsaw Convention, see Milor SRL and Others v. British Airways plc, The Times, February 19, 1996. In relation to cases where forum non conveniens is a competent plea it may be possible to argue that only certain issues should be tried in another jurisdiction and not the whole case, see Ashford Hotels Ltd. v. Higgins and others, The Independent, August 14, 1995; judgment of the Court of Appeal on July 21, 1995 (LEXIS Transcript), in which Evans LJ said: "There is no reason in principle why part rather than the whole of a claim should not be stayed in favour of proceedings abroad."

⁴ See the dicta of Lord Deas in Longworth v. Hope, n. 2 above, at 1057 and the approach of Lord Kissen in Balshaw v. Balshaw, 1967 SC 63 at 73.

⁵ Lord Shaw of Dunfermline in Société du Gaz de Paris v. La Société anonyme de navigation Les Armateurs Francais, 1926 SC (HL) 13 at 20.

⁶ See the dictum of Lord Justice Clerk Inglis in Clements v. Macaulay (1866) 4 M. 583 at 592 and the statement by the learned judge at 593 that "In cases in which jurisdiction is competently founded a court has no discretion whether it shall exercise its jurisdiction or not". Lord Inglis subsequently significantly softened this position, when Lord President in Martin v. Stopford Blair's Executors (1879) 7 R. 329 at 331, saying of forum non conveniens "the plea really means that of two courts having jurisdiction to try a question it is more expedient to try it in one than in the other." Nonetheless his no discretion approach was quoted approvingly by Lord Kinnear in Sim v. Robinow (1892) 19 R. 665 at 668; Lord Shaw of Dunfermline in Société du Gaz, n. 5 above at 19; and by Lord Avonside in Stenhouse London Ltd. v. Allwright, 1971 SLT (Notes) 84 at 85.

⁷ Lord Sumner recognized the futility of trying to satisfy the interests of all the parties in Société du Gaz, n. 5 above at p. 22.

⁸ See Lord Justice Clerk Moncrieff in Williamson v. North Eastern Railway Co. (1884) 11 R. 596 at 598. See also Lord Justice Clerk Alness asking the question "where can the case best be tried?" in Sheaf Steamship Co. Ltd. v. The Compania Transmediterranea, 1930 SC 660 at 667.

⁹ Longworth v. Hope, n. 2 above, at 1053.

¹⁰ See the authorities cited in n. 6 above.

¹¹ See n. 7 above and Lord Guthrie in Argyllshire Weavers Ltd. v. A. Macaulay (Tweeds) Ltd., 1962 SC 388 at 403. Lord Prosser recently quoted the combined test of declining to exercise jurisdiction in favour of a competent court in another jurisdiction where it is in the "interests of all the parties and for the ends of justice" as still being a correct statement of the law, Sokha, n. 3 above, at 1052-1053. He went on, however, to note that "It does not appear to me that the prospects of either party can be determinative of the appropriate forum, since any advantage of this kind to one party is correspondingly a disadvantage to the other."

¹² Ibid. 17 and 18. Lord Dunedin repeated this in Robinson v. Robinson's trustees, 1930 SC (HL) 20 at 24 and his opinion was concurred in by Lords Warrington and Tomlin. See also the support for this idea by all three judges in the Inner House in the Argyllshire Weavers case, n. 11 above at 400-401, 403 and 405. The idea that even though the Scottish courts have jurisdiction it may not be "appropriate" for the court to exercise jurisdiction was suggested by Lord Ardmillan in Longworth v. Hope, n. 2 above, at 1059.

¹³ Credit Chimique v. James Scott Engineering Group Ltd., 1979 SC 406 at 410.

¹⁴ The Atlantic Star [1974] AC 436; MacShannon v. Rockware Glass Ltd. [1978] AC 795; The Abidin Daver [1984] AC 398. In the process the English courts abandoned a very pro-plaintiff position which declined to exercise jurisdiction which was competently founded in England only if it would be "oppressive or vexatious" to the defendant, or would be an abuse of the court, and if a stay would not cause "an injustice to the plaintiff", see Scott LJ in St Pierre v. South American Stores [1936] 1 KB 382 at 398. See also the earlier cases of McHenry v. Lewis (1882) 22 ChD 397; Peruvian Guano Co. v. Bockwoldt (1883) 23 ChD 225; Hyman v. Helm (1883) 24 ChD 531 and Thornton v. Thornton (1886) 11 PD 176.

¹⁵ Spiliada Maritime Corporation v. Cansulex Ltd [1987] AC 460. The reasoning of Lord Goff was helpful to the application of forum non conveniens in Morrison v. Panic Link Ltd, 1993 SLT 602, in the Sokha case n. 3 above, and in PTKF Kontinent v. VMPTO Progress 1994 SLT 235. Also the related decision of the House of Lords adopting forum non conveniens in the context of matrimonial proceedings, De Dampierre v. De Dampierre [1988] AC 92, was followed by the Inner House in Mitchell v. Mitchell, 1993 SLT 123.

¹⁶ N. 15 above, at 476-478. This paper does not consider the controversial question of whether the plea of forum non conveniens is competent when a court in the United Kingdom has jurisdiction under Article 2 of the Brussels or Lugano Conventions. The English Court of Appeal considers that forum non conveniens is a competent plea in these circumstances provided the parties are not connected with another Contracting State and the alternative forum is a non-Contracting State, see Re Harrods (Buenos Aires) Ltd. [1992] Ch. 72 and The Po [1991] 2 Lloyd's Rep 206. The former case was later referred to the European Court of Justice by the House of Lords, see Case C-314/92 Ladenimor SA v. Intercomfinanz but then settled before the Court could give a ruling. The decision of the Court of Appeal has been extensively analysed: Briggs (1991) 107 LQR 180; Kaye (1992) JBL 47; Gaudemet-Tallon (1991) 80 Rev. crit. dr. internat. privé 491; and Duintjer Tebbens in Law and Reality, ed. by Sumampouw et al. (1992), 47-61. For a creative and very well researched examination of this issue see Kennett, "Forum non Conveniens in Europe" (1995) 54 CLJ 552. Recently, in Sarrio SA v. Kuwait Investment Authority, judgment of October 12, 1995 (LEXIS transcript), Mance J has decided that forum non conveniens is a competent plea in circumstances where the English courts have jurisdiction on the basis of Article 4 of the Brussels Convention (i.e. where the defendant is not domiciled in a Contracting State and one of the national rules of jurisdiction applies) even when the alternative forum is a Contracting State. If proceedings have commenced in the other Contracting State then the court should apply Articles 21 and 22 before considering the common law plea of forum non conveniens.

¹⁷ Lord Goff, n. 15 above at 481, disliked the word "exorbitant" and preferred "extraordinary". He cautioned that not all cases where the defendant has to be served out of the jurisdiction are in any sense extraordinary, the defendant's place of residence abroad may be no more than a tax haven. However, it seems that the courts routinely require plaintiffs to prove that England is "clearly" the appropriate forum in leave to serve cases without analysing whether the jurisdiction which is called upon to be exercised in England is extraordinary or exorbitant, see Bank of Baroda v. Vysya Bank [1994] 2 Lloyd's Rep. 87 at 96; Trade Indemnity plc and others v. Forsakringsaktiebolaget Njord (in liq) [1995] 1 AllER 796 at 805-809; Artlev AG v. Joint Stock Company Almazy Rossii-Sakha, The Times, May 22, 1995, judgment of March 8, 1995 (LEXIS transcript) (C.A.) (in this case the burden of proof remained on the plaintiffs even though the defendants initially conceded, wrongly, that the burden of proof rested on them); Agrafax Public Relations Limited trading as Abacus Communications v. United Scottish Society Incorporated, The Times May 22, 1995, judgment of May 11, 1995 (LEXIS transcript) (C.A.); and Rowland v. Gulfpac Ltd.; Inoco plc and others v. Gulf USA Corporation and others, judgment of July 24, 1995 (Rix J, LEXIS transcript).

¹⁸ Lord Goff's reference is at 478 of Spiliada to The Abidin Daver, n. 14 above, at 411.

¹⁹ One such case is The "Al Battani" [1993] 2 Lloyd's Rep 219, where Sheen J decided that Egypt was clearly a more appropriate forum for the trial of the action than England but declined to stay the proceedings on "justice" grounds. He decided that the "financial burden of litigating in Egypt" would be "so heavy that justice requires a stay should not be granted" (224). Sheen J emphasized that there would be a five year delay in the litigation in Egypt, that no costs other than court fees could be recovered there, and that interest on damages is only awarded as from the date of the final judgment on appeal. He also mentioned the high cost of translating the contract and other documents from English into Arabic.

²⁰ N. 15 above, at 482-483. This restrictive approach to this aspect of the "justice" exception was followed by Lord Prosser in Sokha v. Secretary of State for the Home Department, n. 3 above, 1054. Sokha was being detained in prison as an illegal immigrant pending a decision to deport him. He argued that it was easier to obtain a conditional release in Scotland than in England and that therefore it would be unjust for the Scottish court to decline to exercise jurisdiction on the basis of forum non conveniens. England clearly was the more appropriate forum as Sokha had no connection with Scotland and was being detained in England. Lord Prosser was satisfied that even if Sokha would be deprived of a juridical advantage if the Scottish court declined to exercise jurisdiction, substantial justice would still be done in England. On the other hand, "justice" may not be available in a foreign forum where the pursuers do not have their case reviewed by a judicial body, see PTKF Kontinent v. VMPTO Progress, n. 15 above, at 239.

²¹ N. 15 above, at 483-484.

²² Ibid. 465. Lord Templeman also issued some important words of caution about the need for forum non conveniens to be primarily decided by the trial judge, for legal argument on the matter to be kept brief and that an "appeal should be rare and the appellate court should be slow to interfere" (at 465). For an example of an appellate court taking his warning seriously and not interfering with the discretion of the trial judge, see the Artlev AG case, n. 17 above.

²³ Ibid. 486.

²⁴ [1990] 2 Lloyd's Rep. 504.

²⁵ [1987] 1 Lloyd's Rep. 433.

²⁶ [1987] 2 Lloyd's Rep. 585. In Bank of Baroda v. Vysya Bank, n. 17 above, another leave to serve case, the fact that English law governed the contract was a major factor in determining that England was a clearly more appropriate forum than India, particularly because the case turned on questions of law with little scope for oral evidence (at 96-98). In The Standard Steamship Owners' Protection and Indemnity Association (Bermuda) Ltd. v. Gann and Another [1992] 2 Lloyd s Rep. 528 at 536, Hirst J decided that the fact that English law was the applicable law (it had been agreed by the parties in a choice of law clause) was a significant factor in deciding that England was clearly and distinctly a more appropriate forum than California. Although this case involved an exclusive jurisdiction clause and was therefore governed by different principles, Hirst J made it clear (at 537) that even if it had been a normal leave to serve case in which the Spiliada principles governed he would have found England to be clearly the more appropriate forum.

²⁷ [1991] 4 AllER 348. In The "Varna" (No 2) [1994] 2 Lloyd's Rep. 41 at 48-9, Clarke J did not regard the fact that under English choice-of-law rules the contract was governed by English law as a significant factor in deciding the natural forum. The plaintiffs could have sought to rely on English law in the Bulgarian proceedings but did not do so, and it had not been demonstrated that there was any difference between Bulgarian and English law in relation to the merits of the claim. In the Trade Indemnity case, n. 17 above, Rix J did not regard the fact that the reinsurance contract was governed by English law as particularly significant because the main burden of the dispute was a "factual one with its centre in Sweden, in connection with which Swedish factual and expert witnesses will have to be called" (at 809).

²⁸ N. 27 above, at 367.

²⁹ Ibid.

³⁰ N. 15 above.

³¹ Du Pont v. Agnew, n. 26 above, at 589.

³² N. 14 above, at 423. Quoted with approval by Bingham LJ in Du Pont, n. 26 above at 589.

³³ N. 26 above at 593. In Irish Shipping Ltd v. Commercial Union [1991] 2 QB 206 at 232, Sir John Megaw gave "no weight" to the fact that Belgian proceedings were instituted four months before the English proceedings. However, he was influenced by the fact that the defendants who were arguing for the case to be heard in Belgium had not acted in good faith because for a long time they had relied on a non-existent confidentiality clause in the contracts of insurance. In the absence of such lack of good faith the fact that the action in Belgium was commenced four months earlier than the English action would have had no more than "little weight" in determining where the action should be heard. In Banque Paribas v. Cargill International SA [1992] 1 Lloyd's Rep 96, the fact that the Swiss proceedings were commenced about a month earlier than the English proceedings did not outweigh a variety of factors pointing to England as a clearly and distinctly more appropriate forum, including the fact that several key issues were governed by English law. The decision was affirmed by the Court of Appeal in [1992] 2 Lloyd's Rep 19 at 25. In Excess Insurance Company Limited and Others v. Allendale Mutual Insurance Company, judgment of March 8, 1995 (Lexis transcript) the Court of Appeal decided not to grant leave to serve out of the jurisdiction as England was not clearly the appropriate forum. It was particularly influenced by the fact that proceedings had already been commenced in Rhode Island, even though they had "progressed to a limited extent", and that the courts there clearly had jurisdiction by virtue of a non-exclusive jurisdiction clause.

³⁴ Lord Goff in De Dampierre v. De Dampierre , n. 15 above, at 108, quoted with approval by Hirst J in Meadows v. ICI [1989] 1 Lloyd's Rep 181 at 189.

³⁵ N. 34 above at 189-190. Hirst J's decision was upheld by the Court of Appeal [1989] 2 Lloyd's Rep 298 at 305. This case was decided before Ireland acceded to the Brussels Convention.

³⁶ [1990] 2 Lloyd's Rep 166. In The Varna (No 2), n. 27 above, the proceedings in Bulgaria were already at an advanced stage and some of the questions had been decided. Clarke J regarded this as a particularly significant point in favour of regarding Bulgaria as the more appropriate forum and he stayed the English proceedings.

³⁷ See The Volvox Hollandia [1988] 2 Lloyd's Rep 361 at 371; Sohio Supply Co v. Gatoil [1989] 1 Lloyd's Rep 588 at 593; and FNBB v. UBS [1990] 1 Lloyd's Rep 32 at 38, 39. Some academic support for this disapproval comes from Collins, Essays in International Litigation and the Conflict of Laws (1994) at 274-288, although he does indicate that seeking a negative declaration can be appropriate in certain cases (at 287), and Fentiman, "Tactical Declarations and the Brussels Convention" (1995) 54 CLJ 261. For a more neutral approach to negative declarations see Bell, "The Negative Declaration in Transnational Litigation" (1995) 111 LQR 674 and Davenport, "Forum Shopping in the Market" (1995) 111 LQR 366 at 371. Bell rightly points out that it is wrong to assume that negative declarations are per se an example of forum shopping (see 685-690) because such a declaration may be sought in the natural forum. In Rowland v. Gulfpac Ltd., etc., n. 17 above, Rix J referred to the above cases which warn against the desirability of negative declarations, "particularly in a forum shopping context", and said that the action before him was in effect a negative declaration and therefore he would only exercise jurisdiction with "great care". He was influenced by the fact that the American positive proceedings (for bankruptcy) were already being administered in Idaho and that the crucial issues were governed by American insolvency law. Therefore the plaintiffs in the English action were denied leave to serve because they had not shown that England was clearly the more appropriate forum. Hopefully Rix J's comment that negative declarations are suspect in a forum shopping context is a move away from the simplistic assumption that seeking a negative declaration is per se an act of forum shopping.

³⁸ N. 37 above.

³⁹ [1976] 2 Lloyd's Rep 10 at 14. The quotation from Lord Sterndale is from a decision when he was still Lord Justice Pickford in Guaranty Trust Company of New York v. Hannay & Co. [1915] 2 KB 536 at 564-565. The quotations were made by Sir Michael Kerr in FNBB v. UBS, n. 37 above, at 36-37.

⁴⁰ N. 37 above at 38. His reasoning was concurred in by Russell LJ and Sir Stephen Brown, P.

⁴¹ See the Trade Indemnity case, nn. 17 and 27 above.

⁴² See Bank of Baroda v. Vysya Bank, nn. 17 and 26 above, at 96.

⁴³ N. 36 above, at 173.

⁴⁴ N. 26 above, at 594. Discussed further at nn. 31 and 64.

⁴⁵ N. 27 above, at 364. Bingham LJ pointed out that the fact that the bulk of the witnesses spoke Spanish was a "significant matter in an action where credibility is very much in issue" (at 367).

⁴⁶ Banco Atlantico, n. 24 above, at 510. Lord Justice Bingham may take a different view where the company is registered in England but simply has a "ghostly legal existence" there carrying on all its business in another country, see Re Harrods (Buenos Aires) Ltd. (No 2), n. 27 above at 367.

⁴⁷ N. 36 above, at 173.

⁴⁸ N. 15 above, at 486. He cited in support of this approach Lord Sumner in Société du Gaz, n. 5 above, at 20.

⁴⁹ N. 34 above, at 190.

⁵⁰ N. 15 above, at 604. The decision was affirmed by an Extra Division, 1994 SLT 232.

⁵¹ See Bank of Baroda v. Vysya Bank, n. 17 above, at 96 and the Gann case, n. 26 above, at 537.

⁵² See Bank of Baroda v. Vysya Bank, n. 17 above, at 98.

⁵³ See nn. 37-40 above.

⁵⁴ Nn. 37-40 above and Midland Bank Plc. v. Laker Airways Ltd. [1986] QB 689. If the negative declaration is being sought in the alternative forum then this is a factor against staying the English proceedings, see Sohio v. Gatoil n. 37 above, 593.

⁵⁵ See the articles by Bell and Davenport, n. 37 above. Bell (at 686) cites the Gann case, n. 26 above at 537, as an example of where an English court did not assume that seeking a negative declaration in a foreign forum was necessarily wrong. However, the case is at best rather weak support for Bell s viewpoint because Hirst J's reasoning on the significance of an action for a negative declaration was brief and less than clear. For other reasons this was a case where England was clearly the appropriate forum, see n. 26 above.

⁵⁶ See Charm Maritime v. Kyriakou, n. 25 above, at 448 and 451; and Meadows v. ICI, n. 34 above, at 190.

⁵⁷ N. 36 above.

⁵⁸ N. 15 above.

⁵⁹ Ibid. 471. See the comments of Lord Goff at 485-486 about the steep "learning curve" where lawyers and experts grapple with difficult scientific questions in protracted litigation. In Bank of Baroda v. Vysya Bank, n. 17 above, Mance J, in deciding that England was the appropriate forum, took into account the fact that there had been extensive English proceedings arising out of the problems affecting the underlying transaction and therefore Vysya Bank (which wanted the action litigated in India) had English lawyers who were already well briefed about the background at the time when the present action was begun (at 96-97).

⁶⁰ See Charm Maritime v. Kyriakou , n. 25 above, at 447 and 451.

⁶¹ Ibid.

⁶² Ibid.

⁶³ See nn. 25 and 56 above.

⁶⁴ Nn. 26, 31 and 44 above.

⁶⁵ Ibid. 594-595.

⁶⁶ [1991] 2 QB 206.

⁶⁷ Ibid. 246.

⁶⁸ See Bank of Baroda v. Vysya Bank, n. 17 above, at 98. The fact that the winning party can recover his own costs in England but not in California was regarded as being of significance in granting leave to serve in Agrafax Public Relations Limited, etc., n. 17 above, because the costs of the litigation were disproportionate to the amount at stake. Winning the law but not being able to recover one s own costs would be a pyrrhic victory. It is not clear whether Henry LJ was invoking this point in the context of weighing the relative appropriateness of California and England or whether he was relying on the justice exception.

⁶⁹ See Connelly v. RTZ Corporation PLC and Another, The Independent, September 29, 1995; The Times, October 20, 1995 (C.A.). Judgment was given on 18 August 1995, see LEXIS transcript. The Court of Appeal was unanimous that the availability of legal aid for the plaintiff in England and its non-availability in Namibia was not a good reason to deny the plea of forum non conveniens. It was common ground between the parties that Namibia was the forum with which "the action has the most real and substantial connection" and that the plaintiff in the English action would not be able to pursue his action in Namibia due to his lack of money and the non-availability of legal aid there. Counsel for the plaintiff argued that the stay could not be granted because in these circumstances Namibia is not a forum "in which the case may be tried more suitably for the interests of all the parties and for the ends of justice". The majority of the Court of Appeal (Swinton Thomas and Neill LJJ) rejected the plaintiff s argument on the narrow ground that s. 31(1) of the Legal Aid Act 1988 forbids the courts from taking into account the fact that a party to the proceedings has legal aid when applying "the principles on which the discretion of any court or tribunal is normally exercised". Thus when exercising the discretion to decide whether to uphold a plea of forum non conveniens or not the fact that a party has legal aid must be treated as neutral. The principle lying behind this statutory provision is to prevent litigants in receipt of legal aid being discriminated against or being given advantages over other litigants. Waite LJ reached the same conclusion but on rather wider grounds: (a) it would be contrary to international comity to make the levels of state assistance for litigation determinative of forum non conveniens and (b) comparisons of public assistance in different fora can be difficult and this is not appropriate when deciding the plea of forum non conveniens at an early stage of litigation and often as a matter of urgency.

⁷⁰ See Bank of Credit & Commerce Hong Kong Ltd. (in liquidation) v. Sonali Bank [1995] 1 Lloyd's Rep. 227 at 238, the unreported case cited therein (Adria Services Y.U. v. Grey Shipping Co. Ltd., judgment of Clarke J on July 30, 1993) and Standard Chartered Bank v. Pakistan National Shipping Corporation and Others [1995] 2 Lloyd's Rep. 365 at 378.

⁷¹ For a discussion of these issues see the works of Bell, Collins, Davenport and Fentiman, n. 37 above, and Herzog, "Brussels and Lugano, Should you Race to the Courthouse or Race for a Judgment?" (1995) 43 AJCL 379, esp. at 398.

[end of document]