G.A.F. Corporation v Amchem Products Inc.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE STAMP |
| Judgment Date | 05 March 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0305-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 1975 |
[1975] EWCA Civ J0305-3
Lord Justice Russell and
Lord Justice Stamp
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Mr Justice Megarry.
Mr R.A. MacCRINDLE, Q.C. and Mr R.O. HAVERY (instructed by Messrs Bristows, Cooke & Carpmael) appeared on behalf of the Appellants (Plaintiffs).
Mr D.J. NICHOLLS, Q.C. and Mr A.E.D. WATSON (instructed by Messrs Herbert Smith & Co.) appeared on behalf of the Respondents (Defendants).
This is an appeal from an Order of Mr Justice Megarry, who set aside the service of notice of the Writ on the Defendants in the United States of America and the Writ.
There is initially a question, since leave was refused to appeal by Mr Justice Megarry, whether leave to appeal is in fact necessary. I do not propose to waste any time on that, because we have heard the appeal so far as we think it is necessary, and indeed propose to dismiss it. So, if leave is necessary, then pro2 forma we give leave to appeal.
Before Mr Justice Megarry it was debated whether this particular case came at all under any heading of Order 11, rule 1, the headings (g) and (i) being contended for on behalf of the Plaintiffs. The Judge considered that, as a matter of substance, neither had been shown to apply. I do not think we need rule upon this. Indeed, we have not heard full argument on it. The reason why we need not rule, and why we did not hear full argument, is this: that we are clearly of opinion that on the assumption that the case does come within rule 1, the Judge's exercise of his discretion on that assumption cannot be faulted.
The substance of the Plaintiff's case is that the Defendant has obtained a grant of a United Kingdom patent for the use of a chemical compound in its application as a plant growth regulator and/or herbicide. This, it is said, was only obtained in breach by the Defendant of an obligation of confidence arising under a contract between the Plaintiff and the Defendant, and that in the circumstances the Plaintiff is beneficially entitled to the United Kingdom patent.
Now, the following facts exist. First, both the Plaintiff and the Defendant are United States corporations resident and carrying on business there. Second, the proper law of the contract is not English; it is either the law of the State of Delaware or of, I think, Philadelphia. Thirdly, any factual evidence about the circumstances of disclosures by the Plaintiff to the Defendant, and any other matters, will necessarily relate to events that took place in the United States of America. Fourthly, there are proceedings pending in the United States by the Plaintiff against the Defendant which have gone some considerable distance, including (as I understand it) pre-trial depositions, in which the same claim is made by the Plaintiff in respect of, among other matters, this United Kingdom patent, upon the same factual and contractual basis as is proposed in the English action. Fifthly, all relevant documents and witnesses are in or based in the United States.
In the light of those facts, it is in my view plain that the appropriate and proper forum for the decision of the matters which are sought to be ventilated in the English action is the American Court and the American proceeding. It was argued for the Plaintiff that, provided the action came within a head of rule 1 (which, for present purposes, I am assuming without deciding) the discretion reposed in the Judge could be exercised against allowing service outside the jurisdiction if it appeared, and...
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