MacShannon v Rockware Glass Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WALLER |
| Judgment Date | 16 February 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0216-1 |
| Docket Number | 1975 M. No. 6897 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 1977 |
[1977] EWCA Civ J0216-1
The Master of the Rolls (Lord Denning)
Lord Justice Stephenson and
Lord Justice Waller
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice (Mr. Justice Goff)
MR. J.F. WILMER, Q.C., MR. A.M. KENNY and MR. RIPMAN (instructed By Messrs. Robin Thompson & Partners, Solicitors, London) appeared on behalf of the Plaintiff (Respondent) MacShannon.
MR. REYNOLD (instructed by John L. Williams, Solicitor, London) appeared on behalf of the Plaintiff (Respondent) Fyfe.
MR. J. PLAYFORD (Instructed by Messrs Davies Arnold & Cooper, Solicitors, London) appeared on behalf of both Defendants (Appellants).
As you might guess, Peter McKinley MacShannon is a Scotsman, No doubt he was born in Scotland and has lived there all his life. Proud, no doubt, of his native land and its laws. In April 1975 he was working in a factory at Irvine, about twenty miles south-west of Glasgow. By some mischance a movable screen fell on him and he was injured. Not very seriously. Nothing broken. Only severe bruising of the muscles. You would have thought that, in order to get compensation, he should go to a local solicitor and bring an action in the local sheriff's Court in Ayrshire. But he did not do it. The reason was because he was a member of a large Trade Union who handle all claims of their members from headquarters in London and solicitors in Essex. They discovered that the Company for whom Mr. McKinley MacShannon was working had their head office in London. So on his behalf they issued a writ in the High Court of Justice in London and delivered a Statement of Claim here.
Likewise with another good Scotsman, Kenneth Duncan Fyfe. His name betrays him, too. No doubt he was born and bred in Scotland, too, and proud of its laws. He was working in a factory at Methil, which is on the north side of the Firth of Forth, 15 miles across the water from Edinburgh. He was working on a production platform for an oil well. He was walking along a steel leg when he tripped over some obstruction and fell and injured himself. Not very severely. Only cuts and bruising on his left knee. Again you would think that, in order to get compensation;, he should go to a local solicitor and bring an action in the Sheriff's Court in Fifeshire. But he also did not do it. The reason was because he was a member of an association which had its headquarters in London and had an experienced solicitor in Southampton Row. The solicitor foundout that the occupiers of the factory were Redpath Dorman Long, who had their head office in Grovenor Place, London. So on Mr. Fyfe's behalf, he issued a writ in the High Court of Justice in London and delivered a Statenent of Claim here.
These are not two isolated cases. Many other good Scotsmen are doing the same. When they are injured in Scotland, they are bringing their actions in London. This has been noticed especially in the last two years. It happens in this way: The Scotsmen are employed in Scotland by English Companies. These have places of business in Scotland and could easily be sued there. But they have head offices in London, So writs can be issued against them here and served hero. The insurers of these companies, such as the Eagle Star, feel that this is getting out of hand. So they have applied to stay the English proceedings. They say that these men ought to bring their claims in the natural forum in Scotland, and not in England.
The lower Courts have been in two minds about it. In February 1976, when a Scotswoman brought an action for damages in the Brentford County Court, Judge Barr stayed her action there and told her to continue in Scotland. In December 1976, when a Scotsman brought an action against the Minister of Defence, Mr. Justice Slynn stayed the action in England and said it should be brought in Scotland. But in the two cases now before us Mr. Justice Robert Goff has not stayed the English actions. He has allowed them to go on. This is an appeal from his decisions.
The law on this subject was reviewed by the House of Lords in The Atlantic Star (1974) Appeal Oases 436. To my mind the House there effected a considerable change. Previously we were disposed to think too much of our own legal system. It was sosuperior to all others that, if a Plaintiff managed to serve a Defendant whilst he was in this country, we nearly always let him continue with it. Time and time again we said that when a Plaintiff has validly invoked the jurisdiction of these Courts — by serving the Defendant here without having to ask the leave of anyone — he is prima facie entitled to pursue it to the end. No matter that his action arose in a far-off land, it was not to he stayed unless it was vexatious or oppressive or otherwise an abuse of the process of the Court, see Mahanenee of Baroda v. Wildenstein (1972) 2 Queen's Bench 283 at page 292; The Atlantic Star (1975) 2 Weekly Law Reports at page 38½.
In so laying down the law, we were going back in mind to the days which Lord Reid described as "the good old days when inhabitants of these islands felt an innate superiority over those unfortunate enough to belong to other races", see page 453G Those good old days are gone. Our entry into the Common Market has brought many changes. One of them is the recognition that the legal systems of other countries have their merits, too: and we must learn to live with them. So much so that I would suggest if a claim arises in another country with a fully-developed legal system — and that country is the natural forum for its determination, both Plaintiff and Defendant being resident there — then prima facie the claim should be pursued in that country. It should not be brought in this country unless some good and sufficient reason is shown. That appears clearly enough from Lord Reid's words in The Atlantic Star (1974) Appeal Cases at page 454: "So I would draw some distinction between a case where England is the natural forum for the Plaintiff, and a case where the Plaintiff comes merely to serve his own ends. In the former, the Plaintiff should not be 'driven fromthe judgment seat' without very good reason, hut in the latter the Plaintiff should, I think, be expected to offer some reasonable justification for his choice of forum if the Defendant seeks a stay".
If, however, the Plaintiff does give reasonable justification for bringing his action in this country, then it will not be stayed unless the Defendant can show that the continuance of it would be oppressive or vexatious to him, or would be an abuse of the Court in some other way: but it must be remembered that expense or inconvenience does amount to oppression or vexation — sec The Atlantic Star (1974) Appeal Gases at page 468 by Lord Wilberforce.
Applying these principles, it is plain that the natural forum for the claims of each of these two men is Scotland. Bach was a Scotsman. Each lived and worked in Scotland. The accident was in Scotland. It was at the factory of the Defendants there, and they can be served in Scotland. What justification is there for either of the Plaintiffs suing the Defendants in England? This is what is said by his solicitor in an affidavit. The Plaintiff submits: (a) that he would risk being awarded lower damages if the case were to proceed before the Scottish Courts; (b) that he would bo involved in a longer legal process in the Scottish Courts (which type of process was abandoned by the English Courts ii. 1875); (c) that he would have less certainty of result from the legal process and relies on the views of Lord Diplock in 1973 Scottish Law Times; (d) that in the Scottish Courts he would be subjected to a trial on the Pleadings rather than a trial on the facts and merits, as in England; (e) that in Scotland he would be involved in a more expensive legal process (g) that in Scotland he would face the necessity forgreater corroboration than is required in Courts in England; (h) that on being successful he will be unlikely to obtain equivalent party and party costs whereby his liability to pay higher solicitor and client costs would reduce the benefit of the claim to him.
Now each one of those reasons comes to this: that he will do better under the English legal system than under the Scottish legal system. Is that a sufficient justification for his bringing his action in England? I think not. He has lived under Scots law all his life. He should take its legal system — like his wife — for better or for worse. He cannot take it or leave it as it suits him best. If he went to a Boots lawyer in Edinburgh or Glasgow, I an perfectly certain that ho would be advised to bring his claim in Scotland, rather than in England. All the Scots lawyers that I have met have a great sense of the superiority of their system over ours. Let it be so. All the more reason why ho should bring his action in Scotland rather than in England.
Suppose a similar accident took place in France, say at Calais or Rouen. Would anyone suppose for a moment that a Frenchman could bring an action for damages here because his employers had their head office in London? Clearly not. A Scotsman should be in no better position than a Frenchman.
It might be different if the man could show some special personal reason for bringing an action in England. For instance, if his homo was in England, and after the accident he returned home here. There would be a personal advantage to him which would outweigh any disadvantage to the Defendant — see Devinev. Cementation (1963) Northern Ireland 65; as explained by Lord Wilberforce in The Atlantic Star (1974) Appeal Cases at page 469.But these two Scotsmen have no personal...
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