MacShannon v Rockware Glass Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Salmon,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Keith of Kinkel |
| Judgment Date | 26 January 1978 |
| Judgment citation (vLex) | [1978] UKHL J0126-6 |
| Court | House of Lords |
| Date | 26 January 1978 |
[1978] UKHL J0126-2
Lord Diplock
Lord Salmon
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Fyfe against Redpath Dorman Long Limited, That the Committee had heard Counsel, as well on Monday the 28th, as on Tuesday the 29th and Wednesday the 30th, days of November last, as on Thursday the 1st day of December last, upon the Petition and Appeal of Redpath Dorman Long Limited whose registered office in the United Kingdom is situate in 33 Grosvenor Place, London, S.W. 1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 16th of February 1977, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of Kenneth Duncan Fyfe, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 16th day of February 1977, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be. and the same is hereby, Remitted back to the Queen's Bench Division of the High Court of Justice with a Direction that this action be stayed under the Courts inherent jurisdiction leaving the Respondent in this House Kenneth Duncan Fyfe at liberty to commence proceedings in Scotland: And it is further Ordered, That the Respondent do pay or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
Each of these four appeals is concerned with a claim for damages for personal injury or disability (deafness) sustained by the plaintiff in the course of his employment in a factory in Scotland, and alleged to be due to negligence on the part of his employer. In each case the employer was a company whose head office is in England. It was this alone that made it possible for a High Court writ to be served upon the employer in England. None of the four actions has any other connection with England and each of the employers could have been served at their places of business in Scotland with proceedings in the local sheriff's court or the Court of Session.
Two of the appeals, Redpath Dorman Long Ltd. v. Fyfe ("the Fyfe appeal") and Rockware Glass Ltd. v. MacShannon ("the MacShannon appeal") are from a judgment of the Court of Appeal who by a majority (Stephenson and Waller L.JJ., Lord Denning M.R. dissenting) dismissed the employer's appeal from the order of Robert Goff J. refusing to stay the actions under the inherent jurisdiction of the court. The other two, British Steel Corporation v. Jardine ("the Jardine appeal") and Stone Manganese Marine Ltd. v. Paterson ("the Paterson appeal") come this House by the leap-frog procedure directly from a similar refusal by Griffiths J. who regarded himself as bound by the Court of Appeal decision in the Fyfe and MacShannon appeals.
All three members of the Court of Appeal acknowledged that Scotland was the natural and appropriate forum for the Fyfe and MacShannon actions. Stephenson L.J., expressed it most emphatically in terms which I am ready to adopt, when he said:
"Anyone with nothing but common sense to guide him would say that they ought to be tried in Scotland."
Nevertheless he considered that the decision of this House in The Atlantic Star [1974] A.C. 436 compelled him to follow a course which was contrary to common sense and so to allow the actions to proceed in England. It thus becomes necessary for this House to consider whether the ratio decidendi of the majority of this House in The Atlantic Star must indeed have this lamentable consequence.
In The Atlantic Star what divided the majority of the House (Lord Reid, Lord Wilberforce and Lord Kilbrandon) from the Minority (Lord Morris of Borth-y-Gest and Lord Simon of Glaisdale) was not a difference as to the terms in which the relevant law had been laid down in the previous cases. The speeches of both Lord Wilberforce and Lord Morris of Borth-y-Gest contain very similar analyses of the authorities, of which the most important had been decided in the 1880's within a few years after the coming into force of the Judicature Act. Both the majority and the minority accepted that the existing law as it had been understood for some ninety years before The Atlantic Star was accurately stated in the oft-cited passage from the judgement of Scott L.J. in St Pierre v. South American Stores (Gath & Chaves) Ltd. [1936] 1 K.B. 382, at 398:
"The true rule about a stay under section 41, so far as relevant to this case, may I think be slated thus: (1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English court if it is otherwise properly brought. The right of access to the King's court must not be lightly refused. (2) In order to justify a stay two conditions must be satisfied, one positive and the other negative: ( a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and ( b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. These propositions are, I think, consistent with and supported by the following cases: McHenry v. Lewis, 22 Ch.D. 397; Peruvian Guano Co. v. Bockwoldt, 23 Ch.D. 225; Hyman v. Helm, 24 Ch.D. 531; Thornton v. Thornton, 11 P.D. 176; and Logan v. Bank of Scotland (No. 2) [1906] 1 K.B. 141, 150, 151."
The positive condition which must be satisfied to justify staying an action of which process has been lawfully served upon the defendant is here stated to be conduct which can be characterised as "oppressive" or "vexatious". Both in ordinary parlance and as terms of art in relation to the procedure of the courts these terms connote an element of moral blameworthiness—a desire on the plaintiff's part to harass the defendant by putting him to unnecessary trouble or expense, rather than to improve the plaintiff's own prospects of success or enhance what he stands to gain from the litigation. As pointed out by Lord Morris of Borth-y-Gest, this was the meaning which had been uniformly attributed to the words "oppressive" and "vexatious" by judges in all cases subsequent to St. Pierre in which Lord Justice Scott's statement of the law had been applied.
In The Atlantic Star, this House was specifically invited to discard Scott L.J.'s statement as an authoritative exposition of the principles on which a stay of proceedings ought to be granted in English law and to substitute for it the Scottish legal doctrine of forum non conveniens. The House unanimously rejected this invitation. The minority were of opinion that this House should leave unchanged the English law upon the topic as it had hitherto been expounded and applied, particularly in admiralty jurisdiction. The majority, however, were of opinion that the time was ripe for some further development of the common law which, as Lord Reid put it, would bring it more into line with the policy of Parliament and the movement of public opinion, and render it less reminiscent of "the good old days, the passing of which many may regret, when the inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races".
It would not be consonant with the traditional way in which judicial precedent has played its part in the development of the common law of England, to attempt to incorporate holus bolus from some other system of law, even so close as that of Scotland, doctrines or legal concepts that have hitherto been unrecognised in English common law. The progress of the common law is gradual. It is undertaken step by step as what has been stated in a previous precedent to be the law is re-examined and modified so as to bring it into closer accord with the changed conditions in which it falls to be applied today. But this is not to say that the result of proceeding by the latter course of reasoning will necessarily be very different from that which would have been achieved by adopting into English law a concept from some other legal system. Destinations that are very close to one another may be reached by different routes. So there would be nothing surprising in the fact that in rejecting as the approprate route the importation into English common law of the Scots doctrine of forum non conveniens in favour of the more traditional method of developing this branch of the common law from where the precedent in St. Pierre had left it in 1936, the majority of the House had nevertheless reached a result which could invite the comment by Lord Simon of Glaisdale:
"That would be to...
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