The Atlantic Star; Atlantic Star (Owners) v Bona Spes (Owners)
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Wilberforce,Lord Simon of Glaisdale,Lord Kilbrandon |
| Judgment Date | 10 April 1973 |
| Court | House of Lords |
[1973] UKHL J0410-1
House of Lords
Lord Reid
Lord Morris of Borth-y-Gest
Lord Wilberforce
Lord Simon of Glaisdale
Lord Kilbrandon
Upon Report from the Appellate Committee, to whom was referred the Cause Owners of Motorship or Vessel "Atlantic Star" against Owner of Motorship or Vessel "Bona Spes" (The "Atlantic Star"), That the Committee had heard Counsel, as well on Monday the 12th, as on Tuesday the 13th, Wednesday the 14th, Tuesday the 20th, Wednesday the 21st and Thursday the 22d, days of February last, upon the Petition and Appeal of the Owners of the Motorship or Vessel "Atlantic Star", 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 27th of July 1972, 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 the Owner of the Motorship or Vessel "Bona Spes"; 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 27th day of July 1972, 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 Admiralty Court with a Direction that all further proceedings in the action in rem be stayed: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the the said Respondent the Costs incurred by him up to the 2d day of February 1972: And it is also 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 after the 2d day of February 1972, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments.
My Lords,
In this case the Appellants ask us to review the law regarding stay of proceedings in an English court in cases where proceedings with regard to the same matter have been or will be brought in a foreign court. This case arises out of the arrest in an English port of a Dutch vessel, the Atlantic Star, belonging to the Appellants who are large and well-known Dutch shipowners. The Respondents are a Dutch company who owned a barge which was sunk in Belgian waters in a collision with the Atlantic Star. They allege that this was due to the fault of the Appellants' vessel and in order to recover damages they arrested the Appellants' vessel in this country. Thereby they founded jurisdiction against the Appellants in England and on release of the vessel obtained ample security to cover their claim. They were entitled to do this but the Appellants seek a stay of their action in England because the Belgian court is the proper forum to deal with the Respondents' claim.
The facts have been fully, accurately and clearly stated by Brandon J. in his judgment in the Admiralty Court ( [1972] 1 Lloyd's Rep. 534) and I shall only state such of the facts as are relevant to the determination of the question now before your Lordships.
The collision occurred in dense fog in the Schelde on the night of 27th January, 1970. Three vessels were involved. The third vessel began proceedings in Belgium on 29th January. It appears that the normal course in Belgium is for the Court to appoint a Court Surveyor to enquire into the circumstances and causes of the collision and this was done. On 16th February, 1970, the Respondents were joined in the enquiry. The Surveyor took statements from witnesses and collected various reports and documents. The Respondents' lawyers were present. In February, 1971, the Surveyor made his report. It appears to point to a conclusion that the Atlantic Star was not at fault. Apparently the Belgian Court generally agrees with the Surveyor's reports, so the Respondents might well fail if their case against the Appellants proceeds in Belgium.
So in June, 1971, when the Atlantic Star was calling at an English port they began proceedings in England where they think for various reasons that they have a better chance of success.
Brandon J. said:
"I have no doubt at all that, so far as convenience is concerned, the Commercial Court of Antwerp is by far the more appropriate forum".
He gave five main reasons for this, including the place of collision, the fact that the case is governed by Belgian law and local regulations, the fact that five other claims arising out of the collision are pending in Antwerp, the fact that by reason of an offer made by the Appellants full security will be available there; and he said:
"the case has absolutely no connection with England, except that, because the defendants' ship trades from time to time to an English port, she is liable to arrest here."
But following the trend of modern authority he felt bound to refuse to stay this action, and this decision was upheld in the Court of Appeal. The authorities are dealt with by my noble and learned friend, Lord Wilberforce, and I shall not repeat that examination. They support the general proposition that a foreign plaintiff, who can establish jurisdiction against a foreign defendant by any method recognised by English law, is entitled to pursue his action in the English courts if he genuinely thinks that that will be to his advantage and is not acting merely vexatiously. Neither the parties nor the subject-matter of the action need have any connection with England. There may be proceedings on the same subject-matter in a foreign court. It may be a far more appropriate forum. The defendant may have to suffer great expense and inconvenience in coming here. In the end the decisions of the English and foreign courts may conflict. But nevertheless the plaintiff has a right to obtain the decision of an English Court. He must not act vexatiously or oppressively or in abuse of the process of the English court, but these terms have been narrowly construed.
It is said that the right of access to the Queen's court must not be lightly refused. In the present case Lord Denning M.R. said:
"No one who comes to these Courts asking for justice should come in vain � This right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our Courts if he desires to do so. You may call this 'forum shopping' if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service".
My Lords, with all respect, that seems to me to recall the good old days, the passing of which many may regret, when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races.
It is a function of this House to try, so far as possible, to keep the development of the common law in line with the policy of Parliament and the movement of public opinion. So I think that the time is ripe for a re-examination of the rather insular doctrine to which I have referred.
The Appellants' counsel first referred to the law of Scotland, where for a very long time the plea of forum non conveniens has been recognised as valid. No doubt it is a desirable objective to diminish remaining differences between the laws of the sister countries. But we must proceed with all due caution. That plea is particularly important in connection with the peculiar Scottish method of founding jurisdiction by arrestment ad fundandam jurisdictione. I cannot foresee all the repercussions of making a fundamental change in English law and I am not at all satisfied that it would be proper for this House to make such a fundamental change or that it is necessary or desirable.
So in my opinion we should seek any change within the existing framework of English law. The existing basis is that the plaintiff must not be acting vexatiously, oppressively or in abuse of the process of the Court. Those are flexible words and I think that in future they should be interpreted more liberally.
There was a time when a judgment obtained in one country was of little use in any other. There was a time when it could reasonably be said that our system of administration of justice, though expensive and elaborate, was superior to that in most other countries. But today we must, I think, admit that as a general rule there is no injustice in telling a plaintiff that he should go back to his own courts.
So I would draw some distinction between a case where England is the natural forum for the plaintiff and a case where the plaintiff merely comes here to serve his own ends. In the former the plaintiff should not be "driven from the judgment seat" without very good reason, but 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 both parties are content to proceed here there is no need to object. There have been many recent criticisms of "forum shopping" and I regard it as undesirable.
I think that a key to the solution of the problem may be found in a liberal interpretation of what is oppressive on the part of the plaintiff. The position of the defendant must be put in the scales. In the end it must be left to the discretion of the Court in each case where a stay is sought, and the question would be whether the defendants have clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the...
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The Atlantic Star; Atlantic Star (Owners) v Bona Spes (Owners)
...Atlantic Star Owners of the Motor Vessel "Atlantic Star" and Owner of the Motor Vessel "Bona Spes" [1973] UKHL J0410-1 Lord Reid Lord Morris of Borth-y-Gest Lord Wilberforce Lord Simon of Glaisdale Lord Kilbrandon House of Lords Upon Report from the Appellate Committee, to whom was referred......