Judgments - Schalk Willem Burger Lubbe (Suing as Administrator of the Estate of Rachel Jacoba Lubbe) and 4 Others and Cape Plc. and Related Appeals

(back to preceding text)

    In the light of these authorities I would have regarded the undertakings which were offered by the defendant in this case as sufficient to satisfy the requirement that the alternative forum in South Africa was available because it had undertaken to submit to the jurisdiction of the courts of that country. Nothing turns on the time when the undertakings were given. It is sufficient that they were before the judge when he was considering the question of forum non conveniens. As for the suggestion that the defendant was choosing its jurisdiction and thus indulging in a kind of forum shopping, this overlooks the fact that the issue as to forum non conveniens is for the court itself to resolve. It is not a matter that is left to the choice of the defender. Furthermore the court resolves the issue by looking to the interests of all parties and the ends of justice. As Lord Justice-Clerk Alness said in Société du Gaz de Paris v. Armateurs Français, 1925 S.C. 332, 347, it does not do so from the point of view of the defender only. The only purpose of the undertaking is to satisfy the requirement that the other forum is available. The ground on which the jurisdiction of the courts in the other forum is available to be exercised is of no importance either one way or the other in the application to the case of the Spiliada principles.

Public Interest

    In my opinion the principles on which the doctrine of forum non conveniens rest leave no room for considerations of public interest or public policy which cannot be related to the private interests of any the parties or the ends of justice in the case which is before the court.

    In Société du Gaz v. Armateurs Français, 1925 S.C. 332, 361, where jurisdiction was established over the defender by an arrestment to found jurisdiction, Lord Anderson rejected the extreme argument that that case ought not to be litigated in Scotland at all as it was an action between two foreigners. He said:

    "Anyone who succeeds in founding jurisdiction in this way seems to me to be entitled, as of right, to invoke the exercise of the jurisdiction so founded, and the court can only refuse to exercise the jurisdiction invoked if a defence of forum non conveniens is established."

In the House of Lords, 1926 S.C. (H.L.) 13, 21 Lord Sumner was alluding to the same point when he said:

    "Obviously the court cannot allege its own convenience, or the amount of its own business, or its distaste for trying actions which involve taking evidence in French, as a ground for refusal…the court has to proceed until the defender objects, but, as against the pursuer's right, the defender has an equal right to plead forum non conveniens."

In MacShannon v. Rockware Glass Ltd. [1978] A.C. 795, 822D Lord Salmon said that he did not think that matters of general policy should play any part in deciding issues of this kind, and Lord Keith of Kinkel made an observation to the same effect at p. 833D.

    The proper approach therefore is to start from the proposition that a claimant who is able to establish jurisdiction against the defendant as of right in this country is entitled to call upon the courts of this country to exercise that jurisdiction. So, if the plea of forum non conveniens cannot be sustained on the ground that the case may be tried more suitably in the other forum, in the words of Lord Kinnear in Sim v. Robinow (1892) 19 R. 665, 668, "for the interests of all the parties and for the ends of justice", the jurisdiction must be exercised - however desirable it may be on grounds of public interest or public policy that the litigation should be conducted elsewhere and not in the English courts. On the other hand, if the interests of all parties and the ends of justice require that the action in this country should be stayed, a stay ought to be granted however desirable it may be on grounds of public interest or public policy that the action should be tried here.

    I would therefore decline to follow those judges in the United States who would decide issues as to where a case ought to be tried on broad grounds of public policy: see Union Carbide Corporation Gas Plant Disaster at Bhopal (1986) 634 F. Supp. 842 and Piper Aircraft Company v. Reyno (1981) 454 U.S. 235 . I respectfully agree with Deane J.'s observation in Oceanic Sun Line Special Shipping Company Inc. v. Fay [1988] 165 C.L.R. 197, 255 that the court is not equipped to conduct the kind of inquiry and assessment of the international as well as the domestic implications that would be needed if it were to follow that approach. However tempting it may be to give effect to concerns about the expense and inconvenience to the administration of justice of litigating actions such as these in this country on the one hand or in South Africa on the other, the argument must be resolved upon an examination of their effect upon the interests of the parties who are before the court and securing the ends of justice in their case. I would hold that considerations of policy which cannot be dealt with in this way should be left out of account in the application to the case of the Spiliada principles.


My Lords,

    For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead, I too agree with the order which Lord Bingham of Cornhill has proposed.


Lords Parliament Commons Search Contact Us Index

© Parliamentary copyright 2000
Prepared 19 July 2000