1 [2003] All ER(D) 291.Google Scholar

2 Adoption of forum non conveniens as a basis for staying proceedings is now widespread. The courts in Scotland and in the US (albeit in a slightly different form) had already adopted the doctrine prior to the Spiliada. Since then, the doctrine has been adopted to a greater or lesser extent in a number of common law jurisdictions including Canada, New Zealand, Hong Kong, Singapore, and India, as well as in Australia (although the Australian courts continue to rely to a much greater extent on notions of vexation and oppression). Traditionally civil law jurisdictions have been more hostile to forum non conveniens discretion. The German and French courts have rejected such a discretion, although it has received some degree of statutory recognition in the Netherlands (see generally, Kennett ‘Forum non conveniens in Europe’ [1995] CLJ 552).Google Scholar

3 This wording is taken from the speech of Lord Kinnear in Sim v Robinow (1892) 19 R 665. Lord Goff also referred to another Scottish case, MacShannon v Rockware [1978] AC 795, where Lord Diplock said that the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense.Google Scholar

4 Collins Dicey & Morris the Conflict of Laws (Sweet & Maxwell London 2000) [12–023].Google Scholar

5 [1999] ILPr 113.Google Scholar

6 [2000] 1 Lloyd's Rep 139, 168.Google Scholar

7 [2000] 1 WLR 1545.Google Scholar

8 See further A Briggs The Conflict of Laws (OUP Oxford 2002) 95, where it is stated that an earlier suggestion that a court is not available unless a claimant was able to proceed there ‘as of right’ made in Mohammed v Bank of Kuwait [1966] 1 WLR 1483 was rejected by the House of Lords in Lubbe. In fact the Mohammed case dealt with a different question, ie whether considerations of practical justice could also be considered at the availability stage, a separate question which is not considered further in this article.Google Scholar

9 See, eg, the comments of the court in Bristow Helicopters v Sikorsky Aircraft Corp [2004] EWCH 401, [2004] All ER (D) 112, where the suggestion that the English court should ‘pass the buck’ to the District Court in Connecticut was rejected. Morrison J commented that if it were to abdicate its responsibilities and allow the District Court to decide its approach, unnecessary costs would be involved. However, he also stressed that the fact that the English court was so obviously the correct forum meant that there would be no point in postponing any decision on the application.Google Scholar

10 See Tuckey, LJ inLubbe v Cape 168. See also the opening of the opinion of Lord Walker in Gheewala where he referred to the well-known passage in the Spiliaaa where Lord Templeman said of an application for a stay that he hoped that in future submissions will be measured in hours and not days and added that ‘an application to stay proceedings is essentially a matter of case management (however important the outcome may be to the parties) and (in line with Lord Templeman's observations in Spiliada) it has to be disposed of in a reasonably summary way’.Google Scholar

11 [2001] EWCA 173,Google Scholar[2001]1 Lloyd's Rep 610.Google Scholar

12 This aspect of the decision, although clear, has been controversial. Williams ‘Forum non conveniens, Lubbe v Cape and Group Josi v Universal General Insurance’ JPI Law (2001) 72–7 takes the view that it is quite wrong in principle to allow a defendant to create the possibility of a trial in a jurisdiction of his choosing when, at the time the proceedings were commenced by the plaintiff, the courts of that State had no jurisdiction over the defendant. In his view the decision in Lubbe v Cape can only increase uncertainty in an already uncertain area of litigation. Peel ‘Forum non conveniens revisited’ (2001) 117 LQR 187, on the other hand, supports this aspect of the decision pointing out that if South Africa was indeed shown to be the appropriate forum, it is difficult to see how Cape could be criticized for its undertaking to submit to the South African courts. Furthermore, it seems odd for the claimant to complain that another jurisdiction has been made available for bis claim (particularly when the result may well be that he has greater procedural rights and/or a more enforceable judgment than if there had been no submission) given that he will not be forced to go to that jurisdiction unless it is clearly the most appropriate forum.Google Scholar

13 [1984] 1 WLR 438.Google Scholar

14 [1984] 1 Lloyd's Rep 266, 270.Google Scholar

15 This has been the approach in the US courts: see Piper Aircraft Co v Reyno 454 US 235.Google Scholar