A plaintiff must show that there is a ‘serious issue for trial’ to support and justify an application for overseas service. The standard of proof in respect of the cause of action relied on is whether, on the evidence, there was a serious question to be tried, i.e. a substantial question of fact or law, or both, which the claimant bona fide desired to have tried.
Lord Goff said: ‘it is difficult to see why the fact that the writ is to be served out of the jurisdiction should have any particular impact upon the standard of proof required in respect of the existence of the cause of action. On this point, I find myself in respectful disagreement with the opinion expressed by Lloyd LJ to the contrary in the Court of Appeal [1993] 1 Lloyd’s Rep. 236, 242. I prefer the approach of Stuart-Smith LJ when . . he commended his preferred view as consonant with common sense and policy, and continued:
‘It seems to me to be wholly inappropriate once the question[s] of jurisdiction and forum [conveniens] are established for there to be prolonged debate and consideration of the merits of the plaintiffs’ claim at the interlocutory stage.’
It has been suggested that, since both the assessment of the merits of the plaintiff’s claim and the principle of forum conveniens fall to be considered as elements in the exercise of the court’s discretion, these should be regarded as interrelated in the sense that ‘the more conspicuous the presence of one element the less insistent the demands of justice that the other should also be conspicuous:’ see Societe Commerciale de Reassurance v. Eras International Ltd.(formerly Eras (U.K.) [1992] 1 Lloyd’s Rep. 570, 588, per Mustill L.J. This approach originated in the speech of Lord Oaksey in Korner’s case, at pp. 881-882, to the effect that the strength of the evidence in that case as to forum conveniens was such that only the slightest evidence was required of there having been a breach of contract within the jurisdiction. Lord Oaksey’s speech also provided the inspiration for an expression of opinion by Parker L.J. to the effect that, if there is overwhelming evidence that England is the appropriate forum, it will be enough that, on the merits, the plaintiff’s case is worthy of serious consideration: see Overseas Union Insurance Ltd. v. Incorporated General Insurance Ltd. [1992] 1 Lloyd’s Rep. 439, 448, and see also. [1991] 2 Lloyd’s Rep. 19, Banque Paribas v. Cargill International S.A 25. I must however express my respectful disagreement with this approach. Suppose that, for example, the plaintiff’s case is very strong on the merits. If so, I cannot see that a case particularly strong on the merits can compensate for a weak case on forum conveniens. Likewise, in my opinion, a very strong connection with the English forum cannot justify a weak case on the merits, if a stronger case on the merits would otherwise be required. In truth, as I see it, the two elements are separate and distinct. The invocation of the principle of forum conveniens springs from the often expressed anxiety that great care should be taken in bringing before the English court a foreigner who owes no allegiance here. But if jurisdiction is established under rule 1(1), and it is also established that England is the forum conveniens, I can see no good reason why any particular degree of cogency should be required in relation to the merits of the plaintiff’s case.
Once it is recognised that, so far as the merits of the plaintiff’s claim are concerned, no more is required than that the evidence should disclose that there is a serious issue to be tried, it is difficult to see how this matter, although it falls within the ambit of the court’s discretion, has not in practice to be established in any event. This is because it is very difficult to conceive how a judge could, in the proper exercise of his discretion, give leave where there was no serious issue to be tried. Accordingly, a judge faced with a question of leave to serve proceedings out of the jurisdiction under Order 11 will in practice have to consider both (1) whether jurisdiction has been sufficiently established, on the criterion of the good arguable case laid down in Korner’s case, under one of the paragraphs of rule 1(1), and (2) whether there is a serious issue to be tried, so as to enable him to exercise his discretion to grant leave, before he goes on to consider the exercise of that discretion, with particular reference to the issue of forum conveniens.’
Judges:
Lord Goff of Chieveley
Citations:
Independent 20-Oct-1993, Times 15-Oct-1993, Gazette 17-Nov-1993, [1994] 1 AC 438, [1993] 4 All ER 456, [1994] 1 Lloyds Rep 1, [1993] 3 WLR 756
Statutes:
Rules of the Supreme Court Order 11 Rule 1(1) 1(4)
Jurisdiction:
England and Wales
Cited by:
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Cited – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 09 February 2022; Ref: scu.89080