The ordinary principles of international comity were invaded when courts permitted service out of jurisdiction and that the courts should therefore approach with circumspection any application for leave to serve a foreigner out of the jurisdiction. It is an ‘exhorbitant jurisdiction’, and should be ‘exercised with caution and with a bias against invading the sovereignty of a foreign State’ (Lord Simonds). A master or judge may on some occasions be obliged to assess the relative strength of the parties’ cases. In doing so, he does not try the case on the affidavits, because he reaches only a provisional conclusion: the stage for trial and for final decision has not been reached. But he must have regard to all the admissible material before him not just the plaintiff’s case. He must conclude that there is a good arguable case (Lord Simonds), not just a case that can be argued, or a strong argument (Lord Radcliffe).
Lord Radcliffe said: ‘It seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial court judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of Lord Goff in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere.’
Judges:
Lord Radcliffe, Lord Simonds
Citations:
[1951] AC 869, [1951] 2 All ER 334
Jurisdiction:
England and Wales
Citing:
View rejected – Malik v Narodni Banka Ceskoslovenska 1946
(Orse Malik v National Bank of Czechoslovakia) The evidential standard for establishing that one of the jurisdictional gateways applied was the civil burden of proof. . .
Cited by:
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.
International, Litigation Practice, Jurisdiction
Updated: 27 November 2022; Ref: scu.416455