Forum Non Conveniens

A court’s discretionary power to decline to exercise its jurisdiction where another court may more conveniently hear a
case

Stay of Proceeding based on FNC at Common Law

Evaluation of the various test

- St. Pierre v South American Stores (1936) Scott LJ – 2 limbs
o Positive limbs
 Defendant must show that the continuance of the action in the UK court would work on
injustice because it would be oppressive or vexatious to him
o Negative Limbs
 The stay must not cause an injustice to the claimant
o The burden of proof for both limbs lies on the defendant. It’s difficult to prove
- The Atlantic Star (1974) (HOL)
o The house refused to introduce a new test. Instead, the House said that a more flexible St Pierre’s test
shall applied. The St. Pierre’s test must be applied more liberally in future
o What is the meaning of ‘flexible’ and ‘liberally’? No explanation was provided. These has showed the
court is reluctant to stay
- MacShannon v Rockware Glass (1978)
o All the judges in this case except Lord Keith were in favour of discontinuing the St Pierre test
o Lord Salmon – ‘… the real test of stay or not stay depends upon what the court in its discretion
consider that justice demands…’
o The claimant was a Scotsman, he was an employee working in the factory in Scotland owned by an
English defendant. English court had jurisdiction. The employer defendant applied for a stay of
proceeding
o The House granted a stay based on the following reasons:
 Practical Convenient – Claimant is Scotsman, should sue in Scotland court
 Cost saving / cost effective – cheaper to sue in Scotland court
 The tort / incidence took place in Scotland – Scotland court became natural forum
 Eye witnesses – they’re all in Scotland
 Medical expert from Scotland as well
- The Abidin Daver (1984) Lord Diplock
o ‘judicial chauvinism has now being replaced by judicial comity

Example of judicial chauvinism

- The Atlantic Star (1974)
o Lord Denning
 ‘…if the forum is England, it’s a good place to shop in, both for the quality of the good and
the speed of service…’
o Lord Reid
 ‘…when the inhabitants of the island (UK) felt an enacted superiority over those unfortunate
enough to belong to other races…’
- Spiliada v Consulex (1987) Lord Goff – 2 limbs
o There must be some other available forum which is appropriate forum whereby the case can be tried
more suitably for the interest of all the parties and the ends of justice
 The burden is on the defendant to show that not only England is not the Natural forum, but
also that there’s another available forum which is clearly or distinctly more appropriate
 This other forum must simply be known as the ‘natural forum’
 This forum will have the most real and substantial connection to the case
 MacShannon v Rockware Glass (1978)
 Injury took place in Scotland, Scotland now become the ‘Natural forum’
o If there’s another forum which is clearly more appropriate, the court will grant a stay unless justice
requires no stay
  Examples of injustice suffered in the alternative forum
 Delay in the alternative forum
 Delay experience in the alternative forum can work an injustice to the claimant
 The Jalakrishna (1983)
o There was a 5 years delay anticipated in the Natural forum (India)
o The claimant was grievously mutilated in an accident and was in urgent need
of financial help
o UK court did not grant stay. Delay justified refusal of a stay. Matters remain
in UK
 Lack of juridical advantages
 This argument is a non-decisive factor as to whether a stay will be granted
 Connelly v RTZ (1998) Lord Goff (HOL)
o ‘if a clearly more appropriate forum overseas had been identified, generally
speaking the plaintiff will have to take that forum as he finds it, even if its in
certain respects less advantages…’
 Non availability of legal aid in the alternative forum
 Connelly v RTZ
o Connelly, an employee worked in Uranium Mine in Namibia, he then
contracted throat cancer. He argued the employer did not giving proper
protection. The employer was English party, employer apply for stay
o There’s no legal aid available in Namibia
o Lord Goff stated the absence of legal aid in the alternative forum would not
justified the refusal of a stay. Many countries cannot afford a system of legal
aid. A test was created – whether without legal aid would there be no
prospect of a claim being tried at all?
 Lubbe v Cape (2000)
o Employee injured at work while working in South Africa. Employer is an
English. The action was heard in the UK court. Employer apply the stay.
Employee argue there is no legal aid in South Africa.
o The House decided that lack of legal aid in the forum court would work an
injustice on the claimant. This will justified the refusal of a stay
Criticism / Evaluation / Analysis of Spiliada v Consulex test
(1) Hill, Jurisdiction in Civil and Commercial Matter: Is there a third way? 2001
- Hill says the range of factors which the court is entitled to consider under the second limb is very wide
- The authorities do not give any guidance as to how this factor are to be weighed in in relation to any case
- In advisably, the Spiliada test is rather open textured and it’s application is unpredictable
(2) Analysis (Own views)
- The test of Spiliada is opened to criticism as its favors the English forum by giving the claimant two bites at
the cherry. If England is the natural forum the English court will refuse to grant a stay. If England is not the
natural forum the court may still refuse to grant a stay on the basis that justice will not be done in the foreign
forum
- If a claimant can resist a stay on the basis that damages abroad are insignificant, why is a defendant not able to
obtain a stay on the basis that English damages are too high?
- Since Spiliada is asymmetrical (not equal of both side) in this way, the boast that judicial chauvinism has
been replaced by judicial comity (Lord Diplock in The Abidin Daver) should not be accepted too uncritically
Stay of Proceedings based on FNC at Brussel Recast

If the UK court has jurisdiction through Art 4(1) – defendant’s domicile, the question is whether the court can stay it’s
proceeding for another court. Member state would be definitely yes, the issue arise is the non-member state court
Phrase 1 – COA believes can still stay for non-MS
The Po (1991)
- UK court had seized the matter under Art 2 Brussel Convention (Art 4 Brussel Recast)
- The court wanted to stay proceeding in favour of a court in Brazil
- COA held stay can be granted for non-member state despite of seizing jurisdiction under Art 2
Re Harrods (1992)
- UK court had seized the matter under Art 2 Brussel Convention
- The court wanted to stay proceeding in favour of a court in Argentina
- COA held stay can be granted for non0member stated despite seizing jurisdiction under Art 2
- The stay will not impaired the object of the Brussel Recast
Phrase 2 – ECJ stated it cannot stay for non-MS
Owusu v Jackson (2002) ECJ
- Andrew Owusu went to Jamaica for holiday. He dept in the pool and struck his head and causing penalised.
The resort is owned by English operator
- Defendant’s domicile in UK, UK court seized the matter. The defendant apply for stay
- The UK court posted question to ECJ whether they can stay for non-Member State. ECJ held that cannot stay
proceeding for non-Member state
- Art 2 is mandatory and can only be derogated from by the express exceptions that are found in the
Regulation (Art 5(1))
- There’s no such exception based on FNC. Thus the use of FNC within the Brussel in favour of a non-member
state will infringes 2 objectives of the Brussel
o Legal certainty
o Uniformity

Konkola v Coromin (2005) Coolman J

- UK court wanted to stay for Zambia because there was a Zambian jurisdiction agreement
- The UK court stay the proceeding favour of non-Member state to protect the jurisdiction agreement
Phrase 3 – Brussel Recast
Art 33 & Art 34 Brussel Recast (Current law)
- These article allows the member state court to stay for third state, but there’s conditions must be fulfilled
o The third state must be capable of producing a judgment that can be enforced in a Member State
o The Member State court must be satisfied that the stay is necessary for proper administration of
justice
o It must be expedient to hear the claim in the third state