Not in the Public Interest? Lubbe v. Cape PLC

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1 Not in the Public Interest? Lubbe v. Cape PLC C. G. J. MORSE SUMMARY I. INTRODUCTION II. PUBLIC INTEREST FACTORS: PRE LUBBE III. THE LUBBE LITIGATION IV. PUBLIC INTEREST: LUBBE IN THE COURT OF APPEAL V. PUBLIC INTEREST: LUBBE IN THE LORDS VI. THE HUMAN RIGHTS ACT OF VII. THE CIVIL PROCEDURE RULES VIII. BRUSSELS CONVENTION IX. CONCLUSION I. INTRODUCTION The work of Fritz Juenger did much to enlighten us on a topic, which, to use his words, has a bad name, namely forum shopping. 1 However, as Professor Juenger so ably argued: [N]ot all forum shopping merits condemnation. Some clearly does, such as the pennoyering of casual travelers and, worse yet, the kidnapping of hapless children. But can anyone blame the solicitors who retained American attorneys, instead of the barristers with whom they normally deal, to litigate the Paris aircrash cases? Far from doing anything legally or morally reprehensible, the solicitors simply served their clients well. 2 Professor of Law, School of Law, King's College, London. 1. Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REV. 553 (1989). 2. Id. at 570; see also Friedrich K. Juenger, Jurisdiction, Choice of Law and the Elusive Goal of Decisional Harmony, in LAW AND REALITY, ESSAYS ON NATIONAL AND INTERNATIONAL PROCEDURAL LAW IN HONOUR OF CORNELIS CAREL ALBERT VOSKUIL 137 (M. Sumampouw et al. eds., 1992); Friedrich K. Juenger, What s Wrong with Forum Shopping?, 16 SYDNEY L. REV. 5, 10 (1994); Friedrich K. Juenger, Forum non Conveniens Who Needs It?, in WEGE ZUR GLOBALISIERUNG DES RECHTS: FESTSCHRIFT FÜR ROLF A. SCHÜTZE ZUM 65 GEBURTSTAG 317 (Reinhold Geimer ed., 1999). Pennoyering, named after the case Pennoyer v. Neff, 95 U.S. 714 (1878), appears to remain an option. See Burnham v. Superior Court, 495 U.S. 604 (1990); Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back 541

2 542 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:541 The point of Juenger s argument is both that most systems of jurisdiction in civil matters offer parties a fair degree of choice of forum in cases that are connected with more than one country and that it is utopian to posit the notion that there is one forum that is the right one. The choice of available fora is likely to be greater when jurisdiction can be taken on what are sometimes called exorbitant grounds personal transient presence of the defendant within the jurisdiction ( tag jurisdiction), 3 minimum contacts 4 (or in the view of some, minimal contacts ), 5 the nationality of the plaintiff 6 or the defendant, 7 the mere presence of assets within the jurisdiction 8 and so on. But choices are not eliminated even within the context of a legal regime that specifically excludes supposedly exorbitant bases of jurisdiction. The most well known example of such a regime is probably the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968, as amended. 9 In that context, there are plenty of examples of cases where such choices have been held to exist 10 and where, perhaps, a choice has been made for largely tactical reasons. 11 Traditionally, English courts did little to discourage litigants from choosing to litigate in England, when the case was brought there consistent with English jurisdictional rules. In a classic statement of the early common law on staying English actions, Lord Justice Scott had this to say: Again, 24 U.C. DAVIS L. REV. 19, (1990) (citing the U.S. Supreme Court plurality opinion in Burnham v. Superior Court as embracing the expansive view of Pennoyer ). 3. See Colt Indus. Inc. v. Sarlie, 1 W.L.R. 440 (Q.B. 1966) and H.R.H. Maharanee Seethadevi Gaekwar of Baroda v. Wildenstein, 2 Q.B. 283 (Eng. C.A. 1972) for examples of English treatment of jurisdiction taken on potentially exorbitant grounds. See Grace v. MacArthur, 170 F. Supp. 442 (E.D. Ark. 1959) for an example of treatment by federal courts in the United States. 4. Int l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 5. Lawrence Collins, The Hague Evidence Convention and Discovery: A Serious Misunderstanding?, 35 INT L & COMP. L.Q. 765, 785 (1986). 6. See, e.g., CODE CIVIL [C. CIV.] art. 14 (Fr.). 7. Id. art See Juenger, supra note 1, at Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1998 O.J. (C 27) 1, art. 3 (consolidated version) (outlawing the use of certain exorbitant national law rules of jurisdiction as against EEC domiciliaries). It should be noted that as of March 1, 2002, the Convention has been replaced by Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2001 O.J. (L 12) See, e.g., Case 21/76, Handelskwerkerij G. J. Bier v. Mines de Potasse d Alsace, 1976 E.C.R (permitting a choice between place of act and place of harm in tort cases). 11. Thus, a prospective defendant may try to avoid a forum available to the claimant by seeking a negative declaration in a different forum of his choice and then invoke the lis alibi pendens provisions of Article 21 so as to prevent the claimant from suing elsewhere. See Case 144/86, Gubisch Maschinenfabrik KG v. Giulio Palumbo, 1987 E.C.R. 4861; Case C-406/92, The owners of the cargo lately laden on board the ship Tatry v. The owners of the ship Maciej Rataj, 1994 E.C.R. I Occasionally, tactical reasons are motivated by bad faith. See Turner v. Grovit, [2002] 1 W.L.R. 107 (H.L.) (appeal taken from Eng.). In Turner, the House of Lords referred the following question of interpretation to the European Court of Justice: Id. at 116. Is it inconsistent with the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on 27 September 1968 (subsequently acceded to by the United Kingdom) for the courts of the United Kingdom to grant restraining orders against defendants who are threatening to commence or continue legal proceedings in another Convention country when those defendants are acting in bad faith with the intent and purpose of frustrating or obstructing proceedings properly before the English courts?

3 2002] NOT IN THE PUBLIC INTEREST? LUBBE V. CAPE PLC 543 (1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English court if it is otherwise properly brought. The right of access to the King s court must not be lightly refused. (2) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both, the burden of proof is on the defendant. 12 Lord Denning extended an even more generous welcome to foreign litigants: No one who comes to these courts asking for justice should come in vain. The right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this forum-shopping if you please, but if the forum is England, it is a good place to shop in both for the quality of the goods and the speed of service. 13 Additionally, litigation before English courts may be seen as an economic asset of benefit to the national economy: Although there has been considerable judicial condemnation of the practice of forum shopping, it appears in the past that the more the claimant had to gain from this practice the more likely he was to be allowed to continue his action in England. This may seem curious but it has to be borne in mind that there is a public interest in allowing trial in England of what are, in essence, foreign actions. When foreigners litigate in England this forms valuable invisible export, and confirms judicial pride in the English legal system. 14 Sentiments such as these may account for the relatively late development of a modern doctrine of forum non conveniens in English law. 15 Although the history of the development of the modern doctrine need not be described in detail here, it has to be said that it involved a rather painful process. The first stage of its development was to interpret the expression oppressive or vexatious in Lord Justice Scott s formulation set out above 16 in a more liberal fashion than it had been in the past. 17 The second stage involved restating 12. St. Pierre v. S. Am. Stores (Gath & Chalves) Ltd., [1936] 1 K.B. 382, 398 (Eng. C.A. 1935). 13. The Atlantic Star, [1973] 1 Q.B. 364, (Eng. C.A. 1972). Such sentiments were dismissed by the House of Lords per Lord Reid, who described Lord Denning s view as reminiscent of the good old days, the passing of which many may regret, when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. The Atlantic Star, [1974] 1 A.C. 436, 478 (H.L. 1973) (appeal taken from Eng.). 14. SIR PETER NORTH & J.J. FAWCETT, CHESHIRE AND NORTH S PRIVATE INTERNATIONAL LAW (13th ed. 1999) (footnotes omitted). 15. For a very brief account of the history, see id. at See supra note 12 and accompanying text. 17. The Atlantic Star, [1974] 1 A.C. at 478 (H.L.) (appeal taken from Eng.) (explaining that the words oppressive and vexatious were not to be understood in their natural meaning as connoting an element of moral

4 544 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:541 the second condition for forum non conveniens, described by Lord Justice Scott and referred to above, in the form of the view that: [I]n order to justify a stay two conditions must be satisfied, one positive and one negative: (a) 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, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court. 18 This second stage was accompanied, usually, by statements indicating a reluctance to accept that the reformulation was a doctrine of forum non conveniens 19 or by an express disavowal that such a doctrine was thereby being introduced. 20 The third stage, reached in 1984, was an acknowledgement that the reformulation of the principle concerning the discretion of an English court to stay an action was indistinguishable from the Scottish doctrine of forum non conveniens, 21 with a somewhat stark admission that in this area of the law judicial chauvinism has been replaced by judicial comity. 22 The final stage of the development came with the decision of the House of Lords in Spiliada Maritime Corp. v. Cansulex Ltd. where Lord Goff, having regard to the earlier authorities including, particularly, the Scottish authorities, 23 purported to summarize at least the basic principle of the English doctrine as follows: The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably in the interests of all the parties and the ends of justice. 24 This basic principle is generally seen as involving a two-stage inquiry. 25 The first stage involves the defendant establishing that there is another available forum 26 abroad that is clearly or distinctly more appropriate than the English forum. 27 The latter part of this requirement is designed to pay proper regard to the fact that the claimant has established jurisdiction in England as of right. 28 The burden on the defendant is not discharged merely by showing that England is not the natural or appropriate forum, 29 nor does English law blameworthiness, a desire on the claimant s part to harass the defendant by putting him to unnecessary expense, but in a morally neutral sense). 18. MacShannon v. Rockware Glass Ltd., 1978 A.C. 795, 812 (H.L.) (appeal taken from Eng.). 19. Id. at Id. 21. The Abidin Daver, 1 A.C. 398, 411 (H.L. 1984) (appeal taken from Eng.). 22. Id. 23. Spiliada Mar. Corp. v. Cansulex Ltd., [1987] 1 A.C. 460, 474 (H.L. 1986) (appeal taken from Eng.) (citing Sim v. Robinow, 19 R. 665 (Sess. Cas. 1892) (Scot.); La Société du Gaz de Paris v. La Société Anonyme de Navigation Les Armateurs Française, 1926 Sess. Cas. 13 (H.L. 1925) (appeal taken from Scot.)). 24. Spiliada, 1 A.C. at See NORTH & FAWCETT, supra note 14, at Available forum means a forum in which the claimant can commence proceedings irrespective of the precise basis of entitlement to do so. For example, a particular forum can become available because the defendant agreed to submit to the jurisdiction. Lubbe v. Cape PLC, [2000] 1 W.L.R. 1545, 1554 (H.L.) (appeal taken from Eng.). 27. Spiliada, 1 A.C. at Id. 29. Id.

5 2002] NOT IN THE PUBLIC INTEREST? LUBBE V. CAPE PLC 545 adopt the position thought to reflect the practice in the United States where the court hesitates to disturb the plaintiff s choice of forum and will not do so unless the balance of factors is strongly in favour of the defendant. 30 In ascertaining whether a particular forum is clearly or distinctly the more appropriate forum, the court, essentially, will have to determine whether that forum is the one with which the action has the most real and substantial connection. 31 In making this determination, the court will look at connecting factors including not only factors affecting convenience or expense, such as the availability of witnesses, but also other factors such as the law governing the relevant transaction and the places where the parties reside or carry on business. 32 It is only if the defendant satisfies the court that there is another more appropriate forum in this sense that the second stage of the inquiry must be conducted. 33 The second stage of the inquiry requires the claimant to establish that justice requires that a stay should not be granted. 34 In principle, if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. 35 The fact that the claimant would be subject to different procedures or a lower level of damages abroad, for example, is not alone sufficient to demonstrate that justice will not be done abroad. 36 Regard must be given to all the circumstances in a case, but it appears that those circumstances must demonstrate that the claimant will suffer serious injustice in the foreign forum before a stay of the English action will be denied, 37 including being, in effect, unable to proceed in that forum at all. 38 However, a claimant who seeks to resist a stay of English proceedings on such a ground must support its existence by cogent and positive evidence. 39 II. PUBLIC INTEREST FACTORS: PRE LUBBE Since little explicit consideration had been given to the relevance of public interest factors in the application of the forum non conveniens doctrine prior to Lubbe v. Cape PLC, 40 it is helpful to begin by identifying the factors that are regarded as relevant in this context in United States practice. These factors are to be found in the well-known remarks of Justice Jackson in the landmark case of Gulf Oil Corp. v. Gilbert: Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no 30. Id. at Id. at Id. at Spiliada, 1 A.C. at Id. 35. Connelly v. RTZ Corp. PLC, 1998 A.C. 854, 872 (H.L. 1997) (appeal taken from Eng.). 36. See Spiliada, 1 A.C See, e.g., The Abidin Daver, 1 A.C. 398, 411 (H.L. 1984) (appeal taken from Eng.) (explaining that claimants might not obtain justice abroad because of absence of an independent judiciary); The Vishva Ajay, 2 Lloyd s Rep. 558, 560 (Q.B. 1989) (holding the possibility of a delay of some ten years before action comes to trial abroad to be a denial of justice); BMG Trading Ltd. v. A.S. McKay, 1998 I.L. Pr. 691 (Eng. C.A.) (stating that a derisory low limit on damages imposed by foreign court a denial of justice). 38. See Lubbe v. Cape PLC, [2000] 1 W.L.R. 1545, 1554 (H.L.) (appeal taken from Eng.); Connelly, 1998 A.C. at The Abidin Daver, 1 A.C. at Lubbe, [2000] 1 W.L.R

6 546 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:541 relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localised controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. 41 How meaningful are these factors in general? Already over-congested courts will undoubtedly become more congested if they admit what is essentially foreign, as opposed to domestic, litigation within their portals; but it is not easy to quantify the impact of this factor in a realistic or accurate way. This is particularly true in England where the Commercial Court s workload is regularly made up of litigation between foreign parties who, readily and by agreement, resort to that court s services. 42 Secondly, it may not always be easy to determine where the origin of litigation actually is. 43 Thirdly, at least in the English context where a jury trial in civil actions is generally not available, 44 it is somewhat implausible to invoke the burdens of jury service on members of the local community as a factor of public interest. Fourthly, is there really a local interest in having localised controversies decided at home, 45 assuming that it is possible to identify that home with reasonable precision? For the most part, one may surmise, the public is blissfully ignorant of the civil litigation that fills its country s courts on a daily basis, and it is very difficult to believe that there is demand from members of the public for holding the trial in their view and reach. 46 If a court takes jurisdiction over a case that is only marginally connected to the territory in which it sits, this assertion of jurisdiction might lead to a need to resolve conflict-of-laws problems and to plead and prove potentially applicable foreign law and, thus, cause problems for both the parties and the court. But choice-of-law rules exist because, from time to time, it is appropriate for the forum to resolve a case by reference to a law other than its own; in such a circumstance, the forum should not too readily shrink from its duty to apply foreign law, where required, by hiding behind jurisdictional doctrine. Justice Jackson was somewhat skeptical, to put it mildly, that forum non conveniens principles protected the private interests of litigants: The judiciary has never favored this sort of shopping for a forum. It has sought to protect its own good name as well as to protect defendants by injunctions against the practice of seeking out soft spots in the judicial system in which to bring particular kinds of litigation. But the judges, with lawyerly indirection, have not avowed the interest of the judiciary in orderly resort to the courts as a basis for their decision, and have cast their protective doctrines in terms of sheltering defendants against vexatious and harassing suits. This judicial 41. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, (1947). 42. The Commercial Court is a specialist branch of the Queen s Bench Division of the High Court. Court Guides and Notices: Queen s Bench Division, The Queen s Bench Guide Introduction, at (last visited Mar. 15, 2002). 43. See Berezovsky v. Michaels, [2000] 1 W.L.R (H.L.) (appeal taken from Eng.) (involving an action for defamation held to have been properly commenced in England when brought by Russian claimant against American publisher in relation to a publication principally distributed in the United States and only a small circulation in England) for a good example of a case in which the origin of the litigation was difficult to determine. 44. Jury trial is available in defamation actions. Supreme Court Act, 1981, 69(1) (Eng.). 45. Gulf Oil, 330 U.S. at Id.

7 2002] NOT IN THE PUBLIC INTEREST? LUBBE V. CAPE PLC 547 treatment of the subject of venue leads Congress and the parties to think of the choice of a forum as a private matter between litigants, and in cases like the present obscures the public interest in venue practices behind a rather fantastic fiction that a widow is harassing the Illinois Central Railroad. 47 While one may readily agree that in general terms there is public interest in a case being tried in the most appropriate forum for its resolution, one may doubt whether the public interest factors identified in U.S. forum non conveniens practice are apt to achieve these ends. This doubt arises because defendants do not often seek to rely on forum non conveniens to achieve trial in a more convenient or appropriate forum. More often they wish to avoid the original forum because of procedural or substantive disadvantages that they would suffer if suit were continued there. 48 These disadvantages to the defendant are, of course, advantages to the plaintiff, and securing those advantages will be what motivated the plaintiff to bring suit in the original forum in the first place. 49 Spiliada 50 and the cases that preceded it gave little, if any, explicit consideration to factors reflecting the public interest as such, although certain factors were regarded as relevant, such as the law applicable to the transaction, 51 which reflects public and private interests. In MacShannon v. Rockware Glass Ltd., 52 Lord Diplock referred to an element of public policy, namely: that the administration of justice within the United Kingdom should be conducted in such a way as to avoid any unnecessary diversion to the purposes of litigation, of time and efforts of witnesses and others which would otherwise be spent on activities that are more productive of national wealth or well-being. Many a mickle makes a muckle; and if it were to become the common practice to bring Scottish industrial injury cases in England, the total waste of time and effort would be substantial. 53 For Lords Salmon and Keith such matters of general policy were not, as such, part of the forum non conveniens principle, 54 though the House of Lords, in eventually imposing a stay, did in reality achieve the policy identified by Lord Diplock. Further, if one recalls the sentiments expressed by Lord Goff in Spiliada which found that when one is endeavouring to determine whether there is a forum that is clearly and distinctly more appropriate, one is looking for the forum with which the action has the most real and substantial connection; 55 one can, again, see one type of a public interest factor at work. To adopt Justice Jackson s terminology, one is looking for the origin, 56 the home 57 of the case. In this very general sense, English and American practices are highly comparable. 47. Miles v. Ill. Cent. R.R. Co., 315 U.S. 698, 706 (1942) (Jackson, J., concurring). 48. Cf. Bewers v. Am. Home Prods. Corp., 459 N.Y.S.2d 666, 668 (N.Y. Sup. Ct. 1982) ( Plaintiffs choice of forum is being vigorously contested, probably not so much because defendants are unaccustomed to international travel, but because, as both sides know, the outcome of this procedural motion may well be dispositive of plaintiffs claims. ). 49. A survey has suggested that where a claim is stayed on forum non conveniens grounds, litigation in a different forum rarely ensues. David W. Robertson, Forum Non Conveniens in America and England: A Rather Fantastic Fiction, 103 LAW Q. REV. 398 (1987). 50. Spiliada Mar. Corp. v. Consulex Ltd., [1987] 1 A.C. 460, 460 (H.L. 1986) (appeal taken from Eng.). 51. Id. at MacShannon v. Rockware Glass Ltd., 1978 A.C. 795 (H.L.) (appeal taken from Eng.). 53. Id. at (emphasis in original). 54. Id. at 822, Spiliada, 1 A.C. at Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

8 548 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:541 III. THE LUBBE LITIGATION Lubbe v. Cape PLC 58 involved claims for personal injuries or death, brought originally by five claimants, caused by exposure to asbestos while working in South Africa for Cape PLC s South African subsidiaries. 59 It was alleged that the defendant as a parent company had failed to discharge its duty to ensure the observance of proper standards of health and safety by its overseas subsidiaries. 60 In all the material proceedings, the defendants relied on a plea of forum non conveniens, though it was clear that Cape PLC, as an English company, was properly subject to suit in England. 61 At first instance, the proceedings were initially stayed on the ground that everything pointed to South Africa as the appropriate forum for the trial of the action 62 and there was nothing which indicated that the interests of justice required trial in England. On appeal, the Court of Appeal removed the stay on the ground that the defendant had not shown that South Africa was clearly and distinctly the more appropriate forum. 63 Thereafter, some 3,000 additional claimants issued writs against Cape PLC and hundreds more instructed solicitors to bring suit. 64 One claimant (suing as personal representative of her deceased husband) was a British citizen residing in England. 65 All the other claimants (most of modest means) were citizens and residents of South Africa. 66 The defendant then applied to stay these new proceedings (the claims had by then been consolidated into a group action) and succeeded in the application at first instance. 67 Mr. Justice Buckley concluded that South Africa was clearly and distinctly the more appropriate forum for trial of the group action and that there were no sufficient reasons for refusing a stay. 68 In particular, he held, in all the circumstances, that it could not be found that legal aid would not be granted to the claimants in South Africa. 69 The claimants then appealed this decision to the Court of Appeal, which dismissed the appeal and continued the stay. 70 The claimants then appealed to the House of Lords who unanimously allowed the appeal and removed the stay. 71 The House of Lords had no doubt at all that the defendants had discharged the burden of showing that South Africa was a clearly and distinctly more appropriate forum for the trial of these claims. 72 But, at the second stage of the application 57. Id. at Lubbe v. Cape PLC, [2000] 1 W.L.R (H.L.) (appeal taken from Eng.). For comment on Lubbe, see Adrian Briggs, Forum non Conveniens and the Impecunious Litigant, 71 BRIT. Y.B. INT L L. 435 (2000); Peter Muchlinski, Corporations in International Litigation: Problems of Jurisdiction and the United Kingdom Asbestos Cases, 50 INT L & COMP. L.Q. 1 (2001); Edwin Peel, Forum Non Conveniens Revisited, 117 LAW Q. REV. 187 (2001); Russell J. Weintraub, When and How to Demagnetize Magnet Forums, 12 KING S COLLEGE L. J. 195 (2001). For the second decision of the Court of Appeal, see [2000] 1 Lloyd s Rep. 139 (Eng. C.A. 1999). For the first decision of the Court of Appeal, see 1999 I.L.Pr. 113 (Eng. C.A.). 59. Cape PLC and its subsidiaries have received some attention from English and American courts in the past. For an example, see Adams v. Cape Industries PLC, 1990 Ch. 433 [1990] 2 W.L.R. 657 (Eng. C.A. 1989) (refusing to enforce in England a Texas judgment arising out of asbestos litigation). 60. Lubbe, [2000] 1 Lloyd s Rep. at See id. at Lubbe, [2000] 1 W.L.R. at Lubbe, 1999 I.L.Pr Lubbe, [2001] 1 Lloyd s Rep. at Lubbe, [2000] 1 W.L.R. at Id. at Lubbe, [2000] 1 Lloyd s Rep Id. at Id. at Id. at Lubbe, [2000] 1 W.L.R. at Id. at 1554.

9 2002] NOT IN THE PUBLIC INTEREST? LUBBE V. CAPE PLC 549 of the Spiliada principles, 73 there were convincing reasons to indicate that substantial justice would not be done if these claims were litigated in South Africa. First, there was no convincing evidence to suggest that legal aid might be available in South Africa 74 as the Court of Appeal appears to have thought. 75 Secondly, there was evidence to suggest that legal representation, on a conditional fee basis, would not be available for a variety of reasons in the case. 76 As Lord Bingham put it: If these proceedings were stayed in favour of the more appropriate forum in South Africa the probability is that the plaintiffs would have no means of obtaining the professional representation and expert evidence which would be essential if these claims were to be justly decided. This would amount to a denial of justice. In the special and unusual circumstances of these proceedings, lack of the means, in South Africa, to prosecute these claims to a conclusion, provides a compelling ground, at the second stage of the Spiliada test, for refusing to stay the proceedings here. 77 Lord Bingham felt reinforced in these views by the absence, at the time, of developed procedures for handling group actions in South Africa. 78 There is a bewildering variety of views in this litigation. Most notably, what seemed perfectly appropriate to the second Court of Appeal amounted to a denial of justice for the House of Lords. Be this as it may, this article is concerned with the role of public interest factors in English forum non conveniens practice, and it is with this issue that the remainder of this article is concerned. IV. PUBLIC INTEREST: LUBBE IN THE COURT OF APPEAL In Lubbe v. Cape PLC, 79 the House of Lords, consistent with its previous practice in Spiliada 80 and Connelly v. RTZ Corp. PLC, 81 placed the private interests of the parties and in the latter case particularly the interests of the claimant at the forefront of its analysis. This claimant would have found it impossible to proceed in the appropriate forum, Namibia, because of the absence of funding by either legal aid or the conditional fee in respect to any proceedings that he might bring in that jurisdiction. This funding issue, which, as seen above, resurfaced in Lubbe, raised what was seen by some as a public interest question. By a letter dated September 1998, the Lord Chancellor s Department 82 sought consultation on the question of whether the government should introduce legislation to reverse the result of Connelly because of the opportunity it provided for impoverished claimants from overseas to proceed against English companies in England with the benefit of legal aid from the Legal Aid Fund, which was publicly funded. The outcome of the consultation is not known, but, in any event, the government replaced legal aid on April 1, 73. Spiliada Mar. Corp. v. Cansulex Ltd., 1 A.C. 460, 477 (H.L. 1987) (appeal taken from Eng.). 74. Lubbe, [2000] 1 W.L.R. at Lubbe v. Cape PLC, [2000] 1 Lloyd s Rep. 139, 151 (Eng. C.A. 1999). 76. Lubbe, {2000] 1 W.L.R. at Id. at Id. at 1560; cf. Lubbe, [2000] 1 Lloyd s Rep. at Lubbe, [2000] 1 W.L.R Spiliada Mar. Corp. v. Cansulex Ltd., 1 A.C. 460 (H.L. 1987) (appeal taken from Eng.). 81. Connelly v. RTZ Corp. PLC, 1998 A.C. 854, 872 (H.L. 1997) (appeal taken from Eng.). 82. Put very generally, this is the government department responsible for many aspects of the management of the legal system. See Courts Act, 1971, c. 23 (Eng.).

10 550 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37: with a new scheme that is, to put it mildly, ungenerous and which will not cover most personal injury claims. 84 By way of a quid pro quo, perhaps, conditional fees were permitted 85 so that there will still be a financial incentive to foreign claimants to come to England, where they can persuade a lawyer to enter into a conditional fee arrangement. 86 Judicially, reference to the public interest emerged in the second round of the Lubbe litigation. For Mr. Justice Buckley, at first instance, it was possible to impose a stay on English proceedings by reference to principles that did not involve reference to U.S. public interest principles. 87 Mr. Justice Buckley, nevertheless, still referred to some of the U.S. cases 88 and was comforted 89 by the fact that the principles applied by the Supreme Court... reinforced 90 the conclusion he had reached and did not regard public interest factors as excluded from consideration by the decision in Spiliada. 91 He commented that the approach of U.S. courts is similar to that of the English courts in many respects. 92 In focusing on the public interest factor, Mr. Justice Buckley, perhaps unsurprisingly, relied on Judge Keenan s observations in In re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December, 1984: 93 The Court concludes that the public interest of India in this litigation far outweighs the public interest of the United States. This litigation offers a developing nation the opportunity to vindicate the suffering of its own people within the framework of a legitimate legal system. This interest is of paramount importance And, further: The Bhopal plant was regulated by Indian agencies. The Union of India has a very strong interest in the aftermath of the accident which affected its citizens on its own soil.... The Indian interests far outweigh the interests of citizens of the United States in the litigation Access to Justice Act 1999, Order 2000, SI 2000/774 (implementing the Access to Justice Act 1999) (Commencement No. 3, Transitional Provisions and Savings). 84. See Access to Justice Act 1999, c. 22, 4 10 (Eng.). As a result of the Access to Justice Act 1999, c. 22, 6(6), the Legal Services Commission established by the Act, id. 1(1), may not fund as a part of the Community Legal Service any of the services specified in Schedule 2 of the Act, and these include services relating to allegations of negligently caused injury or death apart from allegations relating to clinical negligence. Id. c. 22, sched Courts and Legal Services Act, 1990, c. 41, 58 (Eng.). Recent changes have been made to the Courts and Legal Services Act with respect to conditional fee agreements. See Conditional Fee Agreements Order, (2000) SI 2000/823; Conditional Fee Agreements Regulations, (2000) SI 2000/ See Briggs, supra note 58, at Lubbe v. Cape PLC, [2000] 1 Lloyd s Rep. 139, 154 (Eng. C.A. 1999). 88. Id. at (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. 1984, 634 F. Supp. 842 (S.D.N.Y. 1986), aff d, 809 F.2d 195 (2nd Cir. 1987), cert. denied, 484 U.S. 871 (1987); Dowling v. Richardson Merrell Inc., 545 F. Supp (S.D. Ohio 1982), aff d, 727 F.2d 608 (6th Cir. 1984)). 89. Lubbe, [2000] 1 Lloyd s Rep. at Id. 91. Id. 92. Id. 93. Id. at (citing In re Union Carbide, 634 F. Supp. at ). 94. Id. 95. Id.

11 2002] NOT IN THE PUBLIC INTEREST? LUBBE V. CAPE PLC 551 In Lubbe, 96 according to Mr. Justice Buckley, the strong connections with South Africa pointed to the public interest of that country in the resolution of the litigation, and, had it been necessary for him to rely on the public interest factor, he would have taken it into account and considered it to have considerable weight in the case. 97 Public interest à la Bhopal was picked up by Lord Justice Pill in the Court of Appeal. He saw authority for taking account of the public interest factor 98 in one of the bases of the English forum non conveniens doctrine the exercise of self-restraint by independent jurisdictions 99 that Lord Goff had referred to in a discussion of the doctrine in Airbus Industries G.I.E. v. Patel, 100 a case that was in fact concerned with an antisuit injunction rather than with forum non conveniens. 101 Lord Justice Pill sought further support in a particularly purple passage in Judge Keenan s opinion in Bhopal: In the court s view, to retain this litigation in this forum, as plaintiffs request, would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation. This Court declines to play such a role. The Union of India is a world power in 1986, and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of the opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged. 102 While disagreeing with the use of the expression imperialism, Lord Justice Pill thought that this general approach 103 appeared apt in the context of personal injury litigation such as the present. These personal injury actions concern operations conducted in South Africa and are concerned with their effect on persons employed and resident there. 104 In other words, perhaps, South Africa was the origin 105 or home 106 of this litigation as it was the country with which the litigation has the most real and substantial connection. 107 Whether Lord Justice Pill s derivation actually reflects what Judge Keenan (in more grandiose terms) actually meant must be open to question. For Judge Keenan, India had an obligation to throw off the colonial yolk, to stand tall, and to hear the Bhopal litigation because of its strong interest in so doing; 108 this conclusion is slightly peculiar given that the Union of India was, in fact, seeking to have the trial before an American court. 109 From another 96. Id. 97. Id. at Id. at Id Airbus Indus. G.I.E. v. Patel, [1999] 1 A.C. 119 (H.L. 1998) (appeal taken from Eng.) The expression exercise of self-restraint by independent jurisdictions is more appropriate to an antisuit injunction inquiry than a forum non conveniens inquiry, since the issuing of such an injunction involves attempting to curtail the jurisdiction of a foreign court. See id Lubbe, [2000] 1 Lloyd s Rep. at 161 (citing In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. 1984, 634 F. Supp. 842 (S.D.N.Y. 1986), aff d, 809 F.2d 195 (2nd Cir. 1987), cert. denied, 484 U.S. 871 (1987)) Id Id. at Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); see also supra text accompanying note Gulf Oil, 330 U.S. at Spiliada Mar. Corp. v. Cansulex Ltd., 1 A.C. 460, 478 (H.L. 1987) (appeal taken from Eng.); see also supra text accompanying note In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. 1984, 634 F. Supp. 842, 867 (S.D.N.Y. 1986), aff d, 809 F.2d 195 (2nd Cir. 1987), cert. denied, 484 U.S. 871 (1987) Id. By the time the appeal was heard the Union of India had changed its position and supported dismissal of the American actions. In re Union Carbide, 809 F.2d at

12 552 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:541 perspective, Judge Keenan might be thought to be patronizing, or as engaging in what one might call reverse imperialism. In any event, it can be said that the use of public interest factors by both Mr. Justice Buckley and Lord Justice Pill reflects a desire to have the case dealt with in the jurisdiction with which it has the closest and most real connection, which is of course the motivating consideration behind the first stage of the Spiliada inquiry. 110 What the government of South Africa thought of all this was not known to the Court of Appeal. When, however, the South African government intervened in the appeal to the House of Lords, it made a submission which denied that there was any public interest in the litigation being conducted before the South African courts. In the view of the government, the public interest pointed to litigation before the English courts, not least because the defendants had no connection with South Africa and no assets there. 111 V. PUBLIC INTEREST: LUBBE IN THE LORDS Public interest factors, as such, received short shrift from the House of Lords. For Lord Bingham: public interest considerations not related to the private interests of the parties and the ends of justice have no bearing on the decision which the court has to make. Where a catastrophe has occurred in a particular place, the fact that numerous victims live in that place, that the relevant evidence is to be found there and that site inspections are most conveniently and inexpensively carried out there will provide factors connecting any ensuing litigation with the Court exercising jurisdiction in that place. These are matters of which the Spiliada test takes full account. 112 In applying the principles, questions of judicial amour propre and political interest or responsibility have no part to play. 113 For Lord Hope, the true position was equally clear and was confirmed by Scottish practice, as stated by Lord Sumner in La Société du Gaz de Paris v. La Société Anonyme de Navigation Les Armateurs Française : 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 Accordingly, if it cannot be established that the case may be tried more suitably in the other forum in the interests of all the parties and the ends of justice, the court must exercise jurisdiction, 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. 115 Conversely, if the interests of all the 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 110. Spiliada, 1 A.C. at 477; see also supra text accompanying note Muchlinski, supra note 58, at Lubbe v. Cape PLC, [2000] 1 W.L.R. 1545, 1561 (H.L.) (appeal taken from Eng.) Id La Société du Gaz de Paris v. La Société Anonyme de Navigation Les Armateurs Française, 1926 Sess. Cas. 13, 21 (H.L. 1925) (appeal taken from Scot.) Lubbe, [2000] 1 W.L.R. at 1566.

13 2002] NOT IN THE PUBLIC INTEREST? LUBBE V. CAPE PLC 553 public interest or public policy that the action should be tried here. 116 Lord Hope explicitly rejected the approach taken by U.S. courts. 117 What were the reasons which led to such a firm conclusion? Lord Hope referred, with approval, to the reasons given for rejecting public interest factors by Justice Deane in a landmark Australian case, Oceanic Sun Line Special Shipping Co. Inc. v. Fay. 118 In considering the various options which Australian law might adopt in relation to the development of its doctrine of forum non conveniens, Justice Deane referred to the U.S. doctrine, which involves public interest factors, as having some cogency. 119 The costs of administration of justice are high; judicial resources are limited; court lists are congested; judges are overworked; justice is far too often delayed; and international comity suggests that courts in Australia should refrain from hearing actions in circumstances corresponding to those in which courts of other countries would refrain from entertaining them on the ground that they should more appropriately be brought in Australia. 120 However, Justice Deane was ultimately unpersuaded by the relevance of such factors. 121 Reference to public interest factors, according to Justice Deane, would widen the discretion of the court and, in consequence, lead to increased uncertainty for litigants, more litigation about where to litigate, and would be difficult to assess in relation to particular cases in the absence of material before the court to indicate the effects of a decision one way or the other. 122 If Australian law were to be changed in this regard, it seems to me to be preferable that it be done by legislation enacted after full inquiry and informed assessment of international as well as domestic considerations of a kind which this court is not equipped to make of its own initiative. 123 Further, judicial comity was not a practical, promising principle given the tendency, particularly in the United States, to give greater deference to the plaintiff s choice of forum when the plaintiff is a citizen or resident of that forum. 124 More recently, the New South Wales Court of Appeal has voiced concerns over the exclusion of considerations of public interest factors in Australian forum non conveniens doctrine in James Hardie & Coy Pty. Ltd. v. Grigor, a personal injuries claim arising out of mesothelioma contracted by the claimant through contact with asbestos in New Zealand. 125 It was said that were it not for the authority of Oceanic Sun Line, 126 the court would have considered the limited resources available for the administration of justice in New South Wales, and it was questioned whether a foreign resident suing on a foreign tort should be entitled to take advantage of a special accident compensation scheme designed for the benefit of Australian residents, given the demands on judicial resources. 127 President Mason emphasized the need to consider legislative reform of the relevant principles to be applied in light of foreign residents wanting to litigate foreign torts in a crowded judicial regime 116. Id. at Id. (rejecting the approaches adopted in In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. 1984, 634 F. Supp. 842 (S.D.N.Y. 1986), aff d, 809 F.2d 195 (2nd Cir. 1987), cert. denied, 484 U.S. 871 (1987) and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)) Oceanic Sun Line Special Shipping Co. v. Fay (1988) 165 C.L.R. 197 (Austl.) Id. at Id. at Id. at Id. at Id. at 255; cf. Justice Black s dissent in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 517 (1947) (deferring the adoption of the doctrine of forum non conveniens to Congress) See Oceanic Sun Line (1988) 165 C.L.R. at 254 (referring to the dissent of Justice Stevens in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 262 (1981) and Friedrich K. Juenger, Judicial Jurisdiction in the United States and in the European Communities: A Comparison, 82 MICH. L. REV (1984)) James Hardie & Coy Pty. Ltd. v. Grigor (1998) 45 N.S.W.L.R. 20 (Austl.) (1988) 165 C.L.R. at James Hardie, (1998) 45 N.S.W.L.R. at 40.

14 554 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 37:541 developed for the benefit of Australian residents and funded by Australian taxpayers or local employers. 128 He added, however, that any modification of the existing law should not overlook the scenario of an Australian manufacturer of a dangerous product seeking to dump it in a foreign market with less stringent controls, 129 a scenario which raised complex legal, moral, and economic issues. 130 VI. THE HUMAN RIGHTS ACT OF 1998 The current position in England, stated at the highest judicial level, is that public interest factors have no relevance in the forum non conveniens inquiry except to the extent that they are related to the private interests of the parties. It is possible, but not entirely certain, that the effect of the implementation in the United Kingdom of the European Convention on Human Rights in the Human Rights Act of points to the same conclusion. 132 In Lubbe, the second Court of Appeal decision took the view that it would be correct to decline jurisdiction in favor of South Africa even if legal representation had not been available there. 133 Lord Bingham rejected that view in the House of Lords, on the basis of the principles established in Spiliada. 134 The plaintiffs had argued, however, that staying the English proceedings would violate the plaintiffs rights of access to a court, guaranteed by Article 6 of the European Convention. 135 Lord Bingham thought that Article 6 did not support a conclusion other than the one already supported by Spiliada, 136 so in effect, he has held that the outcome in Lubbe 137 is one that is compatible with the Convention and that a stay would not be compatible, since it would lead to a denial of justice to the plaintiffs. 138 Even if, therefore, it could have been established that public interest factors of the U.S. variety pointed to trial in South Africa, it would not have been proper to take account of them since to do so would fly in the face of a binding statutory provision. The question remains as to the precise scope of Article 6 in this context. At first instance it has been said, in the context of an application for an antisuit injunction rather than in the context of forum non conveniens, that Article 6 does not deal at all with where the right (guaranteed by Article 6) to a fair and public hearing before an independent and impartial tribunal established by law is to be exercised by a litigant, but that the crucial point at issue is that civil rights must be determined somewhere in accordance with Article At the very least, therefore, a stay will not be compatible with Article 6 if the outcome is that the claimant will not be able, for economic or other reasons amounting to a denial of 128. Id. at Id Id. The High Court of Australia refused leave to appeal in this case. During oral argument, counsel for the defendants stated that the fact that a court or tribunal is open to all comers does not necessarily mean that all comers can come. F.M. Douglas, Oral Argument (Aug. 7, 1998) in James Hardie & Coy Pty. Ltd. v. Grigor, at Justice Gaudron responded, Yes it does. Id. Chief Justice Gleeson said, It is a big thing for a court to put up a sign saying No business today. Id Human Rights Act, 1998, c. 42 (Eng.). The text of the Convention is scheduled to the Act See Muchlinski, supra note Lubbe v. Cape PLC, [2000] 1 Lloyd s Rep. 139 (Eng. C.A. 1999) Lubbe v. Cape PLC, [2000] 1 W.L.R. 1545, 1561 (H.L.) (appeal taken from Eng.) (relying on the decision in Spiliada Mar. Corp. v. Cansulex Ltd., 1 A.C. 460 (H.L. 1987) (appeal taken from Eng.)) Id Spiliada, 1 A.C Lubbe, [2000] 1 W.L.R Id. at OT Africa Line Ltd. v. Hijazy [2001] 1 Lloyd s Rep. 76 (Q.B. 2000).