TURKISTUOTTAJAT OY FINNISH FUR SALES CO LTD v. DRAMA K HONG KONG LTD

Practice and Procedure: Forum non conveniens. Burden of proof.

Forum non conveniens: Breach of contract in Denmark: Documents in English: Parties Finnish and Chinese: Writ issued in Hong Kong: Whether action should be stayed and Plaintiff obliged to sue in Denmark. Forum non conveniens: No O.14 and no Interrogatories in Denmark: Whether sufficient to keep action in Hong Kong.

Forum non conveniens: Denmark: No reciprocal enforcement of Judgments with Hong Kong: Whether Plaintiff entitled to continue action in Hong Kong as unable to execute in Denmark if action stayed here and another brought there.

Forum non conveniens: Danish proceedings against Hong Kong company if successful could not be executed on save by another Hong Kong action: Hong Kong action not stayed so that if successful, execution facilitated: Juridical advantage that Plaintiff would lose if Hong Kong proceedings stayed.

Appearances:  Huggins for the Plaintiff.

                       (Mrs.) Kaplan for the Defendant.

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J U D G M E N T

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1. By its Summons of 3rd July the Defendant Company seeks to have the Statement of Claim struck out, and the action dismissed under Order 18 rule 19 and under the inherent jurisdiction.

2. It was made clear to me, however, when this matter was opened by Mrs. Kaplan, that what she in fact was seeking was a stay of these proceedings, so that they might be brought in Denmark which to her, and, in her submission, is a more convenient forum.

3. The principles that I have to apply in dealing with such an application appear clearly at the top of page 949a in paragraph 33520 in volume 2 of the Supreme Court Practice, and incorrectly on page 946 in paragraph 3346, where there is a bizarre misprint.

4. The present position was stated by Lord Diplock in MacShannon v. Rockware [1978] A. C. 795 (as it is usually called). At page 812, he said, between letters A and B: -

"(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 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".

The other Law Lords concurred in that matter. Those words were reformulated in the speech of Lord Brandon of Oakbrook in The Abidin Daver [1984] A.C. 398 at p.419 between letters E and F.A gloss on an explanation of the matters to be taken into account is to be found in the judgment of Lord Denning in Smith Kline Ltd. & Others v. Bloch [1983] 1 W.L.R. 730, and the passages to which I am referring appear at page 738 between letters B and D: -

"The Plaintiff has no longer an inborn right to choose his own forum. He no longer wins the toss on every throw. The decision rests with the courts. No matter which jurisdiction is invoked, the court must hold the balance between the plaintiff and the defendant. It must take into account the relative advantages and disadvantages to each of them; not only the juridical advantages and disadvantages, but also the personal conveniences and inconveniences; not only the private interests of the parties but also the public interests involved. The court decides according to which way the balance comes down."

I have been referred to other cases, and to the 10th Edition of Dicey and Morris, Conflicts of Laws. The principles are quite clear, and I do not need to recite them in any further detail. There is a burden on the Defendant to satisfy me on evidence that there is another forum to whose jurisdiction it is amenable, and that that is a forum in which justice can be done between this Plaintiff and this Defendant at substantially less convenience or substantially less expense. The Defendant has further to satisfy me that the stay must not deprive the Plaintiff of the legitimate personal or juridical advantage which would be available to it in the invocation of the jurisdiction of the Courts of Hong Kong. It is not doubted that the Plaintiff had a right to sue here. The Defendant is here. The Plaintiff is a Finnish Company, and it has come to the home of the alleged wrong-doer to seek a remedy from the alleged wrong-doer's Courts. I am quite satisfied that the Plaintiff was justified in bringing its action here.

5. Now I have to consider if, on the evidence before me the Defendant has been able to satisfy me of the matters to which I have just referred. There is a singular paucity of evidence before me, but I have, in addition to that evidence, certain statements by Counsel made from behind the Bar specifically on instructions, in relation to the stance which the Defendant will take if this matter proceeds further either in Hong Kong or in Denmark. And I have taken then into account.

6. The action is a simple one. The Finnish Plaintiff sold some furs, the origin of which I know not, but auction was in Denmark, and it is averred that the Danish agent of the Defendant successfully bid at the auction for those furs. In the alternative, it is alleged that the bidder purported to act as the Defendant's agent, and, in due course, the Defendant ratified the act of that alleged agent. And, finally, it is averred that, in due course, after having received a number of invoices, the Defendant did not merely refrain from complaining and saying the purchase was not for his account, but, went further and informed acknowledged and represented to the Plaintiff that the first purchases , by the alleged agent were for the Defendant's account, and that it assumed responsibility for them. Because the auction was in Denmark and because the contract sued upon was made in Denmark, Danish law is pleaded in paragraphs 3 and 5 of the Statement of Claim, and what that says is this: That because of the express instructions from the Defendant to the alleged agent, and because the President of the Defendant was at the said auction, and because of Clause 4 of the Conditions of Sale, it said that, if a person bids on behalf of another, then those two are jointly. and severally liable: That is, as a matter of law, the Defendant would be liable if those facts were proved. Further, it is averred, as a matter of Danish law, that the non-complaint, if I may so call it, and the information and acknowledgment of representation, would, in Danish law, make the Defendant liable.

7. There is before me no evidence that the Defendant would be amenable to the jurisdiction of the Danish Courts: That however has been answered in two ways. The first, in the absence of any evidence that the Defendant is not amenable to the Danish Courts, is that I must assume that the law there is the same as the law here, and that the Defendant would be amenable to their jurisdiction ,and, in any event, the Defendant has given an undertaking through Counsel, to submit to the jurisdiction of the Danish Courts. Second Mrs. Kaplan urges upon me that, in the absence of evidence to the contrary, I must presume that the Danish Courts are the same as the English Courts, and would permit an overseas foreign party to come and to submit to the jurisdiction there. I raised the question, notwithstanding an underasking, what is the presumption; I mean, can the Defendant in fact submit to the jurisdiction. She says that, in the absence of evidence to the contrary I must assume that it can. I am prepared to accept, therefore, on basis of that undertaking and an absence of evidence to the contrary, that the Defendant is amenable to, alternatively that the Defendant could and will submit to, the jurisdiction in Danish Courts.

8. I now pass to the matter of substantially less inconvenience or expense. It is to be noticed that the test is not just less; it is "substantially less". And that leaves me in a very uneviable position, although Mrs. Kaplan has told me, on specific instructions, that the agency is denied and that, even if the Danish bidder were the agent of the Defendant, it is to be denied that the Defendant was a disclosed principal: That is a little difficult to imagine if the representative of the Defendant were sitting alongside the bidder at the auction, but that is not for me to decide to-day. I have looked at the issues there-fore, and, under paragraph 3 of the Statement of Claim, there would be the necessity for one foreign witness. Under paragraph 4, if the Court gets that far, at the most there would be a necessity for three foreign witnesses. If the Court had to go on to paragraph 5, there would be a necessity for two, and, possibly, one if the Danish law could be agreed. What Mrs. Kaplan says to me is this: "It is natural; it is obvious; and it is common sense, that the forum is in Denmark. The law is in Denmark: The facts were in Denmark: The witnesses are in Denmark, except for two Finnish witnesses.". But I just do not know how many witnesses would have to go there, or how many witnesses would have to come here.  That is mere guesswork: But, assuming that a few witnesses did have to come to Hong Kong, then I have to do the theoretical calculation of substantial less inconvenience and substantial less expense. I am told by Counsel, and I accept, that all the documentation is in English, even the terms and conditions of the auction were in English: Practially everything is in English; The only way that these parties could communicate, was not in the oriental language of Finland; not in the European language of Denmark; but in English, and English was the lingua franca in all the matters leading up to this dispute. That means that, if this matter were to be litigated in Denmark, everything would have to be translated into Danish - every single document, and it puts me in the very invidious position of having to try to decide which would be a substantially greater expense or a substantially greater inconvenience. As the burden is on the Defendant to prove that to me, I find that it has failed to satisfy me, on the balance of probabilities, that the inconvenience and expense involved is so substantially less in Denmark that it would justify me driving the Plaintiff away from a forum to which it has quite properly come, and making it start all over again. Because of the late ness of the hour and the shortness of time, this judgment much perforce be very brief.

9. The second matter on which the Defendant has to satisfy me is this. That, if I granted a stay, that would not deprive the Plaintiff of a legitimate personal juridical advantage which would be available to him if he invoked the jurisdiction of the Hong Kong Courts. It behoves me then to pass to that, in case I were wrong on the first matter, because they are conjunctive and not disjunctive in the speeches of Lord Diplock and Lord Brandon: And "juridical advantage" has become rather difficult, and I would not wish to fall into the same trap as the present Master of the Rolls fell into in The Abidin Dave [1983] 1 W.L.R. 884, at p.889 D - G, which attracted such criticism from Lord Brandon as Oakbrook, at p.215 A to B, p.216 B of The House of Lords report at p.425 C - F. I will merely recite those juridical advantages as, at the moment, on the evidence before me, are apparent to me, of which the Plaintiff would be deprived if it were sent away. Taken one by one, they are not such matters in the absence of other findings as might influence my decision in favour of the Plaintiff: But I have to take them cumulatively. One is this. Apparently there is no provision for "Order 14" proceedings in Denmark, or, if there is, there is no evidence of it before me. Another is that, apparently, there would be difficulties in administering interrogatories in Denmark. And, lastly, the Defendant being resident in Hong Kong, its assets all. being in Hong Kong, and there being no evidence of it having any assets in Denmark or place of business or anything to attach in Denmark, the Plaintiff would be deprived of these advantages if it succeeded in the action of Denmark: It would not be able forthwith to execute or to issue a writ of fi. fa.: it would have to commence proceedings all over again here in Hong Kong, and sue on the Danish judgment. I quite agree with Mrs. Kaplan when she says to me: "Ah, well, if we submit to the jurisdiction in Denmark and we lose there, we could hardly defend proceedings here in Hong Kong to sue on the Danish judgment.": But, that is as may be; the fact remains that, by sending the matter to Denmark I would be depriving the Plaintiff of the advantage of the system here, which would enable it immediately to execute on this judgment, and I would be forcing it to commence separate proceedings in Hong Kong of the judgment in Denmark. The Defendant has not satisfied me that the stay would not deprive the Plaintiff of the legitimate juridical advantage which would be available to it, having invoked the jurisdiction of this Court.

10. This by no means covers all the matters that I have taken into consideration, as the recital to the formal Order, which will be drawn up, will show what Affidavits I have read and what portion of other matters I have read. I have taken all those matters into account in exercising my discretion - are all the facts urged upon me so ably by Mrs. Kaplan over nearly one whole day of argument. As I say, in the end, the Defendant has not discharged the onus of proof to satisfy me on a balance of probabilities on the two matters mentioned in the passage from The Abidin Daver which I have cited, and the Summons will be dismissed.

11. Summons dismissed with costs to be taxed and paid forthwith.

*    [1984] A. C. 398