clr/1984/1984_1_853.pdf

(1984)(

1. a)an order setting aside the writ or alternatively (
2. b)an order staying the proceedings, or, alternatively. (
3. c)an order striking ou' the endorsement and thestatement of claim in limine. 1 The application · were based on the following grounds: 5 (
4. a)That the plaintiffs' claim was framed in such away that the sums were claimed as "due upon a promissory note and/or bond and/or otherwise"; and that the plaintiffs should have made their election and decide on what type of documenttheir claim was based, so as to enable ]0 the defendants to defend t'ne action properly as the defences may be varying according to the type οΐ docu­ ment the claim was based upon. (
5. h)That the appellants-plaintiffs brought an action against the defendants in Italy, which was pending before an ftalian Court and which included a claim on the same cause and in which the appellants had a counterclaim exceeding the claim in the action. (
6. c)That Italy was a more appropriate forum for deter­ mination of these proceedings in that the transactions which gave rise to the claim and the counteiclaim arose in Italy, most of the witnesses were in Italy and the case could be more properly adjudicated before the Italian Courts. ]5 20 The trial Judge granled the application in respect of striking out the phrase "and/or bonds and/or otherwise" as well as "and/or undertook and/or engaged" so that the claim be limited to oneon promissory notes but refused theapplication for staying the proceedings. Hence this appeal. 25 The trial Judge held that the proceedings were not vexatious or unjust or that they unjustly harassed the defendants and that the interest of Justice dictated that they should be stayed. The trial Judge, further, held that the fact that evidence in the case would come from witnesses who were mainly located in Italy was totally inadequate toprove what the defendants had to prove in order to succeed. 30 854 35 I C.L.R. 5 10 15 20 25 30 Dolphin Shipping Co. *. Canticri Held, that a plaintiff should not lightly be denied the rigi to sue in a Cyprus Court, if jurisdiction is properly foundei that in considering whether a stay should be granted the Cou must take into account any advantage to the plaintiff and ar disadvantage to the defendant; Jiat the defendant must satis the Court that there is another forum to whose jurisdiction. ! is amenable in which justice can be done between the paiti. at substantially less inconvenience or expense, and that tl stay must not deprive the plaintiff οϊ a legitimate persona!• juridical advantage which would be available to him if he invokt the jurisdiction of the Cyprus Court; that the burden is on t'. appellants to satisfy this Court that the trial Judge failed exercise his discretion on right principles; that if the trial Jud: erred in any way in exercising his discretion then the Cou of Appeal will interfere, but otherwise it is not for this Cou to substitute its discretion for his if he has not erred in ai way in exercising his discretion; that the appellants failed discharge the burden cast upon them to satisfy the Court th the trial Judge erred in any way in exercising his discretion refusing the application for stay of the proceedings in Cypru and that, therefore, the appeals must fail. Held, further, that to the matters taken into considerate by the trial Judge as weighing the scales in favour of the respon ents there may be added the procedural advantage which t respondents may have by having instituted proceedings Cyprus, according to the contents of the affidavit filed on thi behalf, that as a result of any judgment obtained in Cypr they may take steps for setting aside as fraudulent the alienati by the appellants of their three ships, which were registered Cyprus, which took place soon after the incurrence of thi indebtedness to the respondents. Appeals dismisse Cases referred t o : Μι-Henry v. Lewis [1882] 22 Ch. D. 398; 35 Stella v. Savias

(1983)1 C.L.R. 186; Guendjian v. Societe Tunisienne

(1983)1 C.L.R. 588; Christianborg [1895] 10 P. 141; 855 Dolphin Shipping Co. \. Cantieri

(1984)Logan v. Bank of Seatland en./ Others (No. 2) [1906] 1 K.B. 14! at pp. 150-152; Maharanee of Baroda v. Wdd.mtein [1972] 2 All E.R. 689 at p. 693; Egbert v. Short [1907) 2 Ch. 205 at p. 212: Morton's Sittkment 5 v. Norton [1908] I Ch. 471; St. Pierreand Others v. South American Stores (GathandChaves) Ltd. and Others [1936] ! K..B.D. 382 at p. 398; Ailantic Star [1973] 2 ΑΠ E.R. 175; \?:Shamwn v. Rockwarc Glas* Ltd. [1978] ι AM E.R. 449, 10 Abidht Djver [1983] 3 All F.R. 46. Ciisttvrho v. & w r t & /foo/ (U.K.) Ltd. p978] i ΑΠ ΕR 143; Jadranska Slobodan Plovidba v. Photiadis &. Co {!965>IC.L.R. 58 ar p. 6S. Appeals. 15 Appeals by defendants against the judgment of the District Court of Limassol (Artemis, S.DJ.) dated the 8th November, 1982 (Action No. 1856/82) granting plaintiffs applicarion for striking out the phrases "and/or bonds and/or otherwise" and "and/or undertook and/or engaged" whenever they appear in the specially endorsed writ but refusing Their application for staying the proceedings. 20 St. ΜcBride, for the appellants. X. Syllouris, for the respondents. Cur. odv. vult. HADJIANASTASSIOU J . : T h e judgment of the Court will be delivered by Mr. Justice Savvides. SAVVJDES J . : These two appeals against the judgments of the District Court of Limassol in Civil Actions 1006/82 and 1856/82 were heard together as presenting common questions of law a n d fact. The appellants-defendants in both actions are a shipping company having their registered office of business in Limassol, 856 30 25 !l .C.l.lli. (Dolphin'Shipping'Go.Λ·'Cantieri -Sav\ide> ;J. Cyprus, and the respondents-plaintirTs are an Italian company of iGenoa, Italy. The respondents-plaintirTs iin-'bothactions ,by their said,actions .claim against the appellants :asiper ;their specially endorsed writs of summons, a sum .of,about 'U:S. 5 dollars 2,000;000-in.respect of several·"promissory motes and/or tbonds .and/or otherwise", alleged ,to have'.been'issued and/ur signed in Cyprus 'by -the.appellants .which .were presented for payment at the agreed place, i.e. Banca Commercials iltaliamt. Genoa and wercnot paid.and as a result they were:duly protested •10 in.accordance with thelaw. The expensesfor'lheir-protcsiation aswell.as interest'by wayof.-damages. is also claimed. The appellants applied for leave to enter a conditional appear­ ance, which was granted to them but as they tfailed .to uppl> in time.to.have.the writs of summons set.aside,'their appearance T5 'became unconditional. The appellants -filed their applications praying for:i(a) .an order-setting asideahe .writ,or alternatively ?(b) an order staying the -proceedings, or. alternatively. "20 ;(c) .an.order striking .out .the«endorsement and theistatement of .claim Jn limine. "The grounds on which the applications were 'based were 'twofold: Firstly, the applicants-appellants complained about the-way the endorsement on the writ of summons was drafted. in that the plaintiffs' claim was framed in such a way that the '25 sums wereclaimed as "due upon a promissory note and/orbono" ;and/or otherwise'*. It was their contention that the.respond.ents-plaintiflTs should have made their election and decide on what type of document their claim was based, so as.to .enable .them to defend the .action-properly as-the .defences may be 30 .varying according to the : type of document the claim AV.VS based upon. "Secondly, that the appellants-rplaintiffs ^brought _an action against them in Italy, which was pending before an .Italian Court and which "included a claim on the .same..cause .and in .'35 which the appellants had a counterclaim exceeding the.claim.in :the action. In support oTdheir second contention the appellants .sought :torely not only on thegroundrthat there existed.already litigation .Έ57 Sawides J. Dolphin Shipping Co. v. Canticri

(1984)on the same subject-matter pending before another Court (lis alibi pendens), but, also, on the doctrine of "forum non conveniens", on the ground that Italy was a more appropriate forum for determination of these proceedings in that the transactions which gave rise to the claim and the counterclaim 5 arose in Italy, most of the witnesses were in Italy and the case could be more properly adjudicated before the Italian Courts. The respondents opposed the application on the ground that they were entitled to bring their actions in Cyprus, as the cause of action in both cases was based on promissory notes 10 which were issued by the appellants in Cyprus and that the appellants were a company having their registered place of business in Limassol, Cyprus. Also, that there is no agreement or law for the reciprocal enforcement of judgments between the Republic of Cyprus and Italy. If a judgment is obtained in 15 Italy, it cannot be enforced in Cyprus and new proceedings will have to be instituted on such judgment. Furthermore, the proceedings before the Italian Court were in respect of claims totalling to over U.S. dollars 7,000,000, whereas the present actions are only limited to the claim on the promissory 20 notes which were issued in Cyprus. It was further contended that the appellants, after the execution of the said promissory notes, alienated their threeships which wereregistered in Cyprus and that if the proceedings are stayed, the respondents will be deprived of the procedural advantages which they have in 25 Cyprus in taking steps for setting aside the said transfers as fraudulent, and, also, the advantage to apply for the winding up of the defendants and for the appointment of a liquidator to realise any assets of the appellants in Cyprus. The learned trial Judge after hearing lengthy argument on 30 behalf of both sides,granted theapplication inrespect of striking out the phrase "and/or bonds and/or otherwise", as well as "and/or undertook and/or engaged" wherever they appeared on the specially endorsed writ, so that the claim be limited to one on promissory notes as appearing in the prayer in the specially 35 endorsed writ of summons, but refused the application for staying the proceedings. The learned trial Judge after dealing wilh the legal authorities on the matter,- concluded as follows: 858 1 C.L.R. 5 10 15 20 25 Dolphin Shipping Co. v. Cantieri Savvides J. "In examining the evidence before me, which is included in the affidavits, I should, therefore, have in mind that it is upon the Applicants-Defendants to satisfy me that it is just and proper, in the circumstances, to exercise my discretion in their favour, for the burden of proof is upon them. 1 have examined their affidavit in support of their application and I must confess that I can find nothing there which shows, let alone which satisfies me, that the proceedings are vexatious or unjust or that they unjustly harass them and that the interests of justice dictate thai they should be stayed. The only thing they mention, which is of some consequence, is that the evidence in the case will come from witnesses who are mainly located in Italy which, as they suggest, makes Italy the 'forum conveniens'. Having considered the above authorities on the matter, I am of the view that this factor is totally inadequate to prove what the Applicants-Defendants have to prove in order to succeed. They have not shown that there are no advantages to the Respondents-Plaintiffs in suing in both countries, but, on the contrary, it even appears that a judgment in Italy is not enforceable in Cyprus and if one is obtained there, an action on it should be commenced in Cyprus. This was a matter which was thought to be relevant in the case of McHenry v. Lewis (supra). In my judgment, the Applicants-Defendants have failed to dischargetheburden placed uponthemand their application must, therefore, fail". The learned trial Judge'having reached such conclusion, found 30 it unnecessary to deal with the submission of counsel for the respondents-plaintiffs that as the application for stay did not comply with the time limit set by the order of the Court b> whichtheappellants-defendants wereallowed tofilea conditional appearance and the appearance became unconditional. 35 they could not haveraised the mattersraised by iheir application. The present appeals are direcied against such part of the judgment of the trial Court by which the appellant's prayer for stay of the proceedings was dismissed. 859 Savvides J. Dolphin Shipping Co. v. Cantieri

(1984)The grounds of appeal on which the appellant sought to rely and which were fully argued "before us, are the following:

1. The 'trial ^Court erred .in -holding that the ApplicantsDefendants had failed -to discharge the burden cast upon*them so as to enable the Court to stay the proceed- 5 ings.
2. The trial 'Court (placed an additional :burden .of proof •upon the Applicants-Defendants which burden was not .upon them but upon .the Respondents-Plaintiffs.
3. The trial Court gave undue weight to the supposed effect 10 of an Italian judgment and the steps needed to enforce it in 'Cyprus.
4. The trial Court had insufficient or no evidence before it as to .Italian Law. "It has been judicially pronounced in a number of cases of 15 our Courts following and adopting in this respect the decisions of English Courts, that duality of proceedings by two different actions in -Courts of different jurisdiction and in particular an action before a Cyprus Court and one before a foreign Court, a matter known as "list alibi pendens", that our Courts have 20 jurisdiction to stay the proceedings pending before a Court in Cyprus at the instance of a defendant who is also sued for the same cause of action in a foreign country. This practice has its roots in a number of decided cases, dating back to the last century and has been firmly established by thejudgment of the 25 High Court in England in the case of McHenry v. Lewis [1882] 22 Ch. >D.
5. The following opinion was expressed by Jessel, M.R. at page 399: "That question is, whether or not when an action is brought by a man in this country against a Defendant and the same 30 Plaintiff brings an action in a foreign country against the "same Defendant for the same cause of action this Court has jurisdiction in a proper case to stay the action in this country on the ground that the Defendant is doubly vexed by reason of the action bc'ng brought also ; n the foreign 35 country. 860 I C.L.R. 5 Dolphin Shipping Co. \. Canlieri Snviides J I am of opinion that there is such a jurisdictioj in this Court, and that it is pan of the general jurisdictioi of the Court to prevent a Defendant being improperly vexed by legal procedure. 1 see no reason on principh why, if the Court is satisfied that the Defendant is beinf improperly vexed, the mere fact of one of the actions bein; in this country and one m a foreign country should preven the Court protecting the Defendant from being so impro perly vexed. So much for the general jurisdiction". 10 In the McHenry case Ihe Court of Appeal in drawing th. distinction between two actions instituted in the same countr; and the position where one of the actions is brought in Englam and the other in a foreign country, concluded that whena plain tiff sues a defendant for the same matter in two Courts ii 15 England such a proceeding is prima facie vexatious, and th< Court will generally, as of course, put the plaintiff to his electioi and stay one of the suits. But if one of the actions is in a fore ign country where there are different forms of procedure am different remedies, there is no presumption that the multiplied 20 of actions is vexatious and a special case must be made out ti induce the Court to interfere. The Court has, however, powe to interfere in such case under its general jurisdiction to resirah vexatious and oppressive litigoiion, and will interfere in a prope case even before decree. 25 30 35 40 In considering the circumstances under which the Cour wiN act, he had this to say at pp. 402, 403 (McHenry case ibid) "Now what will happen as regards the second action We have got these parties to the litigation who coult not be made liable in England, and who could be mad' liable in America, and we have got this also, that the partie ίο the action in America who are resident in England can be made liable in England and cannot be made liable ir. America; for although you may get judgment against them in America, you cannot enforce that judgment in England you must bring an action upon it. So strongly was thai fell by the moving parties that they actually offered a personal undertaking to allow judgment to be entered up against them in England, if judgment is obtained in thi American action, showing that the difficulty was preseni to their minds. Therefore, no special case is made ou 861 Sa*>ides J. Dolphin Shipping Co. v. Cantieri

(1984)for stopping the American or the English actions, but on the contrary there isaspecial case for two actions; because you can only enforce the claim of the Plaintiffs directly by getting judgment in both countries But there is another thing which has been picssing upon my miud, I do not know the state of the cause iists in the Umted States, tnough I know something about the state of them here; and it may well be that it may be eminently desirable to let both actions go on with 10 a view of getting a speedy trial. It is no doubt to a certain extent a hardship on the Plaintiff who is bringing two rclions; but 1 cannot at present say that there is any special case made out in this instance for the interference of the Court, and as far as 1 can see there is very strong ground 15 for saying that the actions are not only brought bona fide, but with a decided intention to enforce the remedy to which the Plaintiff believes himself entitled. On the whole it seems to me that we ought not to interfere by staying the English actions". 20 Cotton, L.J. in the same case at pages 406, 407, had this to say: "But here, under the circumstances of this case, ought we to exercise a jurisdiction which I assume we have, and to make the order? In thefirstplace, it isajurisdiction which 25 one ought to exercise with extreme caution. Stopping in the middle of a suit a plaintiff from going on when he hasa right ofaction asagainst the defendant, isajurisdiction which has to be exercised with very considerable caution j But I cannot say here that we 30 ought to come to the conclusion, which is the principle on which the jurisdiction is to be exercised, that proceeding with these two suits in the two different tribunals is vexatious. It may be harassing, no doubt, because it is very harassing to have an action brought against one in any 35 tribunal at all, but that isnot enough. Itmust bevexatiously harassing the Defendant on the part of the Plaintiff, whose action is sought to be stayed; and I can see, as the Master of the Rolls has pointed out, some things which 862 1 C.L.R. Dolphin Shipping Co. v. Cantieri Savvides J. may make it necessary, or at all events desirable, for the Plaintiff, without being vexatious, to prosecute the two suits". To which, Bowen, L.J., had this to add at pages 407, 408: 5 10 15 "It agree that it would be most unwise, unless one was actually driven to do so for the purpose of deciding this case, to lay down any definition of what is vexatious or oppressive, or to draw a circle, so to speak, round this Court unnecessarily, and to say that it will not move outside it. I would much rather rest on the general principle that the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end. I would rather do that than attempt to define what vexation and oppression mean; they must vary with the circumstances of each case". And concluded as follows at page 409: 20 25 "The fact that no English action has ever yet been stayed on the ground of concurrent litigation in America is a strong argument to prove that such concurrent American litigation is not by itself a sufficient reason why an English action should be stayed. That the Court has power to do it Iagree. It is clear not merely from reason, but from the language of Lord Cotternham and Lord Cranworth, referred to by Lord Justice Cotton, that this Court could do it if necessary for the purposes of justice, but some special circumstances ought surely to be brought to the attention of the Court beyond the mere fact that an action is pending between theparties on the same subject-matter in America". 30 The principles on which this Court may stay proceedings, have been recently considered by the Supreme Court in the case of Stella v. Sayias

(1983)1C.L.R. 186and Guendjianv. Societe Tunisienne

(1983)1 C.L.R. 588. The first case concerned a claim by a foreigner in respect of a sum of money paid to a 35 third person in Athens in settlement of 13 bills of exchange signed by the defendant as principal debtor and the plaintiff as guarantor in respect of which ajudgment of the Greek Court had been issued against the plaintiff in Athens and the amount waspaid byhim in Greece. The causeof action arose in Greece 863 Savvides J. Dolphin Shipping Co. v. Cantieri

(1984)and all necessary witnesses whose attendance could not be secured in Cyprus were in Greece. The Court, after reviewing the relevant English authorities on the matter held that the Court is vested with a discretion to refuse the exercise ofjurisdiction in a proper case and has inherent jurisdiction to stay 5 an action brought within thejurisdiction in respect of a cause of action which arose out of the jurisdiction, if satisfied that no injustice will be done thereby to the plaintiff and that the defendant would be subject to such injustice in defending theactionaswouldamount tovexationandoppressiontowhich 10 he should not besubjected if he weresuedin another accessible Court where the cause of action arose; that the trial Court properly exercised its discretion in the case and that in the circumstances the continuation of the action would have worked injustice on the respondent because it would be oppressive or 15 vexatiousto him whereasnoinjustice would result to theappellant if he pursued his claim in Greece. Inthe second case,the causeofaction arose in Beirut. Both plaintiffs and defendants were living in Beirut and the action was brought in Cyprus. The defendants entered a conditional 20 appearance butthrough inadvertancefailed tofileanapplication for setting aside the writ of summons for lack of jurisdiction within the prescribed timeand their application was withdrawn and dismissed. After an application for extension of the time within whichtoapply wasdismissed, theconditionalappearance 25 of the respondents becamean unconditional one, but when the application for extension of time wasdismissed, the Judge who dealt with it expressed the view that the defendants were still entitled toraiseanobjection astothejurisdiction oftheNicosia District Court, by their statement of defence, and they actually 30 did so whereupon the trial Court refused jurisdiction. The Court of appeal in affirming the decision of the trial Court applying the tests set out in a series of English decisions and the principles emanating therefrom, concluded as follows: "In our opinion, the basic transaction is that which was 35 concluded between the parties in Beirut in relation to the aforementioned bank guarantee of £12,000 and any subsequent transactions between the parties, insome of which there were, also, involved goods to be found in Cyprus, -were merely ancillary and consequential to the said main 40 transaction. 864 Ί C.L1R. 5 10 Μ5 Dolphin Shipping Co. v. Cantieri Savvides J. Furthermore, as a result of such main transaction in Beirut a proceeding known as'execution' had already been instituted, prior to the filing of the.action .by the appel­ lant in Cyprus, against the appellant by the respondents in Beirut, ^in respect of the obligation of the appellant to the lespondents which emanated from the aforesaid bank guarantee. :ln .theUight of all the foregoing considerations, including that of effectiveness of its jurisdiction which was .expressly relied on 'by 'the trial Court, we are satisfied .that there existed aforunvother than thatof thetrial Court in'Cyprus, to whose jurisdiction the present dispute between the .parties was amenable and where justice could have been done between them at substantially less inconvenience; and that the refusal o'f jurisdiction by the trial Court did not actually deprive the appellant of any 'legitimate ad­ vantage which would be available to him by invoking the jurisdiction of the trial Court here in Cyprus". The criteria which the 'Courts .may take into consideration 20 tin dealing with an application for stay of proceedings have been ^considered in a series of cases since the decision in McHenry *v. 'Lewis (supra). .(See The Cliristianborg '[1895] .10 P. 141 in which McHenry v. 'Lewiswas approved and applied). 'In the .majority judgment in The Christianborg (Baggallay 25 .and Fry, L.JJ., with Lord Esher M.R. dissenting) we read the following in the judgment of Baggallay, L.J., at .pp. 152, .153: 30 .35 " I take it to be.established by a series of authorities that where a plaintiff sues the same defendant in respect of the same cause of action in two Courts, one in this country and another abroad, there is a jurisdiction in the Courts of this country to act in one of three ways—to put the party so suing to his election, or, without allowing him to elect, to stay all proceedings in this country, or to stay all 'proceedings in the foreign country—it is not in form .a stay of proceedings in theforeign Court,but an injunction, •restraining .the .plaintiff from prosecuting .the proceedings i n the.foreign country, which of course.cannot be.enforced against him if .he is.a foreigner .and is-neither-present in this country -nor -has property here. It is an injunction 86~5 Savvides J. Dolphin Shipping Co. v. Cantieri

(1984)which may become inoperative, but that is how the proceedingsin theforeign Court may in effect bestayed. The principle of election is clearly expressed in the case ofMcHenryv.Lewis,the marginal note of which case correctly represents the decision. The judgment there drew a 5 distinction betweenthetwoactionsbeingbrought in English Courts, and a case in which one action is brought in a British Court and the other in a foreign Court, and the distinction is that which I draw in this case, that prima facie it is vexatious to sue the same party in two different 10 actions in two British Courts, but that is not necessarily so where one of the actions is in a foreign Court. You must examine into the circumstances of the case, and see whether, under the circumstances, it is as vexatious as it would beassumedto be,if the same actions had beencom- 15 menced in two British Courts". In Loganv. Bank of Scotland and Others(No. 2) [1906] 1 K.B. 141 we read the following in thejudgment of Sir Gorell Bams, President of the Court of Appeal at pp. 150-152: "The English Courts are freely open to persons foreign 20 to this country seeking to enforce their rights against our corporations, companies and citizens, in cases in which the Courts can properly exercise jurisdiction, but, where I think we ought to be careful not to check this freedom, I am of opinion that weought not to allow this hospitality 25 to be abused. The difficulties which arise in the exercise of this power of the Court do not appear to be so much difficulties in stating the law as difficulties in administering or applying it. The Court should, on the one hand, see clearly that in stopping an action it does not do injustice, 30 and, on theother hand, Ithink theCourt ought to interfere whenever there is such vexation and oppression that the defendant who objects to the exercise of the jurisdiction would be subjected to such injustice that he ought not to be sued in the Court in which the action is brought, to 35 which injustice hewould not besubjected if the actionwere brought in another accessible and competent Court If, for instance, as was put in argument, a dispute of a complicated character had arisen between two foreigners 866 I C.L.R. 5 Dolphin Shipping Co. v. Cantieri Savvides J. in a foreign country, and one of them were made defendant in an action in this country by serving him with a writ while he happened to be here for a few days' visit, 1apprehend that, although there would be jurisdiction in the Court to entertain the suit, it would have little hesitation in treating the action as vexatious and staying it". The dictum of Sir Gorell Barnes, P. in the last paragraph of the above citation was referred to and explained in Maharanee ofBaroda v. Wildenstein [1972]2 All E.R. 689 by Lord Denning 10 M.R. at p. 693, as follows: 15 20 25 " .if a defendant is properly served with a writ whilst he is in this country, albeit on a short visit, the plaintiff is prima facie entitled to continue the proceedings to the end. He has validlyinvoked thejurisdiction of the Queen's Courts; and heisentitled to requirethose Courtsto proceed to adjudicate on his claim. The Courts should not strike it out unless it comes within one of the acknowledged grounds, such as that it is vexatious or oppressive, or otherwise an abuse of the process of the Court; see RSC Ord. 18, r. 19. It does not become within those grounds simply because the writ is served on the defendant whilst he is on a visit to this country. If his statement of claim discloses a reasonable cause of action, he is entitled to pursue it here,even though it did arisein a foreign country. It is not to be stayed unless it would plainly be unjust to the defendant to require him to come here to fight it, and that injustice is so great as to outweigh the right of the plaintiff to continue it here". In Egbert v. Short [1907] 2 Ch. 205, at 212, Warrington, J. 30 expressed the following opinion:— 35 "Thejurisdiction which Iam asked to exerciseisone which, as has been frequently said, is to be exercised by the Court withextremecaution; and, further, it isonewhichthe Court oughtnotto exerciseifbysodoinganinjustice willbecaused to the plaintiff, and the real question which I have to decide iswhether bypreventing what, inmyjudgment,isa grievous injustice tothedefendant, Ishallatthe sametimebecausing an injustice to the plaintiff. If I should be doing so, 867 S a n ides J. Dolphin Shipping Co. v. Cnntieri .

(1934)then 1think it would be my duty to refuse this application. That is the point that I must therefore consider". In Norton's Settlement v. Norton [1908] 1 Ch. 471, Vaughan "Williams 'L.J. adopted the dictumof Sir.Gorell Barnes in Logan v. Bank of Scotland .(No. 2) (supra) at p. 150 and went,on to 5 add the following at pp. 479, 480: "As Ϊ have already pointed out, in order to-justify a stay it is, as a rule, necessary that something more should exist than amere balanceof convenience infavour of proceedings in some other country. In my opinion it must be proved 10 to the satisfaction of the -Court that either the expense •or the difficulties of trial in this country are so great that injustice will be done—in this sense, that it will be very difficult, or practically impossible, for the litigant who is applying for the stay togetjustice inthis country. Speak- 15 ing generally, one may say-that the litigant must shew that some injustice will be done to him. There is also another consideration to be borne in mind. If the Court, taking all the facts into consideration, comes to the con­ clusion that a plaintiff in commencing an action in this 20 country has not done so on account of any legitimate advantage which a trial in this country will give him, but for purposes entirely foreign to that legitimate purpose, then, apart from any question as to expense or inconven­ ience,'in my opinion not only has the Court jurisdiction, 25 but it is its duty, to stay the proceedings". The rule as.to stay of proceedings was stated by Scott, L.J., in St. Pierre and Others v. South American Stores (Gath and Chaves) Ltd. and Others [1936] 1 K.3.-D. 382 at p. 398, as fol­ lows: "The true rule about a stay „ -so far as relevant to this case,.may I think be stated thus: (I). A mere ba­ lance of convenience is nota sufficient ground for depriving a plaintiff of the advantage of prosecuting his action in an English"Court if it is-otherwise properly brought. The 35 -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 t h e conti­ nuance of the action would work an injustice because it 40 868 30 1 C.L.R. 5 10 Dolphin Shipping Co. τ. Cantieri Savvides J. 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. These propositions are, I think, consistent with and supported by the following cases: McHenry Lewis{\); Peruvian GuanoCo. v. Bockwoldt

(2); Hyman v. HelmQ); Thornton v. Thornton

(4); and Logan v. Bank of Scotland (No.2)

(5)". The above dictum was applied in Maharanee of Baroda v. Wildenstein [1972] 2 All E.R. 689, the Atlantic Star [1973] 2 All E.R. 175, MacShannon v. Rockware Glass Ltd. [1978] 1 All E.R. 449, The Abidin Daver [1983] 3 All E.R. 46. In considering the above dictum, Lord Wilberforce in the Atlantic Star (supra) had this to say at pp. 193-194: 15 20 25 30 35 "This clear and emphatic statement has proved its useful­ ness over theyears. It has been applied by judges, without difficulty, to large variety of cases. 1 should be most reluctant, even if I were capable, of replacing it by some wider and more general principle. But too close and rigid an application of it may defeat the spirit which lies behind it. And this is particularly true of the words 'oppressive' and 'vexatious'. These words are not statu­ tory words: as I hope to have shown from earlier cases, they are descriptive words which illustrate but do not confine the Courts' general jurisdiction. They are pointers rather than boundary marks. They are capable of a strict, or technical application; conversely, if this House thinks fit, and as I think they should, they can in the future be interpreted more liberally. In my opinion, the passage cited embodies the following principles—all of which have been discussed in earlier authorities. First, a plaintiff should not lightly be denied the right to sue in an English Court, if jurisdiction is properly founded. The right is not absolute. The Courtsare open, even to actions between foreigners, relating to foreign matters. But they retain a residual power to stay their

(1)22Ch.D.397

(4)11P.D. 176

(2)[1883]23Ch. D.223.

(3)[1883]24 Ch.D.531

(5)[1906] 1Κ.B. 141,150,151. 869 Simides J- Dolphin Shipping Co. v. Cantieri proceedings. ..._

(1984)_ _ _ .-Secondly, in considering whether a stay should be granted the Court must takeintoaccount (i)anyadvantage to the plaintiff; (ii) any disadvantage to the defendant: this is the critical equation, and in some cases it will be 5 a difficult one to establish. Generally this is done by an instinctive process—that is what discretion, in its essence is. Butthereareperhapssomeelements whichitispossible to disengage and make explicit. In the first place, I do not think it would be right to say that any advantage to 10 theplaintiff issufficient toprevent adefendant from obtaining a stay. The cases say that the advantage must not be 'fanciful'—that a 'substantial advantage' is enough. I do not even think that one can say that the advantage must be substantive (i.e. in the existence in English law 15 of some more favourable substantive rules than would apply elsewhere)rather than adjectival, though moreweight might be given to the former. An example given by Lord Denning MR illustrates this: a motor collision in Italy between two Italian citizens,oneof whom catches theother 20 here and sues him. Lord Denning MR says that this would be purely Italian and so (inferentially) should be stayed. But if this is right, it must follow that advantage to a plaintiff is not in itself decisive for the suit may well have been brought here because our Courts give higher 25 damages, or damages under broader heads: So if a stay is tobegranted it must bebecause the Courts can additionally consider the nature of the case, and the disadvantage to the defendant. A bona fide advantage to plaintiff is a solid weight in the scale, often a decisive weight, but 30 not always so. Then the disadvantage to the defendant: to be taken intoaccount at allthismust beserious,morethan themere disadvantage of multiple suits; to prevail against the plaintiff's advantage, still more substantial—how much 35 more depending how great the latter may be. The words 'oppressive' or 'vexatious' point this up as indicativeof the degree and character of the prejudice that must be shown. Ithink toothat there mustbearelativeelementinassessing both advantage and disadvantage—relative to the indivi- 40 dual circumstances of the plaintiff and defendant". 870 1 C.L.R. Dolphin Shipping Co. v. Cantieri Sawides J. Lord Wilberforce, in the same judgment, at page 190in dealing with the doctrine of "forum non conveniens" had this tosay: 5 10 15 "We were urged to take this opportunitytobringEnglish lawinto line with these legal systemsand hold 'forum non conveniens' to be a plea available in England. My Lords, I am of opinion that this is a course whichwe cannot take. It is clear from decisions to which I shall refer, that for some 100yearsthelawof England has taken a divergent path with its own rules, defined and adjusted in numerous cases, some of high authority. This same path has been followed in other Commonwealth jurisdictions—Australia, Canada, India, New Zealand, The argumentsinfavour of 'forum non conveniens'asa general rule are not so overwhelming that weshouldnowmake a radical change of direction: indeed there is much to be said for the Englishrule, provided that it isnot too rigidly applied. Iwouldnotthereforefavour acceptingtheradical solution". 20 And at page 192in dealing with the dictum of Bowen L.J. in McHenryv.Lewis(supra)atpp.407,408,towhichreferencehas already been made, had this to say: "It isobvious that this important case depends on a principle quite distinct from 'forum non conveniens': it 25 recognisesan exceptional power capable of being described by reference to 'vexation' and 'oppression' but shows that these words are to be widely interpreted in relation to the circumstances and in the light of the fact that the Court's discretion is general". 30 In the same case we read the following in the judgment of Lord Reid at pp. 180, 181: " a foreign plaintiff who can establish jurisdiction against a foreign defendant by any method recognised byEnglishlaw,isentitledtopursuehisactionintheEnglish 35 Courtsifhegenuinelythinksthatthat willbetohisadvantage and is not acting merely vexatiously. Neither the parties nor the subject-matter of the action need have any connection with England. There may be proceedings on the same subject-matter in a foreign Court. It may 871 Sawides J. Dolphin Shipping Co. v. Cantieri

(1984)a far more appropriate forum. The defendant may have to suffer great expense and inconvenience in coming here. In the end the decisionsof the English and foreign Courts may conflict. But nevertheless the plaintiff has a right to obtain the decision of an English Court. He must not act vexatiously or oppressively or in abuse of the processoftheEnglishCourt,butthesetermshavebeennarrowly construed So, I would draw somedistinction between a case where Englandis the natural forum for the plaintiff and a case 10 wherethe plaintiff merelycomesheretoservehisownends. In the former the plaintiff should not be 'driven from the judgment seat' without very good reason, but in the latter the plaintiff should, I think, be expected to offer some reasonablejustification for hischoice offorum ifthe defen- 15 dant .seeks a stay. If both parties are content to proceed here there is no need to object. There have been many recent criticisms of 'forum shopping' and I regard it as undesirable. I think that a key to the solution of the problem may 20 be found in a liberal interpretation of what is oppressive on thepart of the plaintiff. The position of the defendant must beput inthe scales. In the end it must beleft to the •discretion of the Court ineach case where a stay is sought, and the question would be whether the defendants have 25 clearly shown that to allow the caseto proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendants. That appears to me to be a proper development of the existing law". 30 In 'the MacShannon case Lord Diplock at p. 630 after interpreting the majority speeches in the Atlantic Star (supra) formulated and restated the principles as follows: "In order to justify a stay two conditions must be satisfied, onepositiveand theother negative: (a)thedefendant 35 must satisfy the Court that there is another forum to whosejurisdiction he is amenable in which justice can be done between the partiesat substantially lessinconvenience 872 1 C.L.R. Dolphin Shipping Co. v.Cantieri Sawides J; or expense, and (b) the·stay must not deprive the plaintiff of alegitimate personal1or juridical advantage which would" be available to him if he^invoked the jurisdiction of the English Court". 5; 10' 1!5 20' 25 30 35· And Lord Salmon at- p ; 626,. had this, to add:. "In an action.brought in England when its natural.forum. is Scotland, I consider,the question.as to whether it should· be-stayed, depends on whether;the defendants can-establish. that to refuse- a stay would produce injustice.. Clearly if the trial of the action in England'would afford the Scottish plaintiff no real advantage and ; would*, be substantially more expensive and' inconvenient than' if it were^ tried!iht Scotland', it would be-unjust to>refuse· a.slay. If,', on' the·· other hand, a trial" in England would" ofljer the plaintiff some; realpersonal: advantage,i.e:.if hehad ; cometolive in England', a balance would have,to be struck and'the Court . might in its discretion consider that,justice demanded',that the trial should' be allowed to proceed-in England'·(see' e.g.. Devihe v. Cementation Co. Ltd.). To my mind,, the real test of stay depends on what the Court irt its discretion'. considers that justice demands., Γ prefer this test to the test of whether the plaintiff has behaved 'vexatiously' or 'oppressively1 on a so-called liberal interpretation of these words. I do not, with respect, believe that it is possible to interpret them liberally without emasculating" them and completely destroying their truemeaning. Surely if a man genuinely but wrongly believes that it is to his advantage for his action to be tried'in England rather than in Scotland, and accepts his solicitor's advice that this will cause the-defendants no unnecessary' expense or' inconvenence, he cannot properly be· called vexatious, or oppressive if he oppose a. stay of the action in England.. Nevertheless,, the Court will impose a. stay if,, in their discretion,, they decide that, the defendants have· proved that it would be unjust to. refuse to do so".. The dictum of Lord'Diplock in the above case and its.restate­ ment of theprinciple was adopted in Castanhov..Brown & Root (U.K.) Ltd. [1981]-1 All·E.R. 143 and accepted by this Court in Guendjian v. Societe Tunisienne (supra). 873 Sawides J. Dolphin Shipping Co. τ. Cantieri

(1984)With the above principles in mind we shall now proceed to consider whether in the circumstances of the present case the learned trial Judge, in dismissing appellants' application, exer­ cised his discretion on right principles. The burden is on the appellants to satisfy this Court that he failed to do so. If the 5 learned trial Judge erred in any way in exercising his discretion, then the Court of Appeal will interfere, but otherwise it is not for this Court to substitute its discretion for his if he has not erred in any way in exercising his discretion (see Jadranska Slobodna Plovidba v. Photos Photiades & Co.

(1965)1 C.L.R. 10 58 per Josephides, J. at p. 68). Bearing in mind the above principles in the light of all the material before us,and having listened carefully able argument on bothsides, wt*have reached theconclusionthattheappellants failed to discharge the burden cast upon them to satisfy the 15 Court that the learned trial Judge erred in any way in exercising his discretion in refusing theapplication for stay of theproceed­ ings in Cyprus. Thetest applied by the learned trial Judge and the principles followed are in line with the principles applied by this Court in decided cases and by the English Courts, as 20 developed and expounded by the majority speeches in The AtlanticStar (supra) and which were adopted in the Castanho case (supra). The speeches in The AtlanticStar represent the modern statement of the law on this matter and this has been affirmed by Lord ScarmanintheHouseofLordsinthe Castanho 25 case (supra) at pp. 150-151 where he had this to say: "The principle is the same whether the remedy sought is the stay of English proceedings or a restraint on foreign proceedings. The modern statement of the law is to be found in the majority speeches in the AtlanticStar [1973] 30 2 All E.R. 175, [1974] A.C. 436". , To the matters taken into consideration by the learned trial Judge as weighing the scales in favour of the respondents we may add the procedural advantage which the respondents may have by having instituted proceedings in Cyprus, according 35 to the contents of the affidavit filed on their behalf, that as a result of anyjudgment obtained in Cyprus they may take steps for setting aside as fraudulent the alienation by the appellants of theirthreeships,which wereregistered inCyprus, which took 874 1 C.L.R. Dolphin Shipping Co. v. Cantieri Sawides J· place soon after the incurrence of their indebtedness to the respondents. In the result both theseappeals fail and are hereby dismissed with costs in favour of the respondents. 5 Appeals dismissed with costs. 875