Menu

How to write a first class dissertation: Chapter 2: New Propositions

by WardBlawg on October 28, 2010

Take a proposition that has never been discussed and debate it

Another thing that truly separates a first class dissertation from a second class one is discussion of ideas and issues that have never before been discussed. The following is an example of such a proposition and discussion, all of which stemmed from one footnote in an academic article that said a certain proposition “had never been discussed before in the courts of the UK”. Finding this loophole was essential to the dissertation’s success.

3.4. Conflict with Forum non Conveniens

An export of Scots law, forum non conveniens was accepted into English law in Spiliada Maritime Corporation v Cansulex Ltd, becoming indistinguishable from Scots law. Under the Spiliada test, there are two stages: first, the defendant must show that there is some other available forum which is clearly more appropriate for the trial of the action, upon which a stay will ordinarily be granted; second, upon the first stage being satisfied, it is for the claimant to show, through cogent evidence, that justice requires that a stay should not be granted.

Advocate General Léger has suggested explicitly that the forum non conveniens doctrine, as operating under this Spiliada test, may be incompatible with Article 6, given that the steps involved for the claimant in its application “have a cost and are likely considerably to prolong the time spent in the conduct of proceedings before the claimant finally has his case heard.” Although the UK courts have never discussed this proposition, there is a potential that forum non conveniens is indeed incompatible with the reasonable time requirement in Article 6.

3.4.1. General Operation

Since the place of trial is decided through the exercise of judicial discretion, it is axiomatic that additional cost and time will be incurred in the domestic court, which may appear somewhat inappropriate in light of the parties having to “litigate in order to determine where they shall litigate.” Notwithstanding, given that the same forum will rarely be in the best interests of all parties, particularly highlighted by different choice of law rules, choice of forum is of crucial importance and rightfully so contested. In this respect alone, the time and cost involved may be justified. Moreover, it should be noted that it is the defendant who asks for a stay, thus incurring additional expenses, which expenses he might be expected to pay.

Application for a stay is usually, and perhaps ought to be, made early. Procedural time-limits are set for such an application, despite the court retaining its discretionary power to stay proceedings. Notwithstanding, the longer an application is left, the greater the threat of the proceedings not being aborted as a matter of judicial reluctance. Moreover, if Lord Templeman’s view that submissions should be measured in hours not days with the rarity of appeals holds true, such time and expense should be contained to a minimum. This can be contrasted with the American experience of the doctrine, where forum non conveniens can produce forum battles that can last for years, such that the doctrine may even be labelled a “delaying tactic.”

3.4.2. First Limb of Spiliada

As noted, there are various circumstances which can justify delay under Article 6. In assessing the complexity of a case, consideration is given to the number of witnesses , the need for obtaining expert evidence and the later intervention of other parties. It can be seen that these factors mirror the appropriateness factors considered under the first limb of the Spiliada test.

Thus, in Lubbe v Cape Industries Plc the emergence of over 3,000 new claimants gave greater significance to the personal injury issues, the investigation of which would involve a cumbersome factual inquiry and potentially a large body of expert evidence, such that South Africa was rightfully identified as the most appropriate forum under the first limb of Spiliada.

Moreover, in Spiliada, similar litigation had already taken place over another vessel, the Cambridgeshire, such that the proceedings would be more appropriate in England. Termed the “Cambridgeshire factor,” it is persuasive where advantages of “efficiency, expedition and economy” would flow naturally from the specialist knowledge gained by the lawyers, experts and judges in the related proceedings. However, successful use of this factor has been extremely rare.

Although conveniens means “appropriate”, not “convenient”, considerations of convenience and expense are still relevant. Thus, in both The Lakhta and The Polessk , a stay was granted because the dispute could be resolved more appropriately in the Russian Court at far less expense and far greater convenience for those involved, in light of, inter alia, the availability of witnesses and other evidence.

Further, speed of a trial itself may be decisive in balancing appropriateness factors. For example, in Irish Shipping Ltd v Commercial Union, although the courts of both England and Belgium were appropriate, the dispute could be resolved more quickly in the English court given the more complex position of the plaintiff’s title to sue under the governing law in Belgium; therefore a stay of the English proceedings was refused. Moreover, the availability of an early trial date is material in determining the most appropriate forum ; indeed, “speedy justice is usually better justice.”

It can therefore be seen that the factors considered in the first limb of the Spiliada test reflect the justifications for delay under the reasonable time requirement of Article 6(1) and indeed consideration of these factors may result in an overall speedier trial. Hence, determining whether or not to apply the forum non conveniens doctrine is more than justifiable. Further, it is worth considering whether delay by the foreign court itself can be avoided.


Endnotes

Sim v Robinow (1892) 19 R 665.
[1987] AC 460.
Crawford and Carruthers: 2006, pp157-158.
Spiliada (n13), pp474-477.
Opinion of A.G. Léger in Owusu (n29), at [270]. Hare perceives that paragraph 42 of Owusu is “strangely reminiscent” of A.G. Léger’s suggestions: Hare: 2006, p172 n.96.
Fawcett; 2007, p9.
Slater: 1988, p554; Robertson: 1987, p414; Zhenjie: 2001, p157.
Cf. Spiliada (n72), p464 per Lord Templeman.
Crawford and Carruthers: 2006, p157.
Bell: 2002, paras.2.40-2.42, 2.58.
Svantesson: 2005, pp411-412.
Briggs and Rees: 2002, p220.
Despite potential for re-application: Owens Bank Ltd v Bracco [1992] 2 AC 433, p474.
E.g. in England, CPR Part 11.
Ibid., r.3.1(2)(f).
Briggs and Rees: 2005, pp324-325.
Spiliada (n72), p465.
E.g. Lacey v Cessna Aircraft (1991) 932 F.2d 170.
Green: 1956, p494.
Supra p8.
Andreucci v Italy [1992] ECHR 8.
Wemhoff v Germany (1968) 1 EHRR 55.
Manieri v Italy [1992] ECHR 26.
[2000] 1 WLR 1545.
[2000] 2 Lloyd’s Rep. 383, p391; however, a stay was not granted because substantial justice could and would not be done in the South African forum under the second limb of Spiliada, see infra p25.
Spiliada (n72), p469.
Ibid., p486.
Collins et al: 2006, para.12-030 n.34.
The Atlantic Star [1974] AC 436, p475; Spiliada (n72), pp474-475.
Hill: 2005, para.9.2.23; wastage of cost is an important consideration in granting a stay, whether under forum non conveniens or not (Carel Johannes Steven Bentinck v Lisa Bentinck [2007] EWCA Civ 175.)
[1992] 2 Lloyd’s Rep 269.
[1996] 2 Lloyd’s Rep 40.
[1991] 2 QB 206.
Ibid., p246.
Xn Corporation Ltd v Point of Sale Ltd [2001] I.L.Pr. 35.
Ibid., at [14]

WardBlawg

WardBlawg

Legal Blogger at WardBlawg
+Gavin Ward is the founder of WardBlawg, Director of YouBlawg Limited and Operations Director at Moore Legal Technology Limited, specialising in helping law firms, lawyers and businesses grow their businesses online and aiming to help get great legal content published and shared across the web. Gavin created this law blog or ‘blawg’ to aim to contribute useful updates, thoughts and advice to help law firms, businesses and the legal profession in the UK and across the world succeed both online and offline.
WardBlawg
WardBlawg

Comments on this entry are closed.

Previous post:

Next post: