“(5) The fundamental principle In cases where jurisdiction has been founded as of right, i.e. where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens… In The Abidin Daver [1984] A.C. 398 , 411, Lord Diplock stated that, on this point, English law and Scots law may now be regarded as indistinguishable. It is proper therefore to regard the classic statement of Lord Kinnear in Sim v. Robinow (1892) 19 R. 665 as expressing the principle now applicable in both jurisdictions. He said, at p. 668: "the plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice." ii) At page 475 Lord Goff made clear that the question was not one of convenience but as to which was the or the more appropriate forum: “In the light of these authoritative statements of the Scottish doctrine, I cannot help thinking that it is wiser to avoid use of the word "convenience" and to refer rather, as Lord Dunedin did, to the appropriate forum.” iii) Lord Goff then dealt with the application of the principle, and held at page 476: “In my opinion, having regard to the authorities (including in particular the Scottish authorities), the law can at present be summarised as follows. (a) 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 for the interests of all the parties and the ends of justice. (b) As Lord Kinnear's formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay (see, e.g., the Société du Gaz case, 1926 S.C.(H.L.) 13 , 21, per Lord Sumner; and Anton, Private International Law (1967) p. 150). It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country (see (f), below).” iv) Lord Goff then returned to the need for the Defendant to show that the alternative forum was “more appropriate” saying at pp477-478: “(c)… In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see MacShannon's case [1978] A.C. 795 , per Lord Salmon); and there is the further advantage that, on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions. I may add that if, in any case, the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas. (d) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795 , 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case, 1926 S.C. (H.L.) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398 , 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.” v) Lord Goff then stated that the consequence of this was that ordinarily if another forum was shown to be “more appropriate” then a stay would be granted but not if justice required that it should not, saying at p478-9: “(e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay; see, e.g., the decision of the Court of Appeal in European Asian Bank A.G. v. Punjab and Sind Bank [1982] 2 Lloyd's Rep. 356 . It is difficult to imagine circumstances where, in such a case, a stay may be granted. (f) If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; see The Abidin Daver [1984] A.C. 398 , 411, per Lord Diplock, a passage which now makes plain that, on this inquiry, the burden of proof shifts to the plaintiff. How far other advantages to the plaintiff in proceeding in this country may be relevant in this connection, I shall have to consider at a later stage.” vi) Lord Goff went on a p482 to consider how and to what extent other advantages to a claimant of proceeding in this jurisdiction should be taken into account, saying: “(8) Treatment of "a legitimate personal or juridical advantage" Clearly, the mere fact that the plaintiff has such an advantage in proceedings in England cannot be decisive. As Lord Sumner said of the parties in the Société du Gaz case, 1926 S.C.(H.L.) 13 , 22: "I do not see how one can guide oneself profitably by endeavouring to conciliate and promote the interests of both these antagonists, except in that ironical sense, in which one says that it is in the interests of both that the case should be tried in the best way and in the best tribunal, and that the best man should win." Indeed, as Oliver L.J. [1985] 2 Lloyd's Rep. 116 , 135, pointed out in his judgment in the present case, an advantage to the plaintiff will ordinarily give rise to a comparable disadvantage to the defendant; and simply to give the plaintiff his advantage at the expense of the defendant is not consistent with the objective approach inherent in Lord Kinnear's statement of principle in Sim v. Robinow, 19 R. 665 , 668. The key to the solution of this problem lies, in my judgment, in the underlying fundamental principle. We have to consider where the case may be tried "suitably for the interests of all the parties and for the ends of justice." Let me consider the application of that principle in relation to advantages which the plaintiff may derive from invoking the English jurisdiction. Typical examples are: damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; a more generous limitation period. Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings, or from exercising its discretion against granting leave under R.S.C. Ord. 11, simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. Take, for example, discovery. We know that there is a spectrum of systems of discovery applicable in various jurisdictions, ranging from the limited discovery available in civil law countries on the continent of Europe to the very generous pre-trial oral discovery procedure applicable in the United States of America. Our procedure lies somewhere in the middle of this spectrum. No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas. In this, I recognise that we appear to be differing from the approach presently prevailing in the United States: see, e.g., the recent opinion of Judge Keenan in Re Union Carbide Corp. (1986) 634 F.Supp. 842 in the District Court for the Southern District of New York, where a stay of proceedings in New York, commenced on behalf of Indian plaintiffs against Union Carbide arising out of the tragic disaster in Bhopal, was stayed subject to, inter alia, the condition that Union Carbide was subject to discovery under the model of the United States Federal Rules of Civil Procedure after appropriate demand by the plaintiff. But in the Trendtex case [1982] A.C. 679 , this House thought it right that a stay of proceedings in this country should be granted where the appropriate forum was Switzerland, even though the plaintiffs were thereby deprived of the advantage of the more extensive English procedure of discovery of documents in a case of fraud. Then take the scale on which damages are awarded. Suppose that two parties have been involved in a road accident in a foreign country, where both were resident, and where damages are awarded on a scale substantially lower than those awarded in this country. I do not think that an English court would, in ordinary circumstances, hesitate to stay proceedings brought by one of them against the other in this country merely because he would be deprived of a higher award of damages here. But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases. For example, it would not, I think, normally be wrong to allow a plaintiff to keep the benefit of security obtained by commencing proceedings here, while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. Such a conclusion is, I understand, consistent with the manner in which the process of saisie conservatoire is applied in civil law countries; and cf.section 26 of the Civil Jurisdiction and Judgments Act 1982 , now happily in force. Again, take the example of cases concerned with time bars. Let me consider how the principle of forum non conveniens should be applied in a case in which the plaintiff has started proceedings in England where his claim was not time barred, but there is some other jurisdiction which, in the opinion of the court, is clearly more appropriate for the trial of the action, but where the plaintiff has not commenced proceedings and where his claim is now time barred. Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff's claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff's action would be time barred there. But, in my opinion, this is a case where practical justice should be done. and practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for example, by issuing a protective writ) in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country. This approach is consistent with that of Sheen J. in The Blue Wave [1982] 1 Lloyd's Rep. 151 . It is not to be forgotten that, by making its jurisdiction available to the plaintiff - even the discretionary jurisdiction under R.S.C., Ord. 11 - the courts of this country have provided the plaintiff with an opportunity to start proceedings here; accordingly, if justice demands, the court should not deprive the plaintiff of the benefit of having complied with the time bar in this country. Furthermore, as the applicable principles become more clearly established and better known, it will, I suspect, become increasingly difficult for plaintiffs to prove lack of negligence in this respect. The fact that the court has been asked to exercise its discretion under R.S.C., Ord. 11, rather than that the plaintiff has served proceedings upon the defendant in this country as of right, is, I consider, only relevant to consideration of the plaintiff's conduct in failing to save the time bar in the other relevant alternative jurisdiction. The appropriate order, where the application of the time bar in the foreign jurisdiction is dependent upon its invocation by the defendant, may well be to make it a condition of the grant of a stay, or the exercise of discretion against giving leave to serve out of the jurisdiction, that the defendant should waive the time bar in the foreign jurisdiction; this is apparently the practice in the United States of America.”
“51. The place of commission is a relevant starting point when considering the appropriate forum for a tort claim. References to a presumption are in my view unhelpful. The preferable analysis is that, viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction. But, especially in the context of an international transaction like the present, it is likely to be over-simplistic to view the place of commission in isolation or by itself, when considering where the appropriate forum for the resolution of any dispute is. The significance attaching to the place of commission may be dwarfed by other countervailing factors.”
“[25] The new defendants contend that in the Spiliada case, Lord Goff, in dealing with the question of the treatment of what had become known as a legitimate personal or juridical advantage, was in terms considering the trial of the action and not its aftermath. It is pointed out, correctly, that all the examples he gives relate to what might be described as the pre-judgment stage. I have no hesitation, though, in rejecting the submission. Litigation is not an end in itself. A plaintiff is concerned not only to obtain judgment in his favour, but to enforce it by whatever means are available to him so as actually to receive the compensation the court thought fit to award him. Advantages in the mechanics of enforcement in one jurisdiction, as opposed to another, are no less advantageous than advantages in the procedure whereby the judgment is obtained in the first place. The fact that Lord Goff did not advert to them expressly because they did not arise in the case with which he was dealing is no reason for denying legal recognition to the factually obvious.”
“ 3. The dispute between the parties relates to the way in which expert evidence is to be adduced. The claimant, in the usual English way, has asked for permission, pursuant to CPR Pt 35 , to call expert evidence in a number of relevant disciplines. The defendant insurers say that that is not appropriate since the applicable law is the law of the country in which the damage occurred and is thus French law. Under French law the court selects one (or sometimes) two medico-legal expert(s) to assist the judge, although such expert(s) may have recourse to experts in other disciplines if he/they feel it necessary and may incorporate their opinions in the report made for the court. These sub-experts are known to French lawyers as “sapiteurs”
“12. I have no doubt that Mr Weir's arguments should prevail. It cannot be the case that the Regulation envisages that the law of the place where the damage occurs should govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case. An English court is ill-equipped to receive expert evidence given in the French manner. First, our rules of disclosure will not be the same as they are in every foreign country. It would be very odd if the rules of disclosure were not matters of “evidence and procedure”; but on the assumption that they are, how do they apply to a French-style single expert report? Not only would a French expert not regard himself as bound by any English rule; neither would he be able, in any sensible way, to take advantage of the English rules if he wished to do so. 13. Second, our rules of evidence contemplate the giving of oral evidence by a procedure of examination-in-chief, cross-examination and re-examination of witnesses. Even if the author of a French-style expert report were prepared (as he would have to be) to submit to such a procedure, it would be meaningless, to the extent that his or her report incorporated material outside his or her personal expertise. 14. Third, I have little doubt that, in the reverse situation, a French court would think it unhelpful (to put it mildly) to be presented with English-style expert evidence about the consequences of an English accident to a French driver or motorcyclist, in the form of reports from experts in (say) ten disciplines presented by each party and having to choose between them without resort to its own method of dealing with expert evidence. 15. In these circumstances it is indeed inevitable that the same facts tried in different countries may result in different outcomes and I am unable to accept Mr Browne's starting point that the English court must strive to reach the same result as a French court would, let alone his finishing point that evidence must be given to the English court in the form of a French-style expert report… 18. In this extract the author distinguishes between the “basis” of assessment and the “mode” of assessment. The fact that he explains the basis of assessment as including “judicial conventions and practices which will facilitate the assessment of damages … in a manner which reflects, as closely as possible, the result that would be achieved in a court of the country whose law applies,” is not a statement that the result which would be achieved in the foreign (here, French) jurisdiction must be achieved in England which would, indeed, contradict para 3.39. Rather it is no more than the reason why it is desirable that “judicial conventions and practices” of the applicable law should apply in the court of forum, a matter to which I will have to return. That is further shown by the author's view (with which I would respectfully agree) that proof of the underlying facts “remain[s] a matter for the law of the forum”. 19. This is a matter of some importance because experts in personal injury cases will, not unusually, give evidence of matters of fact as well as of opinion. It will, for example, be necessary for the court to receive evidence *4271 of what care or what accommodation the claimant needs. This will be partly a matter of fact relating to the claimant's current condition and current accommodation and partly a matter of opinion relating to the current and future needs of the claimant with his current condition and his current accommodation. It is convenient for such evidence to be given in a single care report or a single accommodation report, as the case may be. If the method of proving the relevant facts is for the court of the forum, it must follow that the method of proving any relevant opinion must be for the court of the forum also.”
“24. I prefer the view of Professor Dickinson and Dicey to that of the authors of Cheshire . It seems to me that in the context of a Regulation (or Convention) intended to have international effect, a narrow view of “law” is inappropriate. If there are guidelines, even if they can be disapplied in an appropriate case, judges will tend to follow them. No doubt one can call this “soft law” rather than “hard law” but it is law nevertheless. Any foreign judge having to apply English law on the assessment of damages would find the Judicial College guidelines helpful as a starting point. If, therefore, French law had the equivalent of these guidelines, I would hold that the master could permit evidence of them to be given by an English court.”
“26… It is unnecessary to set out Monsieur Dintilhac's list of personal damages “of the direct victim” in full, (they are in fact set out in Annex 1 to the report of the defendants' expert, Monsieur Pierre Jung) but, as stated by M Charpentier, it is divided into 12 pecuniary losses (patrimonial) and 13 non-pecuniary (non-patrimonial) losses and that division is then further sub-divided into temporary (before consolidation) losses and permanent (after consolidation) losses. There is no attempt to give a figure or even a method of calculating the various losses identified. 27. At a later stage of his report, however, M Charpentier isolates, by way of example, a particular loss (permanent aesthetic loss) and in respect of that loss gives figures normally adopted by the Paris Court of Appeal in 2011/2012 on a scale of one to seven with a final category of “wholly exceptional” being€80,000 and over. This is just one example applicable to one head of loss out of M Dintilhac's 13 separate heads of non-pecuniary loss. 28. To the extent that these are figures normally adopted by the Paris Court of Appeal for the various heads of non-pecuniary losses in M Dintilhac's list, I can see that the combination of those heads and such figures could well amount to the equivalent of the Judicial College guidelines. I therefore consider that it would be appropriate for the master to permit either M Charpentier or M Jung (or, if necessary, both) to place evidence of such heads and figures before the English court. It seems to be agreed that French judges have a discretion to depart from these guidelines in an appropriate case and no doubt the English judge trying quantum will feel he has the same discretion. But he should, at least, be informed of what a French judge would regard as an appropriate starting point. 29. In the light of recital (33) to the Regulation, I do not consider that the same evidence is necessary or called for in respect of the pecuniary losses suffered by the claimant.”
“43. Secondly, it is unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact. The courts of each European jurisdiction have developed evidential practices with which both their judges and practitioners are comfortable. Germany, for example, has developed the “Relationsmethode”, in which the judge exercises a high degree of control over the evidence to be received as the case develops. The Netherlands have a different procedure, although there too the judge takes a dominant role in the questioning of any oral witnesses. France has the procedures described by the experts in this case. If an Englishman is injured in one of those jurisdictions and sues there, it is inconceivable that the local courts will meekly adopt English evidential practices. There is no way that those courts would countenance several days of oral evidence and extensive cross-examination of experts in order to assess quantum of damages. The judges and practitioners do not have the requisite experience to adopt our evidential practices. We do not have the requisite experience to adopt theirs. 44. The costs rules of each jurisdiction are linked to the evidential practices. Germany, for example, has a scheme of fixed costs for all categories of litigation. This is set out in (a) the Court Fees Act and (b) the Lawyers' Fees Act. A scale of fees is prescribed according to the type of case, the sum in issue and the stage at which it is resolved. For example, in a commercial claim for€30m , the costs payable by the losing party at trial are€558,510 ·50. This statutory costs regime would become unworkable if the German courts were suddenly required to adopt English evidential practices. Conclusion 45. In the present case the court should follow English evidential practices. Accordingly the court should follow its usual practice in relation to receiving expert evidence concerning the extent of the claimant's injuries, the amount of the claimant's financial losses (in so far as such losses are recoverable under French law) and similar matters. 46. In the result, therefore, the court will establish the facts using English evidential practices. It will then assess damages in accordance with French law (“law” being broadly construed, as set out above).”
“48. Any question as to (i) the extent to which, and the form and manner in which, expert evidence may be given, (ii) how many experts may give evidence, and (iii) whether such evidence shall be the subject of cross-examination is, almost self-evidently, an issue of evidence and procedure, to which, by virtue of article 1(3), Parliament and Council Regulation (EC) No 864/2007 does not apply. What is less clear is what evidence the English court should permit in a case where damages are to be assessed under French, or any other foreign, law. 49. I agree with Longmore and Jackson LJJ that the evidence should not be confined to rules which dictate a result or to black letter rules; but should extend to judicial conventions and practices such as tariffs, guidelines or formulae used in practice by foreign judges in the calculation of damages, as suggested by Professor Dickinson. 50. In England and Wales damages in a personal injury case would be assessed by reference to: (a) common law rules and principles as to what measure of damages is applicable and the permissible heads of recoverable loss; (b) statutory provisions; (c) over-arching decisions of the courts, eg Simmons v Castle (Practice Note)[2013] 1 WLR 1239 (providing for a 10% increase in general damages from1 April 2013 ); (d) guidance from decided cases on the appropriate level of damages for different injuries; and (e) published guidelines such as those of the Judicial College or tables such as the Ogden tables. 51. French law as to the assessment of damages should not be treated as any more restricted than as set out in the previous paragraph in respect of English law. “Law” should be interpreted so as to cover whatever rules, principles, practices and guidance a French court would adopt in making its assessment. For that purpose it is necessary for the English court to understand what is the reach of their application. 52. The problem is illustrated by the Dintilhac Headings (“the headings”). They are, according to the evidence of Monsieur Charpentier, without binding force but used in practice by lawyers, magistrates and insurers. Current case law makes use of the list. The evidence of Monsieur Jung for the defendants is that they are generally followed by all courts and Courts of Appeal. 53. A possible approach is to say that because the headings have no binding force an English judge applying French law is entitled to ignore them and award damages by adopting an entirely English approach to the assessment of the various heads of damage claimed which, as is common ground, are all heads recoverable in principle under French law. This is, in my view, too narrow an approach. In assessing damages in accordance with French law the English judge should endeavour to decide how, in practice, a French judge would assess damages. If that is, as it appears to be, by reference to the headings, the English court should adopt the same approach, although, to the extent that French judges have a discretion to adopt a different approach, an English judge will be similarly entitled. For that purpose it would be helpful to know the circumstances in which they would or might consider it appropriate to do so in order to see whether they are applicable to the present case. 54. The Paris Court of Appeal is said normally to adopt guidelines on quantum for loss under at least one of the headings and it may well be that it does so for all the others. Evidence of the figures normally adopted by the Paris Court of Appeal in relation to the headings is something of which evidence ought to be admitted. Such normally adopted figures: (i) do not appear to me to be different in kind to the guidelines published by the Judicial College which, themselves, “distil the conventional wisdom contained in the reported cases [and] supplement it from the collective experience of the working party” (see the foreword to the 1st edition (1992) by Lord Donaldson of Lymington MR); and (ii) are an indication of what, applying French law, the Court of Appeal regards as appropriate figures. The judge assessing non-pecuniary loss should have regard to any prevailing tariffs to the same extent as a French judge would do so. That renders it desirable to know in what circumstances the Paris Court of Appeal would or might not adopt such figures; and the circumstances in which that court, or judges at first instance, depart therefrom.”