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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Lubbe and Others and Cape Plc. and Related Appeals [2000] UKHL 41 (20th July, 2000) URL: https://www.bailii.org/uk/cases/UKHL/2000/41.html Cite as: [2000] 4 All ER 268, [2000] WLR 1545, [2000] 1 WLR 1545, [2000] UKHL 41 |
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Lubbe
and Others and
Cape
Plc. and Related Appeals [2000] UKHL 41 (20th July, 2000)
Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Hope of Craighead Lord Hobhouse of Woodborough
SCHALK WILLEM BURGER
LUBBE
(SUING AS ADMINISTRATOR OF THE ESTATE OF RACHEL JACOBA
LUBBE)
AND 4 OTHERS
(APPELLANTS)
AND
CAPE
PLC
(RESPONDENT)
AND RELATED APPEALS
ON 20 JULY 2000
LORD BINGHAM OF CORNHILL
My Lords,
varying,
but sometimes lengthy, periods of time, ending for claim purposes in 1979. One of the plaintiffs (Mrs. Pauline Nel, suing as personal representative of her deceased husband) is a British citizen resident in England. All the others are South African citizens resident in South Africa. Most of the plaintiffs are black and of modest means. Instructions to sue have been given to English solicitors by more than 800 additional claimants.
Cape
Asbestos Company Limited, principally to mine and process asbestos and sell asbestos-related products. From shortly after 1893 until 1948 it operated a blue asbestos (or crocidolite) mine at Koegas and a mill at Prieska, both in the Northern
Cape
Province. In 1925 the defendant acquired the shares in two companies, both incorporated in 1916: these were Egnep Limited and Amosa Limited, which operated a brown asbestos mine and mill at Penge in Northern Transvaal. For practical purposes the head office of these companies was in
Cape
Town. In 1940 a factory was opened at Benoni, near Johannesburg, to manufacture asbestos products. It was owned by a wholly-owned subsidiary of the defendant.
Cape
Blue Mines (Pty.) Limited. The shares in
Cape
Blue Mines, Egnep and Amosa were transferred to a newly-formed South African holding company,
Cape
Asbestos South Africa (Pty.) Limited (CASAP). The offices of all these companies were in Johannesburg. All the shares in CASAP were owned by the defendant. In 1979 CASAP sold its shares in
Cape
Blue Mines, Egnep and Amosa to an unrelated third party buyer, which shortly thereafter sold them on. The defendant continued to hold an interest in the South African companies which operated out of the factory at Benoni until 1989 (although the factory had been closed earlier). Since then the defendant has had no presence anywhere in South Africa, and when the first of the writs in the current proceedings was served the defendant had no assets in South Africa.
Cape
Province. But the central thrust of the claims made by each of the plaintiffs is not against the defendant as the employer of that plaintiff or as the occupier of the factory where that plaintiff worked, or as the immediate source of the contamination in the area where that plaintiff lived. Rather, the claim is made against the defendant as a parent company which, knowing (so it is said) that exposure to asbestos was gravely injurious to health, failed to take proper steps to ensure that proper working practices were followed and proper safety precautions observed throughout the group. In this way, it is alleged, the defendant breached a duty of care which it owed to those working for its subsidiaries or living in the area of their operations (with the result that the plaintiffs thereby suffered personal injury and loss). Some 360 claims are made by personal representatives of deceased
victims.
As reformulated during the first Court of Appeal hearing the main issue raised by the plaintiffs' claim was put in this way:
vicinity
of its factory or other business premises, owes a duty of care to those workers and/or other persons in relation to the control which it exercises over and the advice which it gives to the subsidiary company?"
Lubbe
and four other plaintiffs on 14 February 1997 (and when she died the action was continued by Mr.
Lubbe
as her personal representative). The defendant promptly applied to stay the proceedings on the ground of forum non conveniens. This application came before Mr. Michel Kallipetis Q.C. sitting as a deputy judge of the Queen's Bench Division, who acceded to it. He sought to apply the principles authoritatively laid down by this House in Spiliada Maritime Corporation
v.
Cansulex Ltd. [1987] AC 460, and for reasons given in a lengthy and careful judgment dated 12 January 1998 he concluded that everything pointed towards South Africa as the natural forum for the trial of the action and that there was no pressing circumstance which would justify him in deciding that the interests of justice required a trial in this country instead of the natural forum in South Africa.
Lubbe
action, on grounds of forum non conveniens and abuse of process, and directions were given to consolidate the
various
proceedings (without prejudice to the position of the
Lubbe
plaintiffs) into a group action.
The judge accordingly ordered a stay of proceedings. He considered an argument advanced by the defendant that the proceedings were an abuse. The basis of this argument was that the solicitors representing the
Lubbe
plaintiffs had misled the first Court of Appeal and the House of Lords by failing to disclose their intention, if jurisdiction in England was established in the
Lubbe
case, to launch a multi-plaintiff group action, and also that the bringing of a group action was oppressive and an abuse. The judge expressed criticism of the solicitors representing the
Lubbe
plaintiffs but stopped short of finding abuse of the process (page 154). The judge also considered an argument, advanced by the defendant, suggesting that there were public interest grounds for concluding that the proceedings should be tried in South Africa: the judge reached his decision independently of this argument (page 154), but considered that it reinforced his decision. He gave both sides leave to appeal.
Lubbe
action and to reach a different conclusion (page 165). He dismissed the appeal.
Lubbe
plaintiffs but agreed with Pill L.J. that what had happened did not mean that there was an abuse of process such that the group action and the
Lubbe
action should be stayed (page 167). Tuckey L.J. also agreed: he deprecated the acrimony caused by the
Lubbe
solicitors' failure to inform the Court of Appeal and the House of Lords of the plan to launch a group action (page 168) and attached less weight than the first Court of Appeal had done to the fact that the South African forum had only become available because of the defendant's undertaking to submit (page 168). The second Court of Appeal refused leave to appeal, but leave was given by your Lordships to the plaintiffs on 7 February 2000. On 30 March 2000 your Lordships also
vacated
the earlier order refusing leave to appeal in the
Lubbe
action and gave leave to the defendant to challenge the decision of the first Court of Appeal.
Vincenzina
Gisondi and three other plaintiffs against the defendant making claims on grounds similar to those relied on by the plaintiffs in the proceedings before the House. The significant difference is that these plaintiffs complain of exposure to asbestos and asbestos products not in South Africa but in Italy. Thus the plaintiffs are resident in a state which is a party to the Brussels Convention and sue a defendant domiciled in England, another contracting state. It has not been suggested that the English court could under the Convention decline jurisdiction in favour of an Italian forum, and no application for a stay has been made by the defendant in that case. There appears to be no jurisdictional objection to the prosecution of that action here, and no application has been made to strike out the claim as disclosing no cause of action.
The applicable principles
v.
Robinow (1892) 19 R 665 at 668 where he said:
Thus it is the interest of all the parties, not those of the plaintiff only or the defendant only, and the ends of justice as judged by the court on all the facts of the case before it, which must control the decision of the court. In Spiliada it was stated (at page 476):
v.
R.T.Z. Corporation Plc. [1998] AC 854 at 871). 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, that is likely to be the end of the matter. But if the court concludes at that stage that there is some other available forum which prima facie is more appropriate for the trial of the action it will ordinarily grant a stay unless the plaintiff can show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the English forum (Spiliada, page 478; Connelly, page 872) but on whether the plaintiff will obtain justice in the foreign jurisdiction. The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum (Spiliada, page 482; Connelly, page 872). It is only if the plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused (Spiliada, page 482; Connelly, page 873).
The present cases
visits
overseas and correspondence.
Lubbe
case, which was alone before him, Mr. Kallipetis considered that the convenience of trying the personal injury issues in South Africa outweighed any benefit there might be in trying the parent company responsibility issue here. That was in my opinion a tenable though not an inevitable conclusion on the case as then presented. The two reasons given by the first Court of Appeal for disturbing that exercise of judgment are not to my mind convincing. Mr. Kallipetis' judgment does not suggest that he overlooked the way in which the plaintiffs put their case, although he did not express it
very
clearly (perhaps because the pleading was not
very
clear). The first Court of Appeal thought it undermined the defendant's application for a stay that the South African forum only became available as a result of the defendant's undertaking to submit, but for reasons given by my noble and learned friend Lord Hope of Craighead (with which I fully agree) this was not a factor which should have weighed in the balance either way. I would not accept the argument advanced by the plaintiffs on this point. I question whether the first Court of Appeal was justified in disturbing Mr. Kallipetis' conclusion and substituting its own. But its own assessment of the balance between the parent company responsibility issue and the personal injury issues is not shown to be unreasonable or wrong. On the case as then presented there was room for the
view
that South Africa was not shown to be a clearly more appropriate forum. This is a field in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge. The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum.
very
much what it had always been, the personal injury issues assumed
very
much greater significance. To investigate, prepare and resolve these issues, in relation to each of the plaintiffs, would plainly involve a careful, detailed and cumbersome factual inquiry and, at least potentially, a
very
large body of expert evidence. In this changed situation Buckley J., applying the first stage of the Spiliada test, regarded South Africa as clearly the more appropriate forum for trial of the group action and the second Court of Appeal agreed. Both courts were in my
view
plainly correct. The enhanced significance of the personal injury issues tipped the balance
very
clearly in favour of South Africa at the first stage of the Spiliada exercise, and no effective criticism has been made of that conclusion. The brunt of the plaintiffs' argument on these appeals to the House has been directed not against the decisions of Buckley J. and the second Court of Appeal on the first stage of the Spiliada test but against their conclusion that the plaintiffs had not shown that substantial justice would not be done in the more appropriate South African forum.
Funding
very
extensive and cannot conveniently be summarised. The following conclusions are in my opinion to be drawn from it:
1) The proceedings as now constituted can only be handled efficiently, cost-effectively and expeditiously on a group basis. It is impossible at this stage to predict with accuracy what procedural directions might on that basis be given in future (although the directions could only relate to the conduct of proceedings in England). Obvious possibilities include the trial of a preliminary issue on the parent company responsibility question and the trial of selected lead cases to test the outcome in different factual situations. It would be
very
highly desirable, if possible, to avoid determination of these claims on a plaintiff by plaintiff basis.
2) The plaintiffs' claims raise a serious legal issue concerning the duty of the defendant as a parent company, and it would be necessary to decide whether that duty was governed by English or South African law. If a duty were held to exist, there would be a serious factual issue whether the defendant was in breach of it. If the plaintiffs were successful on these questions, the personal injury issues would have, even in the context of a group action, to be investigated, prepared and quantified. This would be a heavy and difficult task. It could only be done by, or under the supervision of, professional lawyers. It would call for high quality expert advice and evidence, certainly on medical and industrial issues,
very
possibly on other issues also. I see no reason to question the judgment of a South African attorney instructed by the defendant who swore:
It is significant that Professor Unterhalter, an independent expert approached by the defendant, observed:
venture
no opinion as to the length and magnitude of this litigation, save to say that it is likely to be drawn out and complex, and would almost certainly come before the Supreme Court of Appeal in due course."3) A possibility must exist that the proceedings may culminate in settlement. The plaintiffs confidently predict such an outcome if they succeed on the parent company responsibility issue. But the defendant has given no indication that the claims will not be fully contested. In the Spiliada case Staughton J. thought it right to decide the stay application on the assumption that there would be a trial, and it would seem to me wrong in principle to reject a submission that justice will not be done in a foreign forum on the basis of a speculative assumption that, if a stay is granted, proceedings in the foreign forum will culminate in a just settlement without the need for a trial.
4) In a letter dated 20 September 1999 to Leigh, Day and Company representing some of the plaintiffs, the Legal Aid Board of South Africa wrote:
5) The South African Contingency Fees Act (No. 66 of 1997) sanctioned a new regime similar (although not identical) to that governing conditional fees in this country. It enables counsel and attorneys to undertake work for plaintiffs on the basis that if the claim is successful they will receive a fee in excess of that ordinarily chargeable, and that they receive nothing if the claim fails. This regime does not apply to the fees of expert witnesses, who may not be engaged on the basis that they are paid only if the plaintiff by whom they are called is successful. The defendant referred to an affidavit sworn by
very
experienced South African counsel who deposed:
view,
if a firm of attorneys with a reasonable infra-structure is of the
view
that the claims of the present Plaintiffs are good, this would mean that the firm would be able to earn
very
substantial sums of money by way of fees. At the same time, one should not lose sight of the fact that this case is likely to have a
very
high profile and that the Plaintiffs' attorney/s would be accorded a great deal of positive publicity in the media. This would be a further inducement to take on a case of this nature. There is every reason to believe that there would be no shortage of firms of attorneys who would be desirous of taking on such a case if they believed that it had good prospects of success.
very
general assertion of belief by a member of the Bar was flatly contradicted by a number of other equally distinguished counsel who provided sworn statements to the plaintiffs, and counsel for the defendant indicated that he placed no reliance on it. More significantly, it received no support from any practising attorney, and it would be attorneys who would be required, if these proceedings were undertaken for the plaintiffs on a contingency fee basis, to finance the investigation of the claims, the obtaining and calling of evidence and the conduct of the trial during a period which would inevitably last for months and,
very
much more probably, years. The clear, strong and unchallenged
view
of the attorneys who provided statements to the plaintiffs was that no firm of South African attorneys with expertise in this field had the means or would undertake the risk of conducting these proceedings on a contingency fee basis. The defendant suggested that financial support and professional assistance might be given to the plaintiffs by the Legal Resources Centre, but this suggestion was authoritatively contradicted. In a recent affidavit the possibility was raised that assistance might be forthcoming from the European Union Foundation for Human Rights in South Africa, but the evidence did not support the possibility of assistance on the scale necessary to fund this litigation.
6) If these proceedings were stayed in favour of the more appropriate forum in South Africa the probability is that the plaintiffs would have no means of obtaining the professional representation and the expert evidence which would be essential if these claims were to be justly decided. This would amount to a denial of justice. In the special and unusual circumstances of these proceedings, lack of the means, in South Africa, to prosecute these claims to a conclusion provides a compelling ground, at the second stage of the Spiliada test, for refusing to stay the proceedings here.
7) The conclusions on the funding issue reached by the second Court of Appeal did not in my opinion take account of the evidence, which did not permit the finding which the court made.
vast
amount of litigation by
victims
of asbestos dust without resort to group actions. Whether by a form of group action or otherwise, I have no doubt that the High Court of South Africa will be able to devise and adopt suitable procedures for the efficient despatch of business such as this. None of the evidence or submissions on behalf of the plaintiffs suggests any significant obstacle to that efficient despatch by the Court of cases before it."
view
act as a further disincentive to any person or body considering whether or not to finance the proceedings.
Third Parties
v.
Brigham & Cowan (Hull) Ltd., unreported, 6 April 2000) for the proposition that a defendant is only liable for such proportion of a plaintiff's damage as he is shown to have caused; and by formally undertaking, in asbestos (but not mesothelioma) cases, to limit their claim to compensation for loss and damage for asbestos-related disease to such sum as would reflect the proportion of a plaintiff's total asbestos exposure as was shown to be the defendant's responsibility. The courts below were in my judgment right to treat the third party consideration as one strengthening the appropriateness of the South African forum, but I am persuaded by the plaintiffs' response that the refusal of a stay will not expose the defendant to a significant risk of prejudice so long as any new claimants are admitted to the group only upon their binding themselves by the undertaking of the present plaintiffs.
Article 6 of the European Convention on Human Rights
violate
the plaintiffs' rights guaranteed by Article 6 of the European Convention since it would, because of the lack of funding and legal representation in South Africa, deny them a fair trial on terms of litigious equality with the defendant. For reasons already given, I have concluded that a stay would lead to a denial of justice to the plaintiffs. Since, as Spiliada makes clear, a stay will not be granted where it is established by cogent evidence that the plaintiff will not obtain justice in the foreign forum, I cannot conceive that the court would grant a stay in any case where adequate funding and legal representation of the plaintiff were judged to be necessary to the doing of justice and these were clearly shown to be unavailable in the foreign forum although available here. I do not think Article 6 supports any conclusion which is not already reached on application of Spiliada principles. I cannot, however, accept the
view
of the second Court of Appeal that it would be right to decline jurisdiction in favour of South Africa even if legal representation were not available there.
Public Interest
victims
live in that place, that the relevant evidence is to be found there and that site inspections are most conveniently and inexpensively carried out there will provide factors connecting any ensuing litigation with the court exercising jurisdiction in that place. These are matters of which the Spiliada test takes full account. It is important that the focus should remain on the principle so clearly stated by Lord Kinnear: in applying this principle questions of judicial amour propre and political interest or responsibility have no part to play.
Article 2 of the Brussels Convention
Conclusion
LORD STEYN
My Lords,
LORD HOFFMANN
My Lords,
LORD HOPE OF CRAIGHEAD
My Lords,
Available forum
It is clear that the decision of the first Court of Appeal [1998] CLC 1559 to refuse a stay was much influenced by the
view
which they formed about the defendant's submission that the South African courts were available to the plaintiffs because it had offered during the hearing before the judge to submit to the jurisdiction of those courts.
v.
Cansulex Ltd. [1987] AC 460. The implication was that these were factors to be weighed in the balance against the defendant in the decision whether or not the action should be stayed.
v.
R.T.Z. Corporation Plc. [1998] AC 854, and I think that counsel for the defendant was in error when he submitted to the Court of Appeal in the present case that it could have been: [1998] CLC 1559, 1565F. In Connelly's case the two defendant companies, like the defendant in this case, were English companies which had their registered offices in England. But the basis upon which they were being sued in England was that they were responsible, either directly in fact or
vicariously
in law, for defects in the health and safety arrangements at the mine which was operated in Namibia by a subsidiary of the first defendant by whom the plaintiff was employed while he was working there: see the issues which were identified in the Court of Appeal by Waite L.J.: [1996] Q.B. 361, 364B-D. The subsidiary, against which the plaintiff had previously directed his claim at the suggestion of the first defendant, was present and available to be sued in Namibia. It was common ground that Namibia was a forum that was available to the plaintiff for his claim of damages. No doubt this was on the
view
that for all practical purposes no distinction was to be drawn between the first defendant, which as my noble and learned friend Lord Hoffmann observed at [1998] AC 854, 876G was a multinational company present almost everywhere, and its subsidiary in Namibia.
validity
of the defendant's undertakings is therefore critical to its argument that the South African courts are available to the claimants as a forum in which their actions should be tried.
v.
Macaulay (1866) 4 M. 583 an objection was taken to the jurisdiction of the Scottish courts in an action to enforce a contract entered into between two Americans on the plea of forum non competens. This was on the grounds that Texas where the agreement was entered into was the only proper forum for the dispute and that the Scottish court was an inconvenient and improper forum. Lord Justice- Clerk Inglis, having concluded that the
view
that the courts of Texas would have jurisdiction was plainly untenable, said at p. 592:
At p. 594 Lord Cowan said:
In Société du Gaz de Paris
v.
Société Anonyme de Navigation "Les Armateurs Français" 1925 S.C. 332, 347 Lord Justice-Clerk Alness said that the result of the cases was that it must be plain that "another forum is open to the parties". His analysis of the law was approved by Lord Dunedin in your Lordships' House: 1926 SC (HL) 13, 18. There is no indication here or in any of the other Scottish cases that this matter ought to be approached on any other basis than that this is a requirement that must be satisfied in a practical manner when the question of forum non conveniens is being considered by the court.
v.
Macaulay the defender did not offer an undertaking to submit to the jurisdiction of the Texas courts. But in Tulloch
v.
Williams (1846) 8 D. 657 two actions had been raised against the defender when he was on a
visit
to Scotland relating to his conduct while acting as the pursuer's commissioner and attorney in Jamaica. He lodged with his defences in each action a minute stating that he was ready and willing to answer in the courts of Jamaica to any writ or action that the pursuer might bring against him with reference to that subject matter. The Lord Ordinary said that he was not aware of any authority for taking the course desired by the defender, which was to decline to proceed with the case in the meantime leaving it to the pursuer to institute proceedings against the defender in the courts of Jamaica. In the absence of such authority he repelled the plea. But he invited the pursuer to consider the defender's offer as providing the most satisfactory and least expensive way of having justice administered between them, saying that to go on with the litigation in Scotland could not fail to be productive of much delay and additional expense. In the Inner House the process was sisted for three months in the light of these observations to allow the pursuer an opportunity to bring an action in the proper court in Jamaica. Lord President Boyle explained at p. 659 that it was a question of convenience whether the case should go on in Jamaica or whether it should proceed in Scotland upon evidence of the law and custom of Jamaica.
v.
Williams that the fact that the defender did not offer to submit to the jurisdiction of the courts of Jamaica until he lodged his defences presented any difficulty, either on the ground that the offer came too late or on the ground that he ought not to be allowed to choose the jurisdiction in which he was to be sued. His undertaking was seen as the obvious solution to the difficulty that, although the most expedient course in the interests of both parties was for the case to be dealt with not in Scotland but in Jamaica, the defender was not otherwise subject to the jurisdiction of the Jamaican courts.
v.
Robinow (1892) 19 R 665 the defender was sued in Scotland on the ground that he had been resident there for more than forty days. He maintained that he was only a temporary
visitor
to Scotland, that he was domiciled in South Africa, that he intended to return to his business in that country and that the courts of that country were the proper forum for determining the matter in dispute as they related to transactions between the parties when they were both in South Africa. His plea that the Scottish courts should decline jurisdiction on the ground of forum non conveniens was repelled. Lord Kinnear, who delivered the leading judgment, said that he was not satisfied that it had been shown that there was another court in which the action ought to be tried as being more convenient for all the parties and more suitable for the ends of justice. In regard to the question whether the courts of South Africa were available, he noted that the defender had not offered the same undertaking as was offered in Tulloch
v.
Williams. All that he had said was that he intended to go to South Africa, as to which Lord Kinnear observed at p. 669:
v.
Williams at p. 669 as a
very
exceptional case and indicated that it ought not to be followed. But this was not because he thought that it was wrong for the court to proceed on the defender's undertaking to submit to the jurisdiction of the other court which he offered after the action had been raised. His criticism of the decision in Tulloch's case was that the court ought not to have sisted the action for a short period to await events, but that it ought to have determined the matter either one way or the other there and then. This was on the ground that, as he put it at p. 669:
v.
Armateurs Français, 1925 S.C. 332, 347, it does not do so from the point of
view
of the defender only. The only purpose of the undertaking is to satisfy the requirement that the other forum is available. The ground on which the jurisdiction of the courts in the other forum is available to be exercised is of no importance either one way or the other in the application to the case of the Spiliada principles.
Public Interest
In my opinion the principles on which the doctrine of forum non conveniens rest leave no room for considerations of public interest or public policy which cannot be related to the private interests of any the parties or the ends of justice in the case which is before the court.
v.
Armateurs Français, 1925 S.C. 332, 361, where jurisdiction was established over the defender by an arrestment to found jurisdiction, Lord Anderson rejected the extreme argument that that case ought not to be litigated in Scotland at all as it was an action between two foreigners. He said:
In the House of Lords, 1926 SC (HL) 13, 21 Lord Sumner was alluding to the same point when he said:
v.
Rockware Glass Ltd. [1978] A.C. 795, 822D Lord Salmon said that he did not think that matters of general policy should play any part in deciding issues of this kind, and Lord Keith of Kinkel made an observation to the same effect at p. 833D.
v.
Robinow (1892) 19 R 665, 668, "for the interests of all the parties and for the ends of justice", the jurisdiction must be exercised - however desirable it may be on grounds of public interest or public policy that the litigation should be conducted elsewhere and not in the English courts. On the other hand, if the interests of all parties and the ends of justice require that the action in this country should be stayed, a stay ought to be granted however desirable it may be on grounds of public interest or public policy that the action should be tried here.
v.
Reyno (1981) 454 U.S. 235 . I respectfully agree with Deane J.'s observation in Oceanic Sun Line Special Shipping Company Inc.
v. Fay [1988] 165 CLR 197, 255 that the court is not equipped to conduct the kind of inquiry and assessment of the international as well as the domestic implications that would be needed if it were to follow that approach. However tempting it may be to give effect to concerns about the expense and inconvenience to the administration of justice of litigating actions such as these in this country on the one hand or in South Africa on the other, the argument must be resolved upon an examination of their effect upon the interests of the parties who are before the court and securing the ends of justice in their case. I would hold that considerations of policy which cannot be dealt with in this way should be left out of account in the application to the case of the Spiliada principles.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,