Maharani of Baroda v. Wildenstein

Having jurisdiction and exercising it are different questions, and the second is discretionary. This case fixes the threshold for a stay, and it does so by refusing one on facts where the balance of convenience was plainly against the forum.

The plaintiff and the defendant art dealer both lived in France. She bought a painting in Paris as the work of Boucher. English experts later doubted the attribution. She sued in England, serving the writ on the defendant during a short visit.

A stay was refused. A mere balance of convenience is not a sufficient ground for depriving the plaintiff of her right of action in an English court, and the defendant could show neither injustice to himself nor the absence of injustice to her — indeed French law might not have admitted the English expert evidence, and the French proceedings would have been slower.

Step one — state the two conditions for a stay. The action will be stayed only if (1) continuance of the plaintiff's action would work an injustice because it would be oppressive or vexatious to the defendant, or an abuse of the process of the court in some other way, and (2) a stay would not cause injustice to the plaintiff. Both limbs must be satisfied.

Step two — apply them. Inconvenience to a French defendant sued in England is not oppression. And a stay would have exposed the plaintiff to a slower forum that might have excluded her principal evidence.

Step three — note the structural reason the doctrine exists in England. English jurisdiction rests on service: once served, the court may try the suit even if the subject matter has no connection with England, and conversely, however close the connection, it cannot try the suit if process cannot be served. A rule that over-includes needs a discretionary corrective, and forum non conveniens is it.

It opens: Explain forum non conveniens and the circumstances in which a court will decline jurisdiction.

Give the doctrine's own limits, which this course records: there is no dismissal where no other forum could hear the case, or where the other forum would award the plaintiff nothing even on success, or where the alternative forum's judicial system is grossly inadequate.

Contrast the position for a jurisdiction clause, where the presumption runs the other way: the court will grant a stay unless it is shown just and proper to allow the action to continue, and the burden lies on the plaintiff. The recorded exception is Carvatho v. Hullblyth Angola.

Contrast India, which is the point most often got wrong. Section 10 of the Code is a domestic provision, and its Explanation says the pendency of a suit in a foreign court does not preclude an Indian court from trying a suit on the same cause of action; it does not empower an Indian court to stay. Where Indian courts have stayed for pending foreign proceedings they have acted under the inherent jurisdiction preserved by s. 151, guided by the English principles and exercising the power with extreme caution.

It does not decide that the English court was the natural forum; it decides that the defendant had not met the threshold for taking the plaintiff out of it.