MR GEOFFREY BRICE QC: This case arises out of the crash of an A.
scheduled international flight AFL 593 on Mar 22, 1994 near to the town
of Mezhdurechensk, Siberia, Russian Federation, while en route from
Moscow to Hong Kong. All 63 passengers and all 12 crew on board died.
The circumstances alleged by the plaintiffs leading to the accident are
startling. In brief, a study of the cockpit voice recorder revealed that
one of the pilots, Second Captain K., had first allowed his 13 year-old
daughter, Yana, to take the controls of the aircraft and then his 15 year-
old son, Eldar; and it was while Eldar was at the controls that a partial
disconnection of the automatic pilot occurred (of the aileron control
function) which went unnoticed by Captain K. and the co-pilot and which
led to a veer to starboard and a fatal dive from which neither Captain K.
-- who eventually regained his seat from his son -- nor Co-Pilot P. was
able to recover. The air accident investigators' report (relied upon by
the plaintiffs) identified eight main causes of the accident. In particular
these included: (a) the fact that Captain K. had allowed his unqualified 15
year-old son to handle the controls of the aircraft and carry out unusual
manoeuvres; and (b) the absence of any alarm or system fitted by the
manufacturers of the airframe, Ai. Industrie, to the aircraft to warn the
pilots of disconnection of the autopilot.
There was placed before the Court affidavit evidence from each party
(with numerous exhibits). The plaintiffs relied upon affidavits from Mr JM
Toms (a solicitor in Sinclair Roche & Temperley, the plaintiffs' solicitors)
who cited the advice he had received from a French lawyer M Martin-
Chico. The defendants relied upon affidavits from Mr NJD Wright (a
partner of Beaumont & Son, the defendants' solicitors) who cited the
advice he had received from a French lawyer, M Douche.
The carrier named as the defendant in the action was A. R. In. Airlines
(hereinafter called "A."). The manufacturer of the aircraft was the French
corporation Ai. Industrie GIE ("Ai.") having its seat in Toulouse, France.
Proceedings were issued by claimants (including the present plaintiffs)
and said to have been served in France in March, 1996 against both
Ai. and A. (a Russian corporation but with an office at …, 75008 Paris).
More particularly, a first set of proceedings was issued on Mar 19, 1996
by 44 claimants against (1) Ai. Industrie and (2) "A.". A second set of
proceedings was issued on Mar 22, 1996 with the same 44 claimants plus
five more making 49 in total and naming the same two defendants but
adding as defendants (3) A. R. I. A. and (4) R. A. (RAL). All claimants
are relatives and dependants of passengers who had died. In addition,
in order to preserve time against A. in England, the writ in the present
proceedings was issued on Mar 21, 1996 by 22 relatives and dependants
of five of those who died. This writ was, however, not served on A. until
Nov 4, 1996 ie long after the commencement of hearings (May 15, 1996)
in the French Court in Toulouse. Of the 22 plaintiffs named in the writ,
all are also claimants in the French proceedings. However plaintiffs (1),
(2), (3) and (13) named on the English writ have recently discontinued;
thus, the present application is brought by the remaining 18 plaintiffs.
The present proceedings in the English High Court have been commenced
simply as a precautionary measure should the case in the French Court
fail for want of jurisdiction. Thus if the French Court finally determines
that there is no jurisdiction to entertain the claims, the proceedings in
England will continue. If however the French Court finally determines that
it has jurisdiction, then presumably the English plaintiffs will discontinue
their proceedings here.
As to the litigation worldwide, in par 5 of his second affidavit Mr Wright
deposes that of the 63 passengers who died claims were made in this
Court in respect of five of the deaths; but this has been reduced to four
by the aforementioned discontinuance. The proceedings in France relate
to 14 of the passengers (including the aforementioned five passengers)
and proceedings in other jurisdictions have been commenced in respect
of six of those passengers. Proceedings in respect of five passengers
have been commenced in France only. Proceedings have also been issued
against A. in respect of 11 passengers in Moscow; and 12 passengers in
Hong Kong (of which four are not parties to the French proceedings).
In the French proceedings A. are challenging the jurisdiction of the French
Court on the grounds that all claims are required by art 28 of the Warsaw
Convention to be brought either in Russia or England or Hong Kong (ie
respectively (a) where the carrier is ordinarily resident or has his principal
place of business or (b) where the carrier has an establishment by
which the contract for carriage was made or (c) at the place of intended
destination): see below. However the claimants in the French proceedings
are resisting A.'s challenge to jurisdiction. The plaintiffs on the one hand
naturally wish to continue to pursue their actions in France against A. --
in order to take advantage of the possibility of a more generous award
of damages there -- while preserving their right to proceed against A. in
England in case that proves necessary, ie in the event that the French
Courts decline jurisdiction vis-a-vis A.. A., on the other hand, wish to
confine the plaintiffs to their remedy in England as limited by the stricter
application of the Warsaw Convention.
The two issues arising for decision by the Court on these applications are:
(1) whether or not the plaintiffs are entitled to a stay either (a) under
the inherent jurisdiction of the Court or (b) under arts 21 or 22 of the
European Judgments Convention. (2) Whether the defendants should
be granted (a) certain declarations and/or (b) an anti-suit injunction
restraining the plaintiffs from pursuing the French proceedings.
More specifically the defendants ask for: (1) a declaration that: (a)
the plaintiffs' claim against the defendant is governed by the Warsaw
Convention as amended at the Hague, 1955 ("the Warsaw Convention")
and as set out in Schedule 1 to the Carriage by Air Act, 1961; (b)
the plaintiffs must exercise jurisdiction according to art 28(1) of the
Convention; (c) France is not an art 28 jurisdiction; and, (d) England is
an art 28(1) jurisdiction for each of the plaintiffs, and, (2) an injunction
restraining the plaintiffs from proceeding in France on the grounds that
to proceed in France contravenes international law and is oppressive and
unjust.
The carriage of the deceased on flight number AFL 593 was international
carriage of persons by an aircraft for reward. Russia, Hong Kong, England
and France are all parties to the Convention either as high contracting
parties or, in the case of Hong Kong, as territories of the same: The
Carriage by Air (Parties to Convention) Order, 1988, 1988 No 243. The
plaintiffs' claims against the defendants are therefore governed by the
Convention: s 1, Carriage by Air Act, 1961 and art 1 of the Warsaw
Convention.
As regards jurisdiction, art 28 of the Convention provides:
(1) An action for damages must be brought, at the option of the Plaintiff,
in the territory of one of the High Contracting Parties, either before the
Court having jurisdiction where the carrier is ordinarily resident, or has his
principal place of business, or has an establishment by which the contract
has been made or before the Court having jurisdiction at the place of
destination.
(2) Questions of procedure shall be governed by the law of the Court
seised of the case.
I was informed by Mr Haddon-Cave appearing for the plaintiffs that it
had not been contended in the French proceedings that A. was ordinarily
resident in France nor was it likely that it would be. On this basis none of
the jurisdictions mentioned in art 28 includes France.
As regards the liability of an international carrier, art 17 provides:
The carrier is liable for damage sustained in the event of the death or
wounding of a passenger or any bodily injury suffered by a passenger, if
the accident which caused the damage so sustained took place on board
the aircraft or in the course of any of the operations of embarking or
disembarking.
Article 22 lays down financial limits to the liability of the carrier. However,
art 25 of the Convention provides:
The limits of liability specified in Article 22 shall not apply if it is proved
that the damage resulted from an act or omission of the carrier, his
servants or agents, done with intent to cause damage or recklessly and
with knowledge that damage would probably result; provided that, in the
case of such act or omission of a servant or agent, it is also proved that
he was acting within the scope of his employment.
It is common ground that the French Courts interpret art 25 more
favourably to claimants than do the English Courts, the French Courts
adopting an objective approach and the English Courts a subjective
approach: see the discussion in Shawcross and Beaumont on Air Law (4th
ed) vol 1, (vii) par 132.
As regards the plaintiffs' application for a stay, the Court has power
under its inherent jurisdiction to grant a plaintiff an order staying an
action brought by him if such an order is appropriate in the interest of
justice: The Sylt, [1991] 1 Lloyd's Rep 240 at p 243. The defendants
did not dispute that such a power exists. The Court also has a power in
certain circumstances to order a stay of proceedings when arts 21 or 22
of the European Judgments Convention applies. The European Judgments
Convention, 1968 as amended by the 1971 protocol, the Accession
Convention, 1978 (together referred to as "the EJC") is given the force of
law by s 2 of the Civil Jurisdiction and Judgments Act, 1982. Section 8 of
the EJC is concerned with "Lis pendens-Related actions" and contains arts
21 to 23. The defendants referred me to arts 21 and 22 and contended
that the plaintiffs should be denied a stay on the basis of art 21. Article 21
provides:
Where proceedings involving the same cause of action and between the
same parties are brought in the courts of different Contracting States,
any court other than the court first seised shall of its own motion decline
jurisdiction in favour of that court.
A court which would be required to decline jurisdiction may stay its
proceedings if the jurisdiction of the other court is contested.
Article 22 of the EJC further provides --
Where related actions are brought in the courts of different Contracting
States, any court other than the court first seised may, while the actions
are pending at first instance, stay its proceedings.
A court other than the court first seised may also, on the application of
one of the parties, decline jurisdiction if the law of that court permits
consolidation of related actions and the court first seised has jurisdiction
over both actions.
For the purposes of this Article, actions are deemed to be related where
they are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
separate proceedings.
In the present case the jurisdiction of the French Court is contested by A..
The parties to the proceedings in that Court include the plaintiffs before
this Court and include the same defendants but with other defendants
added, in particular the manufacturers Ai.. The cause of action in both
Courts is for compensation for the death of the passengers. Although in
both Courts the claimants rely upon the Warsaw Convention, the claim
in the French Court includes a claim against the manufacturer, Ai. (which
is outside the Warsaw Convention). It is to be noted that art 21 applies
notwithstanding the fact that (as here) one or more of the parties are
domiciled outside of the Contracting States: Overseas Union Insurance Ltd
v New Hampshire Insurance Co, [1992] 1 Lloyd's Rep 204 at pp 217, 218
(European Court of Justice).
As to the relationship between the EJC and other international
conventions relating to jurisdiction, art 57(1) of the HC provides inter alia
that --
This Convention shall not affect any conventions to which the Contracting
States are or will be parties and which, in relation to particular matters,
govern jurisdiction or the recognition or enforcement of judgments.
There is no doubt that the Warsaw Convention falls within art 57. Indeed
it is one of those listed in the Jenard first report (p 59) as being embraced
by the article. In The Maciej Rataj, [1995] 1 Lloyd's Rep 302 (commenced
as a "sister ship" action in the English Admiralty Court) the European
Court of Justice considered inter alia the situation where owners of part
of a damaged cargo claimed against the shipowners in one jurisdiction ie
the English Admiralty Court and other cargo-owners brought proceedings
in the Dutch Court; but the shipowners had first issued proceedings
in Rotterdam for a declaration of non-liability for the alleged loss and
damage or for limitation of liability. As regards the cargo-owner claimants
in both the English and Dutch Courts there was considerable overlap,
some proceeding in both Courts concurrently. The questions submitted to
the European Court of Justice by the English Court of Appeal related to
the application of arts 57, 21 and 22 as regards the competing claims and
jurisdictions. The cargo-owners' claims were maritime claims of a type
which fell within the provisions of the Brussels Arrest Convention, 1952. It
was therefore held that art 57 aforesaid applied; but the United Kingdom
and the Netherlands are both parties to the 1952 Arrest Convention and
proceedings could properly be brought in either jurisdiction.
The European Court of Justice held inter alia that where two actions
involve the same, cause of action and some but not all of the parties to
the second action are the same as the parties to the action commenced
earlier in another Contracting State, the second Court seised is
required to decline jurisdiction only to the extent to which the parties
to the proceedings before it are also parties to the action previously
commenced; it does not prevent the proceedings from continuing
between the other parties. Two points will be noted. First, although some
parties are proceeding in this Court and they and others are proceeding
in the French Courts, unlike the situation in The Maciej Rataj, the right of
any claimant to bring any proceeding in the French Courts is challenged
by the defendants who rely on art 28 as giving exclusive jurisdiction to
specified Courts which do not include the French Courts. Secondly, the
jurisdiction of the French Courts is contested by the defendants so that
the duty to decline jurisdiction under the first part of art 21 does not
apply; but a discretionary power to stay under the second sentence of
art 21 remains. As to the impact of art 22 (and in particular the third
sentence regarding related actions) the European Court of Justice went
on to hold that if a separate trial and judgment would involve the risk of
conflicting decisions (without necessarily involving the risk of giving rise
to mutually exclusive consequences), that is sufficient for art 22 of the
EJC to apply enabling a Court to stay the proceedings before it. There
is of course a risk of conflicting decisions if both the English and French
Courts determine the same jurisdictional question.
In the present case the claims for compensation in respect of death or
bodily injury against the carrier are governed by the Warsaw Convention:
that Convention lays down specific and exclusive jurisdictions (not
including France). In my judgment art 57 governs the situation and arts
21 and 22 do not apply so as to compel the English Court to decline
jurisdiction or exercise its power to stay under either article. That is why
the inherent power to stay is of such importance. In any event, not only
is there a pending question as to whether the French Courts will accept
jurisdiction, but there is an issue as to when in French law the French
Courts became seised of the claim (a question to be determined by the
French Courts: Zelger v Salinitri, [1984] ECR 2397): so that if arts 21
or 22 applied the appropriate remedy would be a stay of proceedings: cf
Polly Peck International v Citibank NA, The Times, Oct 20, 1993.
What of the situation as regards jurisdiction when a claim is brought not
only against a carrier but against some other defendant? There is no
English authority directly in point. However in Sidhu v British Airways
Plc, [1997] 2 Lloyd's Rep 76; [1997] 2 WLR 26, 26 passengers on an
international flight governed by the Warsaw Convention sought to recover
damages at common law for inter alia psychological injuries which are
not recoverable under the Warsaw Convention. The issue to be decided
was whether a passenger who had sustained damage in the course of
international carriage by air due to the fault of the carrier but who has no
claim against the carrier under art 17 of the Convention is left without a
remedy. It was held by Lord Hope, after considering authorities both in
the United Kingdom and elsewhere, as follows
I believe that the answer to the question raised in the present case is to
be found in the objects and structure of the Convention. The language
used and the subject-matter with which it deals demonstrate that what
was sought to be achieved was a uniform international code, which
could be applied by the Courts of all the high contracting parties without
reference to the rules of their own domestic law. The Convention does
not purport to deal with all matters relating to contracts of international
carriage by air. But in those areas with which it deals -- and the liability of
the carrier is one of them -- the code is intended to be uniform and to be
exclusive also of any resort to the rules of domestic law...
The domestic Courts are not free to provide a remedy according to their
own law, because to do this would be to undermine the Convention. It
would lead to the setting alongside the Convention of an entirely different
set of rules which would distort the operation of the whole scheme.
It has earlier been held by the Court of Appeal in Rothmans of Pall Mall
(Overseas) Ltd v Saudi Arabian Airlines Corporation, [1981] 1 QB 368 at
p 386 per Lord Justice Roskill that art 28 is a self contained code. This
was followed and applied more recently by the Court of Appeal in Milor
Srl v British Airways Plc, [1996] 3 WLR 642 where it was held that art
28 precluded the procedural power to stay proceedings on the ground
of forum non conveniens. The Court appreciated that the scheme of the
Convention inevitably risked a multiplicity of forums being adopted: at p
648 per Lord Justice Phillips and p 649 per Lord Justice Leggatt. This is
what has occurred in the present case.
The claims before this Court fall full square within the Warsaw
Convention: and that Convention lays down obligatory rules as to the
options open to a claimant regarding in which jurisdictions he may choose
to bring his claim. These include a claim in the English Courts; but not
in the French Courts. However the Convention is silent as to the position
where the claim is brought not only against the carrier but also against
the manufacturer. The claimants, relying upon what they perceive to be
French domestic law, have brought their claims in France against both
the carrier and the manufacturer. Following the reasoning in Sidhu, in my
judgment, on the construction of the Warsaw Convention as interpreted in
English law, this is not permissible: the only jurisdictions in which a claim
may be brought against the carrier are those specified in art 28. There is
nothing in the Convention to suggest that this rule may be modified either
under domestic law or otherwise so as to enable a claim to be brought in
some jurisdiction not otherwise permissible under art 28 on the ground
that some other defendant (eg the manufacturer) is being sued by the
same claimant in some other jurisdiction.
However the interpretation of art 28 of the Warsaw Convention where a
manufacturer is joined as a defendant in addition to the carrier may as
a matter of French law be different. In Durnin v Pakistan International
Airways and Ai. Industrie GIE, (1995) (Toulouse Court of Appeal) it was
held that the French Courts did have jurisdiction even though France was
not one of the jurisdictions permitted by art 28. However this decision is
under appeal by the carrier and is expected to come before the Cour de
Cassation in October, 1997. Thus one cannot at this stage know what the
French Courts may finally decide as regards jurisdiction over A. pending
the outcome of that appeal.
Declaratory judgments
As regards the defendants' application, RSC, O 15, r 16 gives the Court
power to give a declaratory judgment. The power is discretionary and
where no other relief is sought should be exercised with great caution.
Here the relief is sought by the defendants at an interlocutory stage
and is sought together with an anti-suit injunction. In my judgment,
in deciding whether to exercise its discretion to make a declaratory
judgment at this stage of the proceedings, the Court is entitled to take
into account the reason it is being sought.
Anti-suit injunctions and comity
As regards the defendants' application for an anti-suit injunction, that
the Court has power to grant an injunction restraining a party in an
action before it from proceeding in some other jurisdiction in relation
to the same claim and against the same party is clearly established:
Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, [1987] 1 AC
871. That case arose out of a fatal aircraft accident in Brunei. It was held
by the Privy Council that in considering whether an injunction should be
granted to restrain a plaintiff beginning or pursuing an action in another
jurisdiction, the Court did not proceed on the same principles as those
applied when granting a stay of proceedings on the ground of forum non
conveniens: as to which see Supreme Court Practice 1997 vol 1), p 86 ff
note 11/1/7. I would comment at this stage that, leaving aside art 28 of
the Warsaw Convention, neither England nor France would strike one as
being a "natural forum" for the resolution of the present claims against A..
The Privy Council in Aerospatiale held that the authorities showed that an
anti-suit injunction would be granted where justice required that a plaintiff
amenable to the jurisdiction of the Court should be restrained from
proceeding in a foreign jurisdiction. Although the question of whether the
plaintiff's action was oppressive or vexatious was material in determining
whether the interests of justice required the plaintiff to be restrained from
proceeding in the foreign jurisdiction, the Court had also to consider the
injustice to the plaintiff if restricted to the natural forum for determining
the dispute if that restriction would unjustly deprive him of advantages
available in the foreign forum. The judgment was delivered by Lord Goff
of Chieveley who (at p 892) held that it has been emphasized on many
occasions that, since such an order indirectly affects the foreign Court,
the jurisdiction is one which must be exercised with caution. Lord Goff
was also concerned (at p 895) with comity and with the principle that the
injunction will only be granted where the ends of justice so require.
The plaintiffs relied heavily on the doctrine of comity in resisting the
defendants' claims for both declaratory and injunctive relief. In particular,
as well as reliance on the decision in Aerospatiale, they cited a passage
of the judgment of Mr Justice Hoffmann in Re Maxwell Communications
Corporation plc (No 2), [1992] BCC 757 at p 765 where he held --
... the normal assumption is that the foreign judge is the best person
to decide whether an action in his own court should proceed. Comity
requires a policy of non-intervention not only for the same reason that
appellate courts are reluctant to interfere with the exercise of a discretion,
namely that in the weighing of the various factors, different judges may
legitimately arrive at different answers. It is also required because the
foreign court is entitled, without thereby necessarily occasioning a breach
of international law or manifest injustice, to give effect to the policies of
its own legislation.
The same sentiments were echoed in a decision of the Supreme Court of
Canada in Amchem Products Inc v Workers Compensation Board, (1993)
102 DLR 96 at p 118 it was held as regards the granting of anti-suit
injunctions --
In order to resort to this special remedy consonant with the principles
of comity, it is preferable that the decision of the foreign court not be
pre-empted until a proceeding has been launched in that court and the
applicant for an injunction in the domestic court has sought from the
foreign court a stay or other termination of the foreign proceedings and
failed.
If the foreign court stays or dismisses the action there, the problem
is solved. If not, the domestic court must proceed to entertain the
application for an injunction but only if it is alleged to be the most
appropriate forum and is potentially an appropriate forum.
As regards the present case the plaintiffs submitted that, as the French
Courts were already engaged in determining their own jurisdiction, it
would offend comity for this Court to grant an injunction preventing
some claimants from pursuing the French jurisdictional question while
others (not parties to the English proceedings) would be free to continue.
In short the submission was that the French Courts are best suited to
determine their own jurisdiction even when an international convention
such as the Warsaw Convention is involved. Even if one were to grant the
injunction sought, the defendants are inevitably faced with proceedings in
the French Courts by other claimants: so the injunction would not prevent
them from having to argue their case on jurisdiction before the French
Courts. Further, the French Courts have not yet finally decided whether
they have jurisdiction, that question of law to be determined by the Cour
de Cassation in about October, 1997 in the PIA case.
In Ai. Industrie GIE v Patel, [1997] 2 Lloyd's Rep 8 the French
corporation, Ai. Industrie GIE, sought declaratory and injunctive relief
against a number of English passengers (or their representatives) who
were injured or killed in an air crash of an aircraft assembled by Ai.
Industrie GIE which occurred in Bangalore, India. The question to be
decided was whether the English claimants should be restrained by
injunction from prosecuting further an action they had commenced
in Texas. However all proceedings against Ai. Industrie GIE had been
dismissed on the grounds of want of jurisdiction; but there was an appeal
pending. Texas (at the relevant time) had no doctrine of forum non
conveniens. After a detailed examination of the facts and authorities, Lord
Justice Hobhouse held --
The position is therefore that there is one forum, India, which is
the appropriate forum; there is another forum, France, which is an
appropriate forum; the English claimants are seeking to sue in a third
forum, Texas, which is clearly inappropriate. The conduct of the English
claimants is prima facie oppressive.
This decision is not concerned with a case of a claim against the carrier
under the Warsaw Convention; the carrier was Indian Airlines which
does not operate internationally. The relevant claim was solely against
the French manufacturer and had nothing to do with Texas. The anti-
suit injunction restraining proceedings in Texas was granted (reversing
the trial Judge). In the present case the French Court has yet to decide
whether France is an appropriate jurisdiction: so that, while as a matter
of interpretation of the Warsaw Convention by an English Court, France
would not be appropriate, one does not yet know what the final decision
of the French Court will be.
What then are the grounds upon which an antisuit injunction is sought in
the present case? Mr Robert Webb, QC for the defendants contends that
the relevant principles for the granting of an injunction to restrain foreign
proceedings in favour of an action here are that: (1) the jurisdiction to
grant such an injunction is to be exercised where the facts justify it (here
the defendant has an interest in being sued in a Convention jurisdiction);
(2) for reasons of comity of nations, the normal assumption is that it
is for the foreign Judge to decide whether an action should proceed in
his Courts; and, (3) in order for such an injunction to be granted the
English Court must conclude that the pursuit of the action in the foreign
Court would be vexatious or oppressive; (4) vexation and oppression
can be interpreted in wide terms, so as to equate with injustice: Societe
Nationale Industrielle Aerospatiale v Lui Kui Jak (ibid) at pp 892 to 897
and Ai. Industrie GIE v Patel (ibid).
The defendants contend that the circumstances of this case are such
that an injunction should be granted. Given the provisions of art 28,
England they say (correctly) is a legal forum for the plaintiffs' claims. In
contrast, they say, France is not a legal forum nor is it a natural forum
because it is not an art 28 jurisdiction and the plaintiffs' claims against
this defendant have no connection with France. However, as stated above,
this jurisdictional point has yet to be finally determined by the French
Courts. The defendants make the point that the French proceedings and
this action were both started at about the same time and both sets of
proceedings are still at an early stage. There is, they contend, little lost
time or expense if the French proceedings are now restrained. However
this does not answer the point as to whether it is right as a matter of
discretion and principle to order such a restraint. They go on to submit
that although the defendant has contested the jurisdiction within the
French proceedings, there is no procedural device in France whereby it
can force this issue to be determined there as a preliminary issue and
it is likely that this issue will not be determined until there is a full trial.
Having considered the expert evidence on French law, I do not accept this
latter point is correct. What the French Court will in fact do is a matter of
domestic procedure for that Court.
The defendants go on to contend that if the plaintiffs are allowed to
proceed in the French Courts they will have an illegitimate juridical
advantage over the defendant in that: (1) they will be proceeding in
a forum which does not have jurisdiction over the defendant; (2) the
defendant will be forced to incur the full costs of trial in an inappropriate
forum in the knowledge that, if it succeeds on jurisdiction in that forum,
it may have to then defend an action in an appropriate forum (viz here);
(3) it will expose the defendant to an interpretation of art 25 of the
Convention (by which the limits of liability can be broken) which is more
favourable to the plaintiffs than that adopted in England. Thus it is
submitted the plaintiffs will be picking and choosing between different
articles in the Convention, using arts 17 and 25 but rejecting art 28;
(4) it will expose the defendant to a claim for "moral damages", which
the plaintiffs seek in the Toulouse proceedings but which would not be
obtainable if they were to proceed in England.
Dealing with these last four points in turn, the French Court has not
yet decided the jurisdictional point. The defendants will have to incur
the costs of fighting the jurisdictional point in France in any event. The
defendants relied upon Australian Commercial Research and Development
Ltd v ANZ McCaughan Merchant Bank Ltd, [1989] 3 All ER 65 at pp
69 to 70 and argued that the plaintiffs were obliged to elect whether
they were proceeding in England or France. I do not accept that the
time for any such election has yet arisen. Further, the point as to the
interpretation of art 25 and the claim for moral damages does not arise
until the jurisdictional point has been decided.
Conclusions
Dealing firstly with the defendants' application for an anti-suit
injunction, given the fact that the French Courts have to determine the
jurisdictional issue and that in the PIA case the question will be before
the Cour de Cassation, I do not believe it appropriate in the light of
the aforementioned authorities on comity for the Court to exercise its
discretion to grant an anti-suit injunction. I do not regard the plaintiffs'
attempt to establish jurisdiction in the French Courts as vexatious,
oppressive or unjust. I bear in mind that, whatever order this Court might
make, the French Court will be deciding its own jurisdiction over A. in any
event. It is more appropriate for the French Court to determine its own
jurisdiction than for the English Court to make an order against some
claimants only to prevent them participating in those proceedings.
As regards the applications for a declaration, it might be said with some
force that for the English Court merely to make a declaration as regards
the English law interpretation of the Warsaw Convention would not offend
comity. The parties before this Court disagree on this jurisdictional point.
However the real reason why a formal declaratory judgment is sought is
not in furtherance of the proceedings before this Court but to allow that
judgment to be shown to the French Court when it is determining the
same question. After careful consideration I have come to the conclusion
that it would not be right and would be contrary to the principles of
comity to make the formal declaratory judgment sought. The jurisdiction
of the French Courts and their interpretation of the Warsaw Convention
is a matter for them and not for an English Court. I have dealt with the
jurisdictional point as argued before me and have come to conclusions on
it in order to deal with the various arguments and have indicated above
what the result would be in my judgment if the matter were finally to
be decided in the English Courts. That is a necessary consequence of
dealing with the arguments before me and of itself does not offend comity
because I do not seek to interfere with the decision of the French Courts.
As regards the plaintiffs' application for a stay, in the exercise of its
inherent jurisdiction of the Court I believe such an order is sensible
pending the outcome of the litigation in France on the jurisdictional
questions. It makes no sense to compel the plaintiffs to be put to
additional expense in pursuing English proceedings until the outcome of
the French proceedings on jurisdiction is known.
In the result I grant the plaintiffs' application for a stay of these
proceedings and dismiss the defendants' application for a declaratory
judgment and an anti-suit injunction.