Scottish Court of Session Decisions

Patrick Sim, residing at 4 Hanover Street, Hanover Square, London, brought two actions against Henry Robinow, presently residing at Braemar. Both actions related to certain joint speculations in mining and other shares entered into by the parties in South Africa. At the date of service the defender had been resident for more than 40 days in Braemar.

In the first action the pursuer sought to have the defender ordained to count and reckon with him in regard to the proceeds of certain shares in the Kimberley Central Diamond Mining Company.

The pursuer averred that he and the defender, until recently, had both done business in South Africa; that while there they had become interested, as joint adventurers, in a number of investments, including the shares mentioned in the summons; that the share certificates and other documents had been entrusted to the defender, who had full power to dispose of them; that except as regarded the shares specified in the summons the parties had adjusted their accounts in 1887; that the said shares had been realised in 1888, and the defender had failed to account for the proceeds. The pursuer produced a copy of an account dated in 1887, to which was appended a docquet signed by the defender, bearing that these shares were not included in the adjusted account.

On the merits the defender answered that after such a lapse of time, and in the absence of all his books, papers, &c., he was “not in a position to state accurately the details of the transaction set forth in the condescendence. The whole accounts in connection therewith were long ago squared up, paid, and settled by the parties, and there is no sum due by the defender to the pursuer in connection therewith.”

In the second action the pursuer sued the defender for payment of £710, 18s. 5d. and interest, alleging that the defender had been indebted to him in that sum on 13th April 1889, “conform to statement of accounts extracted from the defenders' books, and signed by his clerk, Mr A. Rodger.”

On the merits the defender answered that it was impossible for him “to check or verify the ‘statement of account’ produced by the pursuer. The books and papers, as well as the witnesses necessary for doing so, are all in South Africa.” He further averred that any sum due by him to the pursuer was more than counterbalanced by a claim which he had against the pursuer for a number of cases of dynamite, for which pursuer had failed to account while managing on behalf of the defender a magazine for storing dynamite in South Africa.

The defender also in both actions made

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the following statements:—“(Stat. 1) The defender was born in Scotland, but he left that country in 1869, and has since resided abroad, principally in South Africa, where he has for ten years past carried on business as a merchant and commission agent at Kimberley. Since 1869 he has only twice been in Scotland on short visits, once in 1888–89, and again on 29th July 1891, when he arrived in Scotland for a short visit, on account of his health, and stayed for some time with his mother at Braemar, where she was a summer visitor. He has now left Scotland, and is about to return to Kimberley to conduct his business there, which during his absence is being conducted by his fully authorised attorney, Mr Louis Breitmayer, Beits Buildings, Church Street, Kimberley, who has power to accept service of any summons raised against the defender in the Courts of Cape Colony. The defender has no property or effects of any description in Scotland. He is not a domiciled Scotsman, nor subject to the jurisdiction of the Scottish Courts. (Stat. 2) The pursuer was also for many years in South Africa. He returned to this country about two years ago, but, as the defender believes and avers, is about to go back shortly to South Africa, where he has property. (Stat. 4) In the circumstances above narrated, any proceedings which the pursuer desires to raise against the defender ought to be taken before the Courts in Cape Colony, South Africa, and not in the Court of Session.”

The pursuer in answer to statement 2 admitted that he held shares in mining and other companies in South Africa, but averred that he had no intention of returning there.

The defender pleaded in both actions—(1) No jurisdiction. (2) Forum non conveniens.

On 16th February 1892 the Lord Ordinary ( Low) in both actions repelled the first and second pleas-in-law for the defender, and allowed the parties a proof of their respective averments.

“ Opinion.—… In these circumstances, while the jurisdiction of this Court is not disputed, the plea of forum non conveniens is urged. The defender maintains that the proper forum for trying the questions which are raised is in South Africa, because the joint adventures which are the subject-matter of the action were carried on there, and the books and the witnesses necessary to the determination of the matter in dispute are also there.

In my opinion the considerations of convenience in this case are not sufficiently strong to justify me in sustaining the plea. Where there is jurisdiction the Court cannot, I apprehend, refuse to entertain an action, unless the circumstances make it plain that there is another tribunal to which not only the convenience of all the parties but the justice of the case point as the proper forum. Actions of accounting against a foreign executry or a foreign partnership are properly brought in the courts of the domicile of the executry or the partnership, and these form the most familiar examples of the kind of case in which the plea of forum non conveniens has been sustained— Clements v. Macaulay, 4 Macph. 583, Lord Justice-Clerk (Inglis), p. 592. The plea, however, is not confined to that class of cases, but applies wherever it can be shewn that the case cannot consistently with fairness and justice be tried in this country. Thus, where a gentleman in Scotland brought an action of damages against the manager of his estates in Jamaica for alleged mismanagement and neglect of duty, it was held that the Courts of Jamaica, where the estate, the books and documents, and the witnesses were, was the proper forum—Tulloch v. Williams, 8 D. pp. 6 and 7. Again, in Williamson v. North-Eastern Railway Company, 11 R. 596, it was held that an action of damages against an English Railway Company for an accident occurring in England, and in circumstances which raised a question of an English right-of-way, could not be maintained in the Scottish Courts. The question, therefore, is one for the discretion of the Court in view of the circumstances disclosed—the general rule, however, being, as I have already said, that the Court must exercise its jurisdiction unless there are very clear and weighty grounds for refusing to do so.

In the present case I am of opinion that such grounds are not present. The action is not one of general accounting in regard to a former partnership or business. The one action is for an accounting for the price realised by the sale of specific shares, and the other is for an alleged ascertained balance upon a particular account between the pursuer and the defender. I therefore do not see that there will be any necessity for a general investigation into the business books of the defender. At the most, excerpts from the books of the entries relating to the joint speculations is all that can be required. Then the fact that some witnesses may require to be examined upon commission in South Africa does not appear to me to create a difficulty, especially as the questions at issue must turn rather on the state of the accounts in regard to certain specific transactions than upon matters of fact to be established by parole evidence. Further, I do not think that any specific question of South African law is raised

In regard to the counter-claim of the defender, I do not think that it can be properly pleaded in defence to an action for an ascertained balance, and if the defender seeks to constitute that claim in a specific action he can institute proceedings either here or in the Courts of South Africa.

I shall therefore repel the plea of forum non conveniens.”

The defender reclaimed, and argued—The question raised by the plea of forum non conveniens was one for the discretion of the Court, and the plea should be sustained in any case where the result would be to further the ends of justice. It was not necessary to the validity of the plea that there should be a depending process in

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another country. The question was simply which of the two Courts having jurisdiction was the most convenient forum for trial of the cause— Williamson v. North-Eastern Railway Company, February 28, 1884, 11 R. 596, per Lord Justice-Clerk, 598; Longworth v. Cook and Others, July 1, 1865, 3 Macph. 1049, per Lord President, 1053; Martin v. Stopford Blair's Executors, December 4, 1879, 7 R. 329, per Lord President, 331; Tulloch v. Williams, March 6, 1846, 8 D. 657. In the first instance the onus lay on the defender to show why the plea should be sustained, but the circumstances of the case had shifted the onus. (1) The jurisdiction was snatched when the defender was on a visit to Scotland for the benefit of his health, and the case was thus a fortiori of cases in which jurisdiction had been founded by arrestment— Clements v. Macaulay, March 16, 1866, 4 Macph. 583, per Lord Barcaple, 589; Tulloch v. Williams, supra. (2) The pursuer might, if he had wished to do so, have raised his actions in Africa, when both parties were there. (3) Everything in the case was African, and not Scotch. The claims arose out of transactions entered into in South Africa, and the books and witnesses which were the means of proof were to be found there. The defender was now in the Riviera, and was soon to return to South Africa, and in these circumstances it would be a great hardship to him if he were to be subjected to the jurisdiction of the Scottish Courts. A branch of the Supreme Court of the Colony sat at Kimberley, and that was the most appropriate, and would be the least expensive forum for trial of the cause.

Argued for the pursuer—The present did not fall within the class of cases to which the plea of forum non conveniens applied. There might be some little inconvenience to the defender in being called on to answer in the Courts of this country, but that was not a sufficient reason to justify the Court in refusing to exercise its jurisdiction. The defender must show that he would be put to an unfair disadvantage if the cases were tried in Scotland, and that he had failed to do. On the contrary, as pointed out by the Lord Ordinary, there was no special difficulty in settling all the questions between the parties in this Court. Further, the letters produced showed that the pursuer's claims had been intimated to the defender about two years before the actions were raised, and he had thus had plenty of time to clear up the points at issue while he was still in South Africa had he desired to do so. The plea of forum non conveniens should therefore be repelled. The defender's counter-claim in the petitory action was irrelevant.

At advising—