8
Staying of English actions and restraint
of foreign proceedings

The English court has an inherent power, which is contained also in the Supreme Court Act 1981, section 49(3), to stay any action which is frivolous or vexatious or otherwise an abuse of the process of the court.

It also has the power to restrain, by injunction, persons subject to its jurisdiction from instituting or continuing proceedings in foreign courts. The power of the court to grant injunctions generally is to be found in section 37(1) of the same Act.


Staying of English actions

General principles

Until relatively recent times, the courts denied that English law contained any general doctrine of forum non conveniens, by virtue of which a court will decline to exercise the jurisdiction it possesses because it is not the most suitable court to hear the case but some foreign court is.1 But the law on this matter underwent considerable development after 1972 when a process of 'liberalisation' set in. For some time, the principles upon which a court should exercise its discretion to stay or not to stay an action in favour of a foreign court were a matter of considerable doubt and it was not until 1986 that the courts adopted coherent guidelines. Then, in Spiliada Maritime Corporation v. Cansulex Ltd (The Spiliada),2 the House of Lords introduced some order into the confusion which it had itself generated in the first place.

The Spiliada laid down the basic principle that English proceedings may be stayed where there is another clearly more appropriate forum for

____________________
1
It was explained in the previous chapter (p. 75) that forum non conveniens has always governed cases in which the court is asked to exercise its discretion to allow service out of the jurisdiction under CPR Rules 6.20 et seq., esp. 6.21 (2A), but there it is being asked to assume jurisdiction over an absent defendant.
2
[1987] AC 40 HL.

-84-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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