On 23 March 1982 two ships, the Las Mercedes and the Abidin Daver, collided in the Bosphorus Strait off the port of Buyukdere, Türkiye. The Las Mercedes was a Cuban ship owned by a Cuban State corporation (the respondent) and the Abidin Daver was a Turkish ship owned by a State corporation (the appellant). Each ship blamed the other and each of the owners claimed to be entitled to recover damages from the other in respect of the collision.

Following the collision, the appellant obtained an order for the detention of the Las Mercedes from the Sariyer District Court. On 16 April 1982, the Turkish owner as plaintiff began proceedings against the Cuban owner as defendant in the same Turkish court, in which they claimed damages in respect of the collision. Turkish lawyers acting for the Cuban owner acknowledged service in the Turkish action and the Cuban owner provided security for the Turkish owner's claim to enable the Las Mercedes to be released from detention.

On 29 June 1982, the Cuban owner as plaintiff began an action in rem in the Admiralty Court in England against the Abidin Daver and 57 sister ships, in which the plaintiff claimed damages in respect of the same collision. On 2 July 1982, the Cuban owner served a writ in the English action on the ship Gazi Osman Pasha, one of the sister ships of the Abidin Daver, which was then in a Welsh port, and arrested it there. English lawyers acting for the Turkish owner acknowledged service of the writ and the Turkish owner provided security for the Cuban owner's claim to enable the Gazi Osman Pasha to be released from arrest.

On 28 July 1982, the Turkish owner issued a notice of motion in the English action in which it applied for a stay on the ground that both the claim of the Turkish owners and the cross-claim of the Cuban owners should be adjudicated by the Turkish court alone. On 4 May 1983, Sheen J granted the stay and refused the Cuban owner leave to appeal.

The Cuban owner applied to the Court of Appeal for leave to appeal and to adduce further evidence. These applications were heard and granted and the Court of Appeal proceeded to hear the substantive appeal. The Court of Appeal allowed by Cuban owner's appeal and removed the stay.

The Turkish owner appealed.

The appellant argued that where there are other proceedings on foot, they should not be disregarded but that the weight that should be attached to them will vary according to the circumstances of the case; whereas the Court of Appeal decided that the fact of proceedings on foot in another jurisdiction is the subject of a special rule that 'save in exceptional circumstances, relatively little weight should be given to it'. As the law has developed, the Judge should have applied the principles set out in MacShannon v Rockware Glass Ltd [1978] AC 795, which was done by Sheen J, and had the Court of Appeal applied those principles, the decision of Sheen J would have been affirmed. In arguments, reference was made to arts 1, 3, and 7 of the Arrest Convention 1952, and art 1 of the Collision (Civil Jurisdiction) Convention 1952.

The respondent argued that the overall principle is to ensure that the retention of English jurisdiction does not cause injustice; that the essential burden of proving that the retention of the English jurisdiction would cause injustice is on the party seeking a stay; and that the relevant considerations relating to the Court's powers to order a stay are contained in two so-called rules. Namely, the defendant must satisfy the Court that there is another forum to whose jurisdiction they are amendable in which justice can be done between the parties at substantially less inconvenience or expense, and the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to it if it invoked the jurisdiction of the English Court.

In admiralty, the respondent argued, courts are even more reluctant to grant a stay of an English action because the Admiralty Court is prima facie a natural and appropriate forum in which to bring an action of this kind, and cited art 1 of the Arrest Convention 1952 in support. The respondent argued that if the English proceedings were stayed it would not have to pay 15% deposit to pay the costs of the Turkish court; it was an advantage for the Cuban owner to have the proceedings conducted in the English language and to have the experience of the English Admiralty Court; and that in the English proceedings it would be the plaintiff and not the defendant.

Held: Appeal allowed.

Lord Diplock: The essential change in the attitude of the English courts to pending or prospective litigation in foreign jurisdictions that has been achieved step-by-step during the last 10 years as a result of the successive decisions in The Atlantic Star [1974] AC 436; MacShannon [1978] AC 795 and Amin Rasheed [1984] AC 50, is that judicial chauvinism has been replaced by judicial comity to an extent which is, in the field of law with which this appeal is concerned, indistinguishable from the Scottish legal doctrine of forum non conveniens.

Where a suit about a particular subject matter between a plaintiff and a defendant is already pending in a foreign court which is a natural and appropriate forum for the resolution of the dispute between them, and the defendant in the foreign suit seeks to institute as plaintiff an action in England about the same matter to which the person who is plaintiff in the foreign suit is made defendant, then the additional inconvenience and expense which must result from allowing two sets of legal proceedings to be pursued concurrently in two different countries where the same facts will be in issue and the testimony of the same witnesses required, can only be justified if the would-be plaintiff can establish objectively by cogent evidence that there is some personal or juridical advantage that would be available to him only in the English action that is of such importance that it would cause injustice to him to deprive them of it.

Since the District Court of Sariyer would be recognised by the English High Court as a Court of competent jurisdiction, any judgment given by it against the Cuban shipowner would be enforceable in England by action; so an unseemly race to be the first to obtain judgment in the jurisdictions in which the Turkish shipowner and the Cuban shipowner respectively are plaintiffs might well ensue; and novel problems relating to estoppel per rem judicatam and issue estoppel, which have not hitherto been examined by any English court, might also arise. Comity demands that such a situation should not be permitted to occur as between courts of two civilised and friendly states. It is a recipe for confusion and injustice.

Lord Keith of Kinkel: In MacShannon v Rockware Glass Ltd [1978] AC 795, his Honour analysed the speeches of Lord Reid and Lord Wilberforce in The Atlantic Star [1974] AC 436, and observed that a distinction was to be drawn between a case where England is the natural forum for the plaintiff to bring his action and a case where it is not. The natural forum means that with which the action had the most real and substantial connection. In the present case it is abundantly plain, having regard to the circumstances of the case, that Turkey is, and England is not, the natural forum.

Lord Brandon of Oakbrook: It is not in dispute that both the Sariyer District Court in Türkiye, and the Admiralty Court in England, are courts of competent jurisdiction to try and determine the question of liability for the collision and to assess the damages payable by the one side or the other. So far as the Admiralty Court in England is concerned, jurisdiction to hear and determine the Cuban owner's claim in an action in rem is conferred on it by ss 20 and 21 of the Supreme Court Act 1981. It does not, however, necessarily follow that, because an English court has jurisdiction to try and determine a particular claim, it is always and in all circumstances obliged to exercise that jurisdiction.

It is not now, and was not in the past, infrequent, following a collision between two ships, A and B, for two actions to be brought in respect of it, one by the owners of ship A as plaintiffs against the owners of ship B as defendants in a foreign court of competent jurisdiction, and the other by the owners of ship B as plaintiffs against the owners of ship A as defendants in the Admiralty Court in England, which is, of course, precisely what has happened in the present case. In such cases it also occurred from time to time that the owners of ship A would apply to the Admiralty Court here for a stay of the action before it, on the ground that both claim and cross-claim could and should be decided by the foreign court concerned. The situation until 1973, however, was that such applications were invariably dismissed, the broad ground for refusing a stay being that the bringing and continuance of the action here was not, merely by reason of the co-existence of the action abroad, so oppressive or vexatious to the owners of ship A as to work them an injustice.

The need for an applicant for a stay to satisfy the court that the continuance of the action against them would cause injustice because it would be oppressive or vexatious to them no longer exists. In The Atlantic Star [1974] AC 436, it was said that the words 'oppressive' and 'vexatious' were not terms of art and must be given a much broader and much less rigid sense than had been given to them in the past. In MacShannon v Rockware Glass Ltd [1978] AC 795, the process in the development of the law which had been begun in The Atlantic Star was carried a long step further: it was said that it would be better for the future, in order to avoid confusion, to get rid altogether, in the formulation of the relevant principles, of the words 'oppressive' and 'vexatious'.

The exercise of the court's discretion in any particular case necessarily involves the balancing of all the relevant factors on either side, those favouring the grant of a stay on the one hand, and those militating against it on the other. Such balancing may be a difficult process and some cases may be very near the line.

The grounds on which an appellate court is entitled to interfere with the decision the judge of first instance has made are of a limited character. It cannot interfere simply because its members consider that they would, if themselves sitting at first instance, have reached a different conclusion. It can only interfere in three cases: (1) where the judge has misdirected themselves with regard to the principles in accordance with which their discretion had to be exercised; (2) where the judge, in exercising their discretion, has taken into account matters which they ought not to have done or failed to take into account matters which he ought to have done; or (3) where their decision is plainly wrong.

Sheen J directed himself correctly as with regard to the principles according to which he was obliged to exercise his discretion. His Honour took into account all the right matters and did not take into account any wrong matters. As such, it is impossible to say that the decision which Sheen J reached was plainly wrong. On the contrary, it was plainly right.