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Report No. 188


The position in England is generally no different. At one time, the theme was that English Courts should have regard for the Court in other countries which have a developed system of justice: (The El America. 1981 (2) Llyods Rep. 119: This was also the view also in Maharanee of Baroda vs. Wildenstein: 1972(2) QB 283.

But this view does not generally prevail in UK in most cases.

There have been significant recent judgments of UK Courts which like the US Courts, have generalized about delays in Indian Courts. In European Asian Bank vs. Punjab & Sind Bank: (1982)2 Lloyd's Rep. 356 (CA), it was stated that neither India nor Singapore were clearly appropriate for trial of actions than England. In that case, the plaintiff, a West German Bank brought an action in England against an Indian Bank by serving a writ on a branch office for payment under a Letter of Credit. The stay application filed by the defendant (defendant-alien-Bank) was rejected and the case was continued in the UK Court on the general assumption of long delays in Indian Courts.

A similar view was adopted in the Vishva Abha: (1990((2) Llyod's Rep. 312. In Vishwas Ajay: 1989(2) Lloyd's Rep. 558, a generalized plea of 'inordinate delays' in India of the magnitude of ten years before actions come to trial, was accepted and it was assumed that there was denial of justice abroad. The matter was continued in the English Court, rejecting the application for stay filed by the defendant. In Jalakrishna: 1983(2) Lloyd's Rep 628, it was held that there are procedural advantages in UK which are relevant. (See also The Vishva Abha: 1979(2) Llyod' Rep 286).

The attitude of English Courts has also been adversely commented upon by Prof. J.J. Fawcett ("Trial in England and Abroad: The Underlying Policy Considerations) (Vol 9 Oxford Journal of Legal Affairs. P. 205 at 220) statingthat in none of the cases in which the House of Lords has granted stay of English proceedings is the plaintiff English. It would be very difficult to show that there is clearly a more appropriate forum abroad if the plaintiff is English, he observes. Significantly, Prof. Fawcett says (ibid. p 221) that even though it is accepted that English Courts are crowded and there are delays up to three years in the commercial courts in England, still the above attitude has continued. He says:

"At the moment, the Commercial Court in London is facing quite serious problems of delay arising from the sheer number of cases being brought before it. It was said that if trial was sought in early 1987, in could not be fixed until 1990. (See Zakhlem Intnl Construction Ltd. vs. Nippon Kokan K.K 1987(2) Lloyd's Rep. 661). However, the English Courts have never used the fact that the Courts are already crowded as a reason for refusing to allow trial in England. Instead, it is pointed out that the delay here may still be less than that abroad."

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