Scottish Court of Session Decisions

LORD HUNTER'S OPINION.—The pursuers are four Scottish limited companies, two of which have their registered offices in Oban and the others in Perth and Aberdeen respectively. According to their averments in article 1 of the condescendence the pursuers produce, process and market and dispose of "Harris Tweed" which is handwoven in the Outer Hebrides, but in respect of which all the other processes, such as spinning and finishing, are performed at their mills on the Scottish mainland.

There are sixteen defenders, of whom the first fourteen are persons, firms or companies carrying on business as producers of "Harris Tweed" in Harris and other parts of the Outer Hebrides. These first fourteen defenders all have their registered offices or places of business in Scotland, the majority being in Stornoway. The fifteenth defender is a Scottish company having its registered office at Inverness and it carries on the business of a finisher for producers in the Outer Hebrides. The sixteenth defender is an English limited company, which by virtue of its ownership of heritable property at Garden Road, Stornoway, is subject to the jurisdiction of the Court of Session. Its registered office is in London. It appears from article 5 of the condescendence and from answer 5 that the sixteenth defender has carried out advertising in the United Kingdom and elsewhere with a view to promoting the sale of Harris Tweed produced by the other defenders, and other averments in the action suggest that this company carries out some of the functions of a trade association on behalf of the other defenders. The pursuers, for their part, are members of another association, Independent Harris Tweed Producers, Limited, a Scottish company having its registered office in Edinburgh, which is not a party to the present action, but which is mentioned on record.

The conclusions of the summons are wide in their scope. The first conclusion is for declarator that the pursuers are entitled to produce, process and market as "Harris Tweed," cloth made from pure virgin wool produced in Scotland, dyed and spun in the Outer Hebrides or elsewhere in Scotland, handwoven in the Outer Hebrides and finished in the Outer Hebrides or elsewhere in Scotland, and to dispose of the said cloth in Scotland or elsewhere as Harris Tweed. The main averments in support of this conclusion are to be found in article 2 of the condescendence and they are brought to a point at page 9 A-C of the closed record where the pursuers in effect aver that cloth made from pure virgin wool produced in Scotland, spun on the Scottish mainland, handwoven in the Outer Hebrides and finished in the Outer Hebrides and elsewhere in Scotland is entitled to be marked "Harris Tweed" and produced, processed, marketed and disposed of in Scotland and elsewhere as "Harris Tweed" and is properly capable of being described as "Harris Tweed." It will be observed that the geographical limits within which the pursuers claim that they are entitled to produce, process and market such cloth as "Harris Tweed" are described both in the conclusion and in the condescendence as "in Scotland or elsewhere." Counsel for the pursuers did not shrink from the view that the words quoted are to be interpreted as meaning "in Scotland or elsewhere in the world." Counsel put it, in terms, that in his submission the question in the present action is whether the tweed which the pursuers produce is Harris Tweed and whether it may be marketed as such throughout the world wherever Harris Tweed is sold. I may here add, because it is convenient to say so at this point, that counsel for the pursuers agreed that the words "in Scotland or elsewhere" where they are twice used in the second conclusion of the summons are intended to have an equally wide signification.

The defenders' averments of fact relating to the declaratory conclusion are contained mainly in answer 2 and their essence is to be found in two passages at pages 11 A to C and 11 E to 12 D of the closed record. In the first of these passages the defenders make the following averments:—

"Explained and averred that while at various periods in the history of the industry certain of the processes involved in the making of Harris Tweed, particularly dyeing and finishing and to a lesser extent spinning, have been carried out on the mainland of Scotland, for at least twenty-five years, with possibly a few exceptions arising out of conditions resulting from the war, Harris Tweed in all its processes has been made only in the Outer Hebrides."

In the second of the passages referred to the defenders aver:—

"The words ‘Harris Tweed’ have been used and advertised in relation to cloth made in the Islands for a period exceeding sixty years. Over the last twenty-five years advertisement of the defenders' cloth has included from time to time a definition of Harris Tweed to the effect that ‘Harris Tweed’ means a tweed made from pure virgin Scottish wool which has been spun, dyed and finished in the Islands of Harris and Lewis and the adjacent Islands of the Outer Hebrides and has been handwoven by the Islanders at their homes. The words (Harris Tweed) by reputation and renown have become distinctive to the trade and the public of a tweed corresponding to the foregoing definition and to no other."

It appears from the foregoing summary of the averments on one side and the other that the main issue of fact between the parties, so far as relating to the declaratory conclusion, is whether, to entitle the name "Harris Tweed" to be used, all the processes including dyeing, spinning, handweaving and finishing must be carried out in the Outer Hebrides or whether it is sufficient that handweaving be carried out there provided the other processes are carried out somewhere in Scotland, it may be on the mainland. I understand it to be common ground between the parties that the wool need not necessarily be produced in the Outer Hebrides. It is sufficient if it is pure virgin wool produced in Scotland. The foregoing attempt to focus the main issue of fact, so far as relating to the declaratory conclusion, is necessarily stated in somewhat general terms and it should be noted that, although the pursuers specifically put in issue the right to use the description "Harris Tweed" both in Scotland and elsewhere, the defenders do not expressly offer to prove that the meaning of the words "Harris Tweed" for which they contend is accepted over an equally wide geographical area.

I now turn to the other main conclusion of the summons, which, as I have already pointed out, is in equally wide terms so far as concerns geographical area. This conclusion is to interdict the defenders or anyone on their behalf from wrongfully asserting in Scotland or elsewhere that the pursuers' production, processing, marketing and disposal in Scotland or elsewhere as Harris Tweed of cloth made from pure wool produced in Scotland, dyed and spun in the Outer Hebrides Argyllshire or elsewhere in Scotland, handwoven in the Outer Hebrides and finished in the Outer Hebrides or elsewhere in Scotland is not the production, processing, marketing and disposal of Harris Tweed. The averments in support of this conclusion are contained in articles 3 to 9 inclusive of the condescendence, and I shall deal more particularly with certain of these averments when I come to consider the three points of relevancy which were the subject of argument in the discussion before me in the Debate Roll. I may say in passing that, in the course of that discussion, no attempt was made to suggest that there was anything incompetent about seeking an interdict in such wide terms and no plea of competency is included in the defences. In any event, the case is clearly one in which the Court of Session has jurisdiction over the defenders, not merely by virtue of the power of the Court to interdict the commission of wrongful acts within its own territory, but on other recognised grounds of jurisdiction, and presumably, therefore, an interdict in wide terms would be capable of enforcement.

With this introduction I can now turn to the main question argued in the Debate Roll, that of forum non conveniens. This question is raised ante omnia by the defenders' second plea-in-law which is in the following terms:—

"2. In respect that the issue in the present action is pending before the High Court in England (lis alibi pendens) and the Court of Session in these circumstances being forum non conveniens, the present action should be now dismissed, or alternatively sisted to await the decision of the said action in England."

The composite nature of this plea is, I think, somewhat unusual, but senior counsel for the defenders expressly conceded that he could not support a plea of lis alibi pendens, since he understood that such a plea could only be sustained where the same matter was being litigated between the same parties in another competent Court in Scotland. I think that counsel was well advised to make this concession. See Maclaren, Court of Session Practice, p. 387. Counsel for the defenders also stated that they were not arguing for dismissal, but were moving for a sist. In these circumstances, the question comes to be whether process in the present action should be sisted on the ground of forum non conveniens.

In considering a plea of forum non conveniens, the two propositions following are I think incontrovertible. The first of these propositions was stated by Lord President Inglis, then Lord Justice-Clerk, in Clements v. Macaulay, (1866) 4 Macph. 583, at p. 593, in the following terms:—

"It must never be forgotten, that in cases in which jurisdiction is competently founded, a Court has no discretion whether it shall exercise its jurisdiction or not, but is bound to award the justice which a suitor comes to ask. Index tenetur impertiri indicium suum; and the plea under consideration must not be stretched so as to interfere with this general principle of jurisprudence."

This statement of the law received the approval of Lord Shaw of Dunfermline in his speech in Societé du Gaz de Paris v. Armateurs français, 1926 S C (H L) 13, at p. 19. For the second proposition, which is also vouched by ample authority, I respectfully borrow the language of Lord Kinnear in Sim v. Robinow, (1892) 19 R 665, at p. 668, where he said that "the plea can never be sustained unless the Court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice." Counsel for the defenders conceded that the onus was on the party proponing the plea of forum non conveniens,and this concession was, in my opinion, inevitable.

The argument for the defenders, when presented in its final form, was to the effect that the plea of forum non conveniens will be sustained when one or other of the following situations arises:—(1) Where the defender states and establishes that the Scottish Court is not the appropriate forum and that there is a more appropriate forum in another Court; or (2) where the defender asks the Scottish Court to sist proceedings because there is a pending process in which the same issue is to be tried between the same parties, or parties having the same interest, in a foreign Court of competent jurisdiction. Senior counsel for the defenders stated that he did not seek to bring himself under the first of these two heads, and his whole argument on forum non conveniens was devoted to an attempt to show that the present case fell into the second category. For the purposes of my decision I am prepared to accept this attempt to divide the principle of forum non conveniens into two separate heads or categories, although I am inclined to think that counsel's second category of case is more properly regarded as a particular example of the principle stated under his first head. However that may be, it was clear that counsel intended to present his argument on the basis of the propositions stated by Lord Robertson as Lord Ordinary in Woodbury v. Sutherland's Trustees, 1938 S. C. 689, at p. 692. I should also perhaps at this stage make the further observation in relation to counsel's second category that I must not necessarily be taken as accepting counsel's use of the phrase "or parties having the same interest," unless these words are intended to bear an extremely limited meaning. Indeed, I do not think that any case was cited to me in which the plea of forum non conveniens was sustained where the parties to the Scottish and the foreign action were not the same.

Whatever may be the correct view on the foregoing matters, there is no doubt that, when litigations are depending both in the Scottish and in a foreign Court, weight has been given by the Scottish Court when considering a plea of forum non conveniens to the question of priority. This is illustrated by a number of decisions. In Thomson v. North British and Mercantile Insurance Co., (1868) 6 Macph. 310, Lord Justice-Clerk Patton at p. 313 stated the broad question of principle in the following way:—

"If the question has been fairly and properly brought before a Court of competent jurisdiction, another Court of no higher jurisdiction, and having a similar authority, will, according to the principles of international law, not proceed in the cause, but will sist the cause in order that the first originated process may be followed to its proper conclusion."

This suggests that the question rests on broad principles of comity, but it does not settle the question as to what are the proper tests of priority, and, in particular, what stage of the respective processes is to be considered when determining which is "the first originated process." As will appear, this question has assumed considerable importance in the present case. The next authority in order of date which was cited, Ferguson v. Buchanan, (1890) 18 R. 119, also gives no real assistance as to the test by which priority is to be judged as between Scottish and English proceedings, since in that case, before the Scottish action was even raised, the English proceedings had reached the stage of the appointment of a receiver and an order for inquiry to be made as to the domicile of the deceased. I may also observe that in Ferguson v. Buchanan the terms of the order of the English Court were set forth by the defenders in the closed record in the Scottish action, and were thus brought formally to the notice of the Scottish Court. The observations with regard to Ferguson v. Buchanan by Lord Dunedin in Robinson v. Robinson's Trustees, 1930 S. C. (H. L.) 20, at p. 25, show very clearly, however, that even the procedure of appointing a receiver and ordering inquiry as to domicile would not have been enough to give the English proceedings priority unless the pursuer in the Scottish action was party to them.

Robinson v. Robinson's Trustees, to which I have just referred, is of considerable importance in showing the tests by which priority between litigations in a Scottish and a foreign Court may be ascertained. I would refer in particular to the following passage from the speech of Lord Dunedin at p. 24:

"But I do not really rest anything on that, except to say that, so far as the question of fact is concerned, it is absolutely immaterial whether it is tried in one Court or the other; and I am quite certain that, whether it is tried in an English Court or a Scottish Court, if the Court which is asked to decide on the question of domicile finds that there was already litiscontestation in a Court of the sister country in a proceeding which raised the same matter, they would refuse to go on with the case. Therefore I do not doubt that, if this case had been in the position that there had been litiscontestation in England upon the question of domicile and a case going on there, the Scottish Court would have been refused jurisdiction—and rightly refused."

His Lordship thereafter pointed out that there was no litiscontestation in England, the reason being that, although an originating summons had been taken out, the widow of the deceased, who was the pursuer in the Scottish action, had not been made a party to the English proceedings. His Lordship went on to say at pp. 24–25:

"There was not a good-going plea, to use the Scottish phrase, in England at the time, and therefore I do not myself see that there was the slightest reason why the Scottish Court should refuse jurisdiction."

In my opinion, the passages quoted make it clear that the tempus inspiciendum in the case of both the Scottish and the foreign action is litiscontestation or its equivalent, and that priority in relation to the plea of forum non conveniens means priority of process in terms of litiscontestation or its equivalent in the foreign system of procedure. I notice that Lord Dunedin expressly refers to "litiscontestation in England." I confess that I am unaware whether the legal concept of litiscontestation is in fact recognised in England. Counsel did not enlighten me nor do the pleadings or admitted productions in the present case give any assistance in this respect. It seems unlikely that litiscontestation has a technical meaning in England, since the concept was borrowed from the civil law. Indeed, to judge from the observations of Lord Sumner in Societé du Gaz de Paris v. Armateurs français, 1926 S C (H L) 13, at pp. 20 and 21, the whole subject of forum non conveniensis foreign to English law. Probably Lord Dunedin meant no more by the phrase "litiscontestation in England" than the stage of procedure in England which can be regarded as equivalent to litiscontestation in Scotland, and, whatever the position on this matter may be, it seems reasonable that, when priority of process is being considered, the Court in which the plea of forum non conveniensis stated should endeavour to compare like with like.

The view that priority in relation to the plea of forum non conveniens means priority of process in terms of litiscontestation or its equivalent is, in my opinion, borne out by the decision and by the opinions of the Lord Ordinary and of Lord President Normand (which was in effect the opinion of the Court) in Woodbury v. Sutherland's Trustees . I refer in particular to the opinions of Lord Robertson, the Lord Ordinary, at pp. 692 to 693 and of the Lord President at pp. 695 to 696. Moreover, in the most recent case cited to me in which this problem was touched upon, Babington v. Babington, 1955 S. C. 115, it was expressly recognised that priority of process in terms of litiscontestation is the normal test in such circumstances. See per Lord Carmont at p. 120 and Lord Russell at p. 123. I am further of opinion that when terms such as "first in the field" and "a good-going plea" are used in this connexion, they should be understood as being used in relation to priority in terms of litiscontestation. In so far as Lawford v. Lawford's Trustees, 1927 S. C. 360, may suggest a different test of priority, it is, in my respectful opinion, no longer generally authoritative. See Robinson v. Robinson's Trustees, per Lord Dunedin at p. 26; Woodbury v. Sutherland's Trustees, per Lord Robertson (Ordinary) at pp. 692 to 693, and Lord President Normand at p. 696.

The next question, and it is a most important question in the circumstances which have arisen in the present case, is to determine at what stage litiscontestation or its equivalent takes place in a Scottish and in an English action respectively. The answer to this problem, so far as Scotland is concerned, has been rendered easy for me since counsel for the parties were agreed that in Scotland the date of litiscontestation is the date of lodging defences. For this proposition there is ample authority. In Woodbury v. Sutherland's Trustees, at p. 692, Lord Robertson, the Lord Ordinary, put the matter thus:

"For a Scottish Court the date of litiscontestation is the date of lodging defences—when issue is joined."

Similarly in Gow v. Henry, (1899) 2 F. 48, at p. 52, Lord Young observed:

"In any action in this Court or in the Sheriff Court litiscontestation (which has important effects) commences when defences are lodged and subsists until the action is judicially disposed of so as to be put out of Court."

See also Maclaren, Court of Session Practice, p. 403. In Mackay's Manual of Practice, p. 228, the learned author observes that litiscontestation is that point in the process when the parties join issue in the cause and consent to abide by the event. The passages which I have just quoted demonstrate that in a Scottish Court signeting, service and the entering of appearance are steps in process which, at any rate in normal circumstances, precede litiscontestation. Moreover, in my opinion, the concept of litiscontestation in Scots law in modern times approximates to the simple concept of the Roman law rather than to the technical rules of early Court of Session procedures. "After the pursuer had exhibited his claim, and the defender his defences, before the proper judge, the process or lis was, by the Roman law, said to be contested: and this litiscontestation was considered as a judicial quasi-contract entered into between the parties, by which both of them agreed to submit to refer the cause to the decision of the judge." Erskine, IV, 1, 69. In the early Roman system the contract was express, since the practice was for each party at the end of the preliminary proceedings before the magistrate to call bystanders to witness that they submitted the matter to the decision of the judge. I have dealt with these matters in some detail, not because there was any serious dispute between the parties as to what constituted litiscontestation in Scotland, but because it seems desirable to seek some guidance in principle when one is searching for the equivalent of litiscontestation in the English proceedings referred to on record. In principle, litiscontestation takes place when issue is joined. In modern Scottish practice, litiscontestation takes place when defences are lodged. It is at this stage that a decree in foro first becomes a possibility. Both parties become subject to the procedure of the Court and neither can escape from its toils until the action is judicially disposed of. In a realm of law where the use of expressions such as "first in the field" has tended to produce ambiguity, the analogy of the sporting event or tournament must be used with caution, but if one uses such an analogy as an illustration, litiscontestation suggests the stage at which two sides join issue in the field of play or battle under the eye of a neutral referee or umpire. The challenge (service) and the acceptance of the challenge (entering appearance) occur at an earlier stage.

Having thus endeavoured to establish the legal principle, I return to the precise circumstances of the present case. One matter is plain, and that is that litiscontestation in the Scottish proceedings took place on 14th March 1961 when the defences to the present action were lodged. I did not understand either of the parties to dispute this. The controversy in the end of the day was confined to the date on which litiscontestation or its equivalent took place in the English proceedings. One naturally looks for some assistance on this point to the defenders' averments in support of the plea of forum non conveniens, but unfortunately the information given in answer 6 is both meagre and unspecific, even when eked out by reference to the documents covered by the admissions in the joint minute which was lodged in the course of the discussion in the Debate Roll. The only other documentary information which was afforded to me was the report of the case of Macaulay (A.) (Tweeds) Limited v. Independent Harris Tweed Producers Limited in [1961] Patent Cases Reports, Part 8, p. 184, which was not one of the admitted documents, but which was referred to by counsel for both parties in the course of the discussion, I have read this report with care, but any comment I may make with regard to it must be extremely cautious, since I do not profess to be familiar with the rules of English practice which appear to have formed the subject matter of what I shall call the preliminary proceedings in the Chancery Division of the High Court of Justice. I should perhaps add that I have not had the advantage of being shown any opinion or advice by a person skilled in English law and practice bearing on these matters, There is precedent for adopting the expedient of lodging such material in cases where a plea of forum non conveniens has been the subject of argument, see for example, Robinson v. Robinson's Trustees, 1929 S. C. 360, per Lord President Clyde at p. 366.

One admitted date does emerge from the pleadings, and that is that the English action was raised on or about 6th July 1960, although it would perhaps be more accurate to say that the writ was issued then, it being apparent that service was not effected until later. The summons in the present action was not signeted until 10th February 1961, by which date it seems clear that service had been effected on all the defendants in the English action. At any rate, I am prepared to assume this. I am also prepared to assume that appearance was entered in the English proceedings on a date prior to that on which appearance was entered in the present action, although I observe from the judgment of Cross, J., in [1961] Patent Cases Reports at p. 189, that the appearances entered by the Scottish defendants in the English action were conditional. As I have already pointed out, what one seeks for in the present context is not, in my opinion, priority in terms of the issue of the writ or signeting as the case may be, or priority in terms of service, or priority in terms of entering appearance, but priority of process in terms of litiscontestation. One naturally therefore looks to see when defences were delivered by the defendants in the English action, and the admitted documents (c), (d) and (e) in No. 11 of process provide the answer, namely in the case of all five defendants, 17th March 1961. That was three days after litiscontestation in the present action. On the face of the pleadings and the admitted documents, therefore, it appears that the present action has priority by a narrow margin over the English action in terms of litiscontestation or its equivalent. If this is so, the single argument upon which senior counsel for the defenders in the end relied must fail.

It was suggested with some plausibility that it would be incongruous to hold that there was no "good-going plea" in England at the time of the preliminary proceedings in the Chancery Division in December 1960 and February 1961. This perhaps shows that it is safer to avoid figurative expressions in this connexion, since if one adheres to the concept of litiscontestation or its equivalent it seems fairly clear that, at the stage of the preliminary proceedings, not only had litiscontestation not taken place in England, but the Scottish defendants were endeavouring to procure that, so far as they were concerned, it should never take place in the English action. According to the report, the purpose of the application was to have service of the writ on the Scottish defendants set aside and to have the proceedings against the English defendants stayed. None of the defendants had yet delivered his defences, and they seem to have been contending, in effect, that they did not need to accept the plaintiff's challenge. Indeed, I understand from the report that the Scottish defendants were maintaining in a separate process or application that the challenge should be set aside by the Court. Accordingly, I do not think that this particular point based on the preliminary proceedings in the Chancery Division has any real substance.

It was also argued that Cross, J., had in effect decided the question of forum non conveniens in a sense adverse to the pursuers in the present action. I do not think from my reading of the report of his judgment that this is so, since it is my impression that the decision proceeded upon an application of purely English rules of practice relating to service out of the jurisdiction. The principles underlying these particular rules of English practice appear to me to differ from the principles underlying the Scottish concept of forum non conveniens. In any event, it is the clear duty of the Scottish Court to determine questions such as have arisen in the present case according to its own law and practice subject to the broad principles of comity to which I have already referred.

In the whole circumstances, I have reached the conclusion that the plea of forum non conveniens is not well founded. In view of the way in which the defenders' argument was presented it is enough for me to say, as did Lord Russell in Babington v. Babington, at p. 123, that, in my opinion, the defenders' counsel have not established—and the onus is on them—that litiscontestation, or what may correspond to that stage in the English Court, has taken place there earlier than in the proceedings in the Court of Session. I am, however, inclined to go further. Ex concessu the defenders cannot show that the English forumis more appropriate on other grounds, and they have therefore put the whole weight of their argument on the proposition that the English action has priority, and that process in the Scottish action should therefore be sisted. But, in my opinion, judged by the criterion which has now been approved in a series of Scottish decisions, it is the Scottish action which has priority. Moreover, even if one were to take the broad view that the English and Scottish actions were at the stage of litiscontestation "running neck and neck" (to use the expression of Lord Carmont in Babington v. Babington at p. 120), it was not shown, and indeed it was admitted not to have been shown, that the English forum is the more appropriate.

Although what I have already said is sufficient for my decision on the plea of forum non conveniens, I may add that I would have found it difficult to sustain the plea for several other reasons. It is clear from the averments in article 6 of the condescendence and answer 6 that the whole parties to the Scottish and English proceedings are not the same. For example, one of the pursuers in the present action is not a party to the English action, and two of the defendants in the English action are not parties to the present action. I am also of opinion that, although one of the main issues of fact may be common to both the English and the Scottish actions, the latter is designed to have a wider geographical effect and, in the case at least of the conclusion for interdict, would provide a different remedy from that sought in England. I mention these additional factors in order to show that they have not been overlooked, and a further general consideration to which I would have been inclined to give weight is the fact that the Scottish Court has undoubted jurisdiction over all the defenders on ordinary grounds of jurisdiction, whereas, whatever the fact may be, it was not demonstrated to me that the same applies to the Scottish defendants before the English Court.

In repelling the plea of forum non conveniens, I am conscious that there may be a possibility of conflict of jurisdiction arising through the Scottish and English proceedings going on concurrently. It is always unfortunate if such difficulties arise, although I do not think they are inevitable in the present case, and no doubt the parties will endeavour to avoid or minimise them by the exercise of discretion. The possibility of a conflict of jurisdiction, is however, as Lord President Clyde pointed out in Robinson v. Robinson's Trustees, at p. 367, not a good ground in itself for declining jurisdiction, since otherwise the plea of forum non convenienswould have to be sustained in all cases in which it was pleaded. Nor is this the first case in which English and Scottish actions have been allowed to proceed concurrently. See for example Woodbury v. Sutherland's Trustees, per Lord President Normand at p. 697.

(His Lordship then went on to consider questions of relevancy with which this report is not concerned).

On 27th March 1962 the Vacation Judge (Lord Guthrie) allowed the record to be amended in terms of a minute of amendment for the pursuers and answers thereto for the defenders.

The defenders reclaimed against the interlocutor of the Lord Ordinary and the reclaiming motion was heard before the First Division (without Lord Sorn) on 24th and 25th May 1962.