#5007 - Aerospatiale V. Lee Kui Jack - Conflict of Laws BCL

Aerospatiale v. Lee Kui Jack

Facts

On 16 December 1980 a Puma 330J helicopter crashed near Kuala Belait in Brunei. There were 12 people on board: all were killed. Among those killed was Yong Joon San (home was in Brunei).

The Puma helicopter which crashed was manufactured by S.N.I.A.S. in France in 1978. S.N.I.A.S. is a French company in the ownership of the French state. The helicopter in question was owned by an English company, British and Commonwealth Shipping Co. (Aviation) Ltd. ("British and Commonwealth"); but it was at all material times operated and serviced by Bristow Helicopters Malaysia Sdn. Bhd. ("Bristow Malaysia"), an associated company of Bristow Helicopters Ltd. ("Bristow U.K."), and was under contract to Sarawak Shell Bhd. and so was based at Miri Airport in Sarawak.

Cause of the accident was identified as a problem with the maintenance of the gearbox of the helicopter.

Proceedings were started by Yong Joon San's widow, Lee Kui Jak, on her own behalf as widow and (with her husband's brother) as administrator of her husband's estate.

Three sets of proceedings:

Three sets of proceedings were started, in December 1981, in Brunei, France, and Texas respectively. The Brunei proceedings were issued on 9 December 1981 against Bristow Malaysia as first defendants and S.N.I.A.S. as second defendants; they were served on S.N.I.A.S. in December 1982. It was alleged that Bristow Malaysia were solely responsible for the accident; as against S.N.I.A.S., allegations were made of negligent design and manufacture, but no particulars were given. The French proceedings were against S.N.I.A.S. alone. No further steps were taken in those proceedings, and they have been discontinued long ago. The Texas proceedings were also issued on 9 December 1981. Among the plaintiffs was a Richard J. Kittrell; it appears that he is a New York attorney who was appointed administrator for the purpose of the proceedings, and was as such simply a nominal plaintiff. There were eight defendants in the Texas proceedings, who fall into three groups: (1) S.N.I.A.S., together with two United States associates of S.N.I.A.S. - Aerospatiale Helicopter Corporation ("A.H.C."), a Texas corporation, and European Aerospace Corporation ("E.A.C."), a Delaware corporation. (2) Bristow Malaysia, together with two United States associated companies - Bristow Helicopters Inc., a Connecticut corporation, and Bristow Offshore Helicopters Inc., a Texas corporation. (3) Sarawak Shell Bhd., together with Shell Oil Co., a Delaware corporation. The plaintiffs' claim against S.N.I.A.S. was advanced under the Texas Wrongful Death Statute (section 71.031 of the Texas Civil Practice and Remedies Code)- jurisdiction being asserted on the basis that S.N.I.A.S. were doing business in Texas by selling their products to purchasers in Texas. Texas proceeedings were initiated because of (1) the more favourable Texas law on product liability, and (2) the higher level of damages awarded in courts in the United States.

Settlement with Bristow and Shell Companies: In the course of 1983, an agreement was reached whereby all proceedings as between the plaintiffs on the one hand, and the Bristow companies and the Shell companies on the other hand, were settled. A general release was granted to these companies by the plaintiffs and by Richard Kittrell. The settlement, together with an apportionment between the widow and her three children, was approved by the Chief Registrar in Brunei on 20 June 1984. S.N.I.A.S. were not parties to the settlement, and their Lordships were told that they were never invited to be parties to it.

In December 1986, having failed in their attempts to obtain dismissal of the proceedings against them and their associated companies in Texas, S.N.I.A.S. turned their attention to the possibility of obtaining an injunction from the Brunei court restraining the plaintiffs from continuing the Texas proceedings.

Undertakings by parties in Brunei Proceedings: Furthermore, during the hearing undertakings were given by both sides, no doubt with a view to fortifying their respective positions. The plaintiffs first stated that, if S.N.I.A.S. wished for trial by judge alone in Texas, the plaintiffs would agree to such a trial. Second, they accepted that, the law of Brunei being applicable both as to liability and quantum in respect of the trial of the matter in Texas, no claim lay against S.N.I.A.S. either (a) in consequence of strict liability, or (b) for punitive damages. SNIAS also gave undertakings including the following: (a) That the Texas proceedings shall be permitted to continue until completion of pre-trial discovery; (b) To cooperate in every practicable way in the admission to the Bar of Brunei Darussalam as ad hoc members for the purposes of this action of: William Thomas Jacks and Richard Warner Mithoff.

SNIAS claiming contribution from Bristow: In the course of the hearing before the Court of Appeal, a contribution notice was served on Bristow Malaysia by S.N.I.A.S. It has been suggested that this was in fact too late, because Bristow Malaysia were no longer parties to the action. But this was disputed, and in any event Bristow Malaysia have indicated their readiness to accept service within the jurisdiction of the Brunei court of any third party notice issued by S.N.I.A.S. It appears that, whereas Bristow Malaysia are vigorously resisting Texas jurisdiction on the ground that they have never done business in Texas, they have indicated their readiness to submit to the jurisdiction of the courts in Brunei to enable the whole case to be determined there. On the same day, 18 March 1987, S.N.I.A.S. accepted service of a writ issued against them on 16 December 1986 (one day before the expiry of the limitation period) by the owners of the crashed helicopter together with the insurers of the hull.

Holding

Lord Goff

Basic Principles

First, the jurisdiction is to be exercised when the "ends of justice" require it.

Second, where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed.

Third, it follows that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy.

Fourth, it has been emphasised on many occasions that, since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution.

Jurisdiction to protect integrity of English Proceedings

Their Lordships were helpfully taken through many of the authorities by counsel in the present case. One such category of case arises where an estate is being administered in this country, or a petition in bankruptcy has been presented in this country, or winding up proceedings have been commenced here, and an injunction is granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets. In such cases, it may be said that the purpose of the injunction is to protect the jurisdiction of the English court. Indeed, one of their Lordships has been inclined to think that such an idea generally underlies the jurisdiction to grant injunctions restraining the pursuit of foreign proceedings: but their Lordships are persuaded that this is too narrow a view.

Vexatious and Oppressive

Another important category of case in which injunctions may be granted is where the plaintiff has commenced proceedings against the defendant in respect of the same subject matter both in this country and overseas, and the defendant has asked the English court to compel the plaintiff to elect in which country he shall alone proceed. In such cases, there is authority that the court will only restrain the plaintiff from pursuing the foreign proceedings if the pursuit of such proceedings is regarded as vexatious or oppressive.

The old principle that an injunction may be granted to restrain the pursuit of foreign proceedings on the grounds of vexation or oppression, though it should not be regarded as the only ground upon which the jurisdiction may be exercised, is of such importance, and of such apparent relevance in the present case, that it is desirable to examine it in a little detail. As with the basic principle of justice underlying the whole of this jurisdiction, it has been emphasised that the notions of vexation and oppression should not be restricted by definition.

InPeruvian Guano Co. v. Bockwoldt(1883) 23 Ch.D. 225, 230, Jessel M.R. gave two examples of vexatious proceedings. One, which he called pure vexation, occurs when the proceedings are so utterly absurd that they cannot possibly succeed. Another occurs when the plaintiff, not intending to annoy or harass the defendant, but thinking he could get some fanciful advantage, sues him in two courts at the same time under the same jurisdiction. He went on to say that similar, although not perhaps the same, considerations apply in a case where the actions are brought, one in a foreign country and one in this country. Referring toMcHenry v. Lewis, 22 Ch.D. 397, he summed up the position as follows: that it is not vexatious to bring an action in each country where there are substantial reasons of benefit to the plaintiff. Now, it is easy to see why in many cases this is so, as indeed the 19th century cases show. For example, there may be assets available for execution in a foreign country, or another party may only be amenable to the jurisdiction of the...