#5002 - Maharanee Of Baroda V. Wildenstein - Conflict of Laws BCL

Maharanee of Baroda v. Wildenstein

Facts

In 1965 the plaintiff, an Indian princess resident in France but with long links with England and other countries, bought for 32,920 in France a painting stated to be by the 17th-century French artist François Boucher from the defendant, a French citizen and world-famous art expert connected with art dealer companies in London and New York. In December 1967 the painting was offered for sale by Sothebys in London, it was shown to an English expert, who was said to be of opinion that it was not an original Boucher - In September 1969 the plaintiff issued a specially indorsed writ in England claiming against the defendant rescission of the contract, return of the price, and damages; but it was not served on him until June 1970 when he was fleetingly in England for the Ascot races. He entered an unconditional appearance but applied to the master in chambers for an order that the action be dismissed as vexatious and an abuse of the process of the court.

Those advising the Maharanee waited till he came over here. In June 1970, M. Daniel Wildenstein came over for the Ascot races. On Saturday, June 20, 1970, the writ was served on him at the racecourse at Ascot. His solicitors entered an appearance. They now seek to set the writ aside. The master and the judge have set it aside.

Holding

Lord Denning

In this case the writ has been properly served on the defendant in this country. This makes the case very different from those in which the defendant is in a foreign country and the plaintiff has to seek leave to serve him out of the jurisdiction. It is also different from those cases in which the plaintiff has already started an action in another country, and the question is whether he should be allowed to start another action in this country on the same subject matter. In this case the plaintiff has validly invoked the jurisdiction of our courts in this, the one and only action she has brought.

We have to apply that principle to this case when the plaintiff was only able to serve the defendant because he happened to be in this country on a short visit.

The judge seems to have taken that instance given by Sir Gorell Barnes P. and founded on it a presumption which he stated in these words: "But a presumption arises that the proceedings are oppressive if the defendant is served when he appears to be here on a visit." I cannot agree with that statement. There is no such presumption. If a defendant is properly served with a writ while he is in this country, albeit on a short visit, the plaintiff is prima facie entitled to continue the proceedings to the end. He has validly invoked the jurisdiction of the Queen's courts; and he is entitled to require those courts to proceed to adjudicate upon his claim. The courts should not strike it out unless it comes within one of the acknowledged grounds, such as that it is vexatious or oppressive, or otherwise an abuse of the process of the court: see R.S.C., Ord. 18, r. 19. It does not become within those grounds simply because the writ is served on the defendant while he is on a visit to this country. If his statement of claim discloses a reasonable cause of action, he is entitled to pursue it here, even though it did arise in a foreign country. It is not to be stayed unless it would plainly be unjust to the defendant to require him to come here to fight it, and that injustice is so great as to outweigh the right of the plaintiff to continue it here.

Mr. Wilmers likened this case to a road accident in Rome, when two Italian citizens were in collision. Suppose that one of them was served with an English writ while on a short holiday in England. I would agree that such an action would be stayed. The issue would be solely Italian. But here the main issue is whether this painting was a genuine Boucher or not. That issue is one of fact which is crucial to the case in French law as well as in English law. It is not solely a French issue. The art world is so international in character today that this issue has itself something of an international character. The parties on either side are citizens of the world. The Maharanee has associations, not only with France, but also with India, England and Ireland. M. Wildenstein himself has, of course, close associations with France, but also with America, England and Ireland. He was for years the principal director of the English company of Daniel Wildenstein Ltd., and was so at the beginning of this action. He has now ceased to be a director, but he is still a shareholder. If anybody could be said to have an international reputation, it is he.

Furthermore, there might be difficulties, if not injustice, in requiring the Maharanee to go to France to seek redress. We are told that the courts of France appoint their own court experts and might hesitate about receiving the opinion of experts from England. It would be a matter for their discretion. In any case, the French courts might not themselves see the witnesses or hear them cross-examined, but might only read their reports. It is true that even in England there may be difficulties. It appears that both the experts for the Maharanee are not willing to give evidence and may have to be subpoenaed. But there would be no difficulty in M. Wildenstein's experts, such as Professor Ananoff, giving evidence here orally with all the advantages that that carries with it. So there is no injustice in that regard in having it tried in England.

Apart from the admission of evidence, there is the...