*403Pearce v Ove Arup Partnership Ltd. and OthersCourt of
Appeal21 January 1999[2000] 3 W.L.R. 332[2000] Ch. 403Roch L.J. ,
Chadwick L.J. and May L.J.1998 Nov. 23, 24, 25; 1999 Jan.
21Conflict of LawsCopyrightJurisdiction under European
ConventionAction in England for infringement of Dutch copyrightOne
defendant domiciled in United KingdomEnglish court having
jurisdictionWhether claim for infringement of Dutch copyright
justiciable in EnglandCivil Jurisdiction and Judgments Act 1982 (c.
27), Sch. 1(as substituted byCivil Jurisdiction and Judgments Act
1982 (Amendment) Order 1990 (S.I. 1990 No. 2591), art. 6(1) Berne
Convention of the International Union for the Protection of
Literary and Artistic Works 1886 as revised (1990) (Cm. 1212), art.
5(2)12In 1986 the plaintiff created original drawings and plans for
a town hall as an exercise while he was an architectural student in
London. The second defendant, his tutor who was an architect and
director of the third defendant, was alleged to have taken copies
of the drawings in 1986. In 1996 the plaintiff brought an action
for breach of his United Kingdom and Dutch copyright, alleging that
the second and third defendants had used his drawings in designing
a building in Rotterdam constructed between 1990 and 1993 by the
first defendant, a firm of civil engineers domiciled in the United
Kingdom, and owned by the fourth defendant. The plaintiff sought
injunctions to restrain infringement of both copyrights and damages
or an account of profits. The defendants applied to strike out the
statement of claim as an abuse of process on the grounds that
actions for breach of Dutch copyright were not justiciable in the
English courts and that in any event the action was purely
speculative. The judge accepted that the English court had
jurisdiction under articles 2 and 6 of the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters 1968 to entertain a claim for breach of Dutch
copyright against a defendant domiciled in the United Kingdom or in
contracting states but struck out the action as speculative and an
abuse of process. The plaintiff appealed, and the defendants by
respondent's notices sought to affirm the judge's ruling on the
ground that the alleged infringements of Dutch copyright were not
actionable torts under English law.On the appeal:Held, allowing the
appeal, that English conflict of law rules did not require the
court to regard as local, and therefore to refuse to entertain, a
claim in respect of the alleged infringement, by acts done outside
the United Kingdom in a state which was a contracting party to the
Convention of 1968, of a statutory intellectual property right
granted by that state; that, in those circumstances, the court was
not required by the double actionability rule to hold that the
claim was bound to fail on the basis that acts done in Holland
could not amount to an infringement of a United Kingdom copyright;
that the provisions of the Convention of 1968 were not excluded
from applying to such a claim by article 5(2) of the Berne
Convention of the International Union for the Protection of
Literary and Artistic Works 1886 ,*404which did not seek to confer
jurisdiction relating to infringement of copyright on the courts of
one country to the exclusion of any other but left it to the courts
in the country where proceedings were brought to decide whether the
claim for protection should be upheld; that, therefore, since the
English court had to accept jurisdiction against the defendants
under article 6(1) of the Convention of 1968 and could entertain an
action for breach of Dutch copyright, the plaintiff had been
entitled to sue in England for such a breach; that, on the evidence
before him, the judge had erred in striking out the claim as
speculative and an abuse of process; and that, accordingly, the
action should be allowed to proceed to trial with the plaintiff's
portfolio of drawings used as a forensic aid to issues of
similarity (post, pp. 419F, 422G-H, 436C-D, 442C-F, 444F-445B).Red
Sea Insurance Co. Ltd. v. Bouygues S.A. [1995] 1 A.C. 190, P.C.
applied.Phillips v. Eyre (1870) L.R. 6 Q.B. 1 andBritish South
Africa Co. v. Companhia de Moambique [1893] A.C. 602, H.L.(E.)
considered.Def Lepp Music v. Stuart-Brown [1986] R.P.C.
273andTyburn Productions Ltd. v. Conan Doyle [1991] Ch. 75
distinguished.Decision of Lloyd J. [1997] Ch. 293; [1997] 2 W.L.R.
779; [1997] 3 All E.R. 31 reversed.The following cases are referred
to in the judgment of the court: Bauman v. Fussell [1978] R.P.C.
485, C.A.. Boston Scientific Ltd. v. Cordis Corporation
(unreported), 18 November 1997; Court of Appeal (Civil Division)
Transcript No. 1838 of 1997, C.A. . Boys v. Chaplin [1968] 2 Q.B.
1; [1968] 2 W.L.R. 328; [1968] 1 All E.R. 283, C.A..;[1971] A.C.
356; [1969] 3 W.L.R. 322; [1969] 2 All E.R. 1085, H.L.(E.). British
South Africa Co. v. Companhia de Moambique [1892] 2 Q.B. 358,
C.A..;[1893] A.C. 602, H.L.(E.) . Deeks v. Wells [1933] 1 D.L.R.
353, P.C. . Def Lepp Music v. Stuart-Brown [1986] R.P.C. 273
Doulson v. Matthews (1792) 4 Durn. &; E. 503 Fort Dodge Animal
Health Ltd. v. Akzo Nobel N.V. [1998] F.S.R. 222, C.A.. Hesperides
Hotels Ltd. v. Aegean Turkish Holidays Ltd. [1979] A.C. 508; [1978]
3 W.L.R. 378; [1978] 2 All E.R. 1168, H.L.(E.). Khan v. Kensington
and Chelsea Royal London Borough Council (unreported), 10 October
1990; Court of Appeal (Civil Division) Transcript No. 850 of 1990,
C.A. . Ladd v. Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R.
745, C.A.. Langdale v. Danby [1982] 1 W.L.R. 1123; [1982] 3 All
E.R. 129, H.L.(E.). Lawrance v. Lord Norreys (1890) 15 App.Cas.
210, H.L.(E.) . Mlnlycke A.B. v. Procter & Gamble Ltd. [1992] 1
W.L.R. 1112; [1992] 4 All E.R. 47, C.A.. Norbert Steinhardt and Son
Ltd. v. Meth (1961) 105 C.L.R. 440 Phillips v. Eyre (1870) L.R. 6
Q.B. 1 Potter v. Broken Hill Pty. Co. Ltd. (1906) 3 C.L.R. 479 Red
Sea Insurance Co. Ltd. v. Bouygues S.A. [1995] 1 A.C. 190; [1994] 3
W.L.R. 926; [1994] 3 All E.R. 749, P.C.. Reg. v. International
Stock Exchange of the United Kingdom and the Republic of Ireland
Ltd., Ex parte Else (1982) Ltd. [1993] Q.B. 534; [1993] 2 W.L.R.
70; [1993] 1 All E.R. 420, C.A..*405*405 Rudra v. Abbey National
Plc. (1998) 76 P. &; C.R. 537, C.A. . Skinner v. East India Co.
(1666) 6 St.Tr. 710 Tyburn Productions Ltd. v. Conan Doyle [1991]
Ch. 75; [1990] 3 W.L.R. 167; [1990] 1 All E.R. 909 Weller v. Dunbar
(unreported), 27 January 1984; Court of Appeal (Civil Division)
Transcript No. 18 of 1984, C.A.. Wenlock v. Moloney [1965] 1 W.L.R.
1238; [1965] 2 All E.R. 871, C.A.. Williams v. Attridge Solicitors
(unreported), 8 July 1997; Court of Appeal (Civil Division)
Transcript No. 1144 of 1997, C.A. . Woodhouse v. Consolidated
Property Corporation Ltd. (1992) 66 P. &; C.R. 234, C.A. .The
following additional cases were cited in argument: AM Computer
Technology Ltd. v. 4-Sight Ltd. (unreported), 14 January 1992,
Parker J. A-Z Couriers Ltd. v. Comspec Computer Software Ltd.
(unreported), 9 November 1988, Aldous J . Buttes Gas and Oil Co. v.
Hammer [1982] A.C. 888; [1981] 3 W.L.R. 787; [1981] 3 All E.R. 616,
H.L.(E.). Canada Trust Co. v. Stolzenberg (No. 4) , The Times, 14
May 1998; Court of Appeal (Civil Division) Transcript No. 665 of
1998, C.A. . Chiron Corporation v. Murex Diagnostics Ltd. (No. 2)
[1994] F.S.R. 187, C.A.. Coin Controls Ltd. v. Suzo International
(U.K.) Ltd. [1999] Ch. 33; [1998] 3 W.L.R. 420; [1997] 3 All E.R.
45 Davey v. Bentinck [1893] 1 Q.B. 185, C.A.. Duijnstee v.
Goderbauer (Case 288/82) [1983] E.C.R. 3663, E.C.J. . Duke v.
Reliance Systems Ltd. [1988] Q.B. 108; [1987] 2 W.L.R. 1225; [1987]
2 All E.R. 858, C.A.. Handelskwekerij G.J. Bier B.V. v. Mines de
Potasse d'Alsace S.A. (Case 21/76) [1978] Q.B. 708; [1977] 3 W.L.R.
479; [1976] E.C.R. 1735, E.C.J.. Harrods (Buenos Aires) Ltd. (No.
2), In re [1992] Ch. 72; [1991] 3 W.L.R. 397; [1991] 4 All E.R.
348, C.A.. James Burrough Distillers Plc. v. Speymalt Whisky
Distributors Ltd. [1991] R.P.C. 130 Kalfelis v. Bankhaus Schrder,
Mnchmeyer, Hengst and Co. (Case 189/87) [1988] E.C.R. 5565, E.C.J..
Kongress Agentur Hagen G.m.b.H. v. Zeehaghe B.V. (Case C-365/88)
[1990] E.C.R. I-1845, E.C.J. . L.A. Gear Inc. v. Gerald Whelan
& Sons Ltd. [1991] F.S.R. 670 Langley v. North West Water
Authority [1991] 1 W.L.R. 697; [1991] 3 All E.R. 610, C.A..
McDonald's Corporation v. Steel [1995] 3 All E.R. 615, C.A..
Mecklermedia Corporation v. D.C. Congress G.m.b.H. [1998] Ch. 40;
[1997] 3 W.L.R. 479; [1998] 1 All E.R. 148 Morelle Ltd. v. Wakeling
[1955] 2 Q.B. 379; [1955] 2 W.L.R. 672; [1955] 1 All E.R. 708,
C.A.. Plastus Kreativ A.B. v. Minnesota Mining and Manufacturing
Co. [1995] R.P.C. 438 Rutten v. Cross Medical Ltd. (Case C-383/95)
[1997] I.C.R. 715; [1997] E.C.R. I-57; [1997] All E.R. (E.C.) 121,
E.C.J.. Sanicentral G.m.b.H. v. Collin (Case 25/79) [1979] E.C.R.
3423, E.C.J. . Shevill v. Press Alliance S.A. (Case C-68/93) [1995]
2 A.C. 18; [1995] 2 W.L.R. 499; [1995] All E.R. (E.C.) 289,
E.C.J..*406*406 Star News Shops Ltd. v. Stafford Refrigeration Ltd.
[1998] 1 W.L.R. 536; [1998] 4 All E.R. 408, C.A.. Upjohn Co. v. T.
Kerfoot & Co. Ltd. [1988] F.S.R. 1 Williams v. Glasbrook
Brothers Ltd. [1947] 2 All E.R. 884, C.A..Appeal from Lloyd J.By a
writ endorsed with a statement of claim dated 25 September 1996 and
an amended statement of claim dated 30 October 1996 the plaintiff,
Gareth Pearce, brought an action against the defendants, (1) Ove
Arup Partnership Ltd., a firm of civil engineers domiciled in the
United Kingdom, (2) Remment Koolhaas, an architect, (3) Office for
Metropolitan Architecture (O.M.A.) Stedebouw B.V., of which the
second defendant was a director, and (4) the City of Rotterdam,
for, inter alia, injunctions restraining the defendants from
infringing the plaintiff's United Kingdom and Dutch copyright in
drawings and plans for a town hall in Docklands, London in the
construction of the Kunsthal in Rotterdam and inquiries as to
damages for infringement or an account of profits.By a notice of
motion dated 16 December 1996 the second, third and fourth
defendants sought, inter alia, an order striking out the amended
statement of claim on the grounds that the alleged acts of
infringement of Dutch copyright did not constitute actionable torts
under English law; alternatively that the allegations were
speculative; or alternatively that the action was frivolous,
vexatious and an abuse of the process of the court and had been
brought outside the statutory limitation period. By an order dated
7 March 1997 Lloyd J. struck out the plaintiff's claim as
speculative and as an abuse of process.By a notice of appeal dated
7 September 1997 with leave granted by Aldous L.J. on 15 August
1997 the plaintiff appealed, seeking an order (i) to dismiss the
application of the second, third and fourth defendants to strike
out the amended statement of claim and (ii) to strike out sentences
from the defences of the first to fourth defendants which alleged
that infringement of Dutch copyright was not an actionable tort in
English law as disclosing no reasonable defence, on the grounds,
inter alia, that the judge had erred (1) in law by determining on
the striking-out application whether there was sufficient
similarity between the plaintiff's plans and the defendants' plans,
which should only have been determined at the trial of the action;
(2) in failing to pay regard to the principle that the power to
strike out should only be exercised in plain and obvious cases or
where it was beyond doubt that the action could not succeed; (3) in
finding there was insufficient similarity between the plaintiff's
plans and the defendants' plans and the hall as built to give rise
to an inference of copying; (4) in failing to pay sufficient regard
to the fact that the plaintiff claimed that the plans had been
physically or mechanically copied; (5) in finding features
militating against the inference of copying when there was an
increased likelihood of copying; and (6) in placing undue weight on
the evidence of the second defendant.By applications dated 23
September 1997 and 29 September 1997 the first, second, third and
fourth defendants sought leave to serve respondent's notices
seeking to affirm the judge's order on the alternative*407ground
that infringement of Dutch copyright was not justiciable in English
law.At the hearing the plaintiff sought leave to adduce further
evidence.The facts are stated in the judgment of the court.Julia
Clarkfor the plaintiff. Where there has not been a trial or hearing
on the merits,Ladd v. Marshall [1954] 1 W.L.R. 1489does not apply:
seeStar News Shops Ltd. v. Stafford Refrigeration Ltd. [1998] 1
W.L.R. 536. An application to strike out is not a hearing on the
merits: see Williams v. Attridge Solicitors (unreported), 8 July
1997; Court of Appeal (Civil Division) Transcript No. 1144 of 1997
.A decision of a two-judge Court of Appeal Williams v. Attridge is
binding on the full court sinceBoys v. Chaplin [1968] 2 Q.B. 1does
not reflect current practice: seeLangley v. North West Water
Authority [1991] 1 W.L.R. 697. The decision in Williams v. Attridge
was not per incuriam. [Reference was made toDuke v. Reliance
Systems Ltd. [1988] Q.B. 108;Woodhouse v. Consolidated Property
Corporation Ltd. (1992) 66 P. & C.R. 234andLangdale v. Danby
[1982] 1 W.L.R. 1123;Williams v. Glasbrook Brothers Ltd. [1947] 2
All E.R. 884;Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379; Khan v.
Kensington and Chelsea Royal London Borough Council (unreported),
10 October 1990 ; Court of Appeal (Civil Division) Transcript No.
850 of 1990;Weller v. Dunbar (unreported), 27 January 1984; Court
of Appeal (Civil Division) Transcript No. 18 of 1994 andRudra v.
Abbey National Plc. (1998) 76 P. & C.R. 537.]Justice requires
the admission of relevant and credible evidence not adduced at
trial through a legal adviser's mistake. There was, in any event, a
limited opportunity for putting the plaintiff's evidence before the
judge: compare Canada Trust Co. v. Stolzenberg (No. 4), The Times,
14 May 1998 ; Court of Appeal (Civil Division) Transcript No. 665
of 1998.The test to apply to a decision to strike out is whether
the judge was plainly wrong: seeChiron Corporation v. Murex
Diagnostics Ltd. (No. 2) [1994] F.S.R. 187. A plaintiff should not
be deprived of the right to trial unless the pleading is "incurably
bad:"McDonald's Corporation v. Steel [1995] 3 All E.R. 615. The
action should not be struck out even if the allegation in the
pleadings is improbable and difficult to believe: see Lawrance v.
Lord Norreys (1890) 15 App.Cas. 210 . There should not be a minute
and protracted examination of the documents and facts of the case:
seeWenlock v. Moloney [1965] 1 W.L.R. 1238.In the cases relied on
by the defendants before the judge there was no factual dispute
between the parties which the judge had to resolve: seeUpjohn Co.
v. T. Kerfoot & Co. Ltd. [1988] F.S.R. 1; A-Z Couriers Ltd. v.
Comspec Computer Software Ltd. (unreported), 9 November 1988 and
A.M. Computer Technology Ltd. v. 4-Sight Ltd. (unreported), 14
January 1992 . Here, the only issue with which the judge was
concerned was sufficient similarity, a question of mixed fact and
law which is inherently unsuitable for determination in an
interlocutory application.The defendants' cross appeal is unlikely
to succeed: seeFort Dodge Animal Health Ltd. v. Akzo Nobel N.V.
[1998] F.S.R. 222. [Reference was also made toCoin Controls Ltd. v.
Suzo International (U.K.) Ltd. [1999] Ch. 33; Boston Scientific
Ltd. v. Cordis Corporation (unreported), 18 November 1997 ; Court
of Appeal (Civil Division) Transcript No. 1838 of 1997;*408Mlnlycke
A.B. v. Procter & Gamble Ltd. [1992] 1 W.L.R. 1112and Duijnstee
v. Goderbauer (Case 288/82) [1983] E.C.R. 3663 .]The judge was
correct in holding that the rule inBritish South Africa Companhia
de Moambique [1892] 2 Q.B. 358and the double actionability rule did
not preclude the court from hearing an action which, under the
Convention of 1968, may or must be brought in the English court:
seeHandelskwekerij G. J. Bier B.V. v. Mines de Potasse d' Alsace
S.A. (Case 21/76) [1978] Q.B. 708;Kalfelis v. Bankhaus Schrder,
Mnchmeyer, Hengst and Co. (Case 189/87) [1988] E.C.R. 5565;
Sanicentral G.m.b.H. v. Collin (Case 25/79) [1979] E.C.R. 3423 ;
Kongress Agentur Hagen G.m.b.H. v. Zeehaghe B.V. (Case C-365/88)
[1990] E.C.R. 1-1845 ;Shevill v. Press Alliance S.A. (Case C-68/93)
[1995] 2 A.C. 18andRutten v. Cross Medical Ltd. (Case C-383/95)
[1997] I.C.R. 715.TheMoambiquerule was applied by analogy to
patents in Potter v. Broken Hill Pty. Co. Ltd. (1906) 3 C.L.R. 479
and Norbert Steinhardt and Son Ltd. v. Meth (1961) 105 C.L.R. 440 ,
but the reasoning in those cases cannot be sustained in the context
of the U.K.'s accession to the Convention of 1968. [Reference was
made toDef Lepp Music v. Stuart-Brown [1986] R.P.C. 273;Tyburn
Productions Ltd. v. Conan Doyle [1991] Ch. 75andIn re Harrods
(Buenos Aires) Ltd. (No. 2) [1992] Ch. 72.]There are two further
reasons why the plaintiff's claim can be brought in the English
court. (1) If the doctrine that the locality of the act is
inseparable from the wrong is relinquished, the plaintiff's claim
satisfies the double actionability rule. (2) The case falls within
the exception in rule 203(2) (seeRed Sea Insurance Co. Ltd. v.
Bouygues S.A. [1995] 1 A.C. 190) and the law having the most
significant relationship with the occurrence and the parties is
Dutch law, since the only connection with England is the domicile
of the plaintiff and two of the defendants.If the defendants'
appeal succeeds the appropriate course is a reference to the
European Court of Justice under article 3 of the 1971 Protocol to
the Convention .Christopher Floyd Q.C.,Richard HaconandHeather
Lawrencefor the defendants. On the application to adduce evidence,
the court should apply the law inLangdale v. Danbyand not Williams
v. Attridge , since the full Court of Appeal is not bound by a
previous interlocutory decision of a two-judge court: see Boys v.
Chaplin . [Reference was also made toWeller v. Dunbar; Woodhouse v.
Consolidated Property Corporation ; Khan v. Kensington and Chelsea
Royal Borough Council andRudra v. Abbey National Plc. (1998) 76 P.
& C.R. 537.] The court should not admit the further evidence
because the plaintiff chose to defend the application to strike out
on limited evidence and did not object to the affidavit in reply or
seek an adjournment: see Canada Trust Co. v. Stolzenberg (No. 4),
The Times, 14 May 1998 .The plaintiff's allegation against the
defendants was fanciful and preposterous and was correctly struck
out under the court's inherent jurisdiction: seeDavey v. Bentinck
[1893] 1 Q.B. 185.The Convention is concerned solely with
jurisdiction and not with what English law regards as actionable.
The fact that jurisdiction is obligatory has no bearing on the
question whether English law must recognise an infringement of
Dutch copyright as an actionable wrong. The*409conflict of law
rules do not directly affect the application of the Convention. The
plaintiff must therefore say that the Convention's effectiveness is
indirectly influenced by the rules. But that assertion confuses the
plaintiff's right to bring an action anywhere provided for by the
Convention and the permitted variation in laws of contracting
states making it more attractive for a plaintiff to bring an action
in the courts of one state rather than another: seeShevill v. Press
Alliance S.A. (Case C-68/93) [1995] 2 A.C. 18. There are matters
other than infringement of foreign intellectual property rights
which English law treats as non justiciable: seeButtes Gas and Oil
Co. v. Hammer [1982] A.C. 888. The fact that the law in England is
such that an action under article 2 of the Convention would be
worthless is of no account. The Convention does not influence the
justiciability rules: see theMlnlycke case [1992] 1 W.L.R. 1112;L.
A. Gear Inc. v. Gerald Whelan & Sons Ltd. [1991] F.S.R. 670;
theTyburn case [1991] Ch. 75;James Burrough Distillers Plc. v.
Speymalt Whisky Distributors Ltd. [1991] R.P.C. 130;Plastus Kreativ
A.B. v. Minnesota Mining and Manufacturing Co. [1995] R.P.C.
438andMecklermedia Corporation v. D. C. Congress G.m.b.H. [1998]
Ch. 40. The judge was therefore wrong to treat the justiciability
rules as abrogated by the Convention. [Reference was made to
theCoin Controls Ltd. case [1999] Ch. 33; theFort Dodge case [1998]
F.S.R. 222and the Boston Scientific case, 18 November 1997 .]As the
present case is a copyright case it comes within article 5(2) of
the Berne Convention and the Brussels Convention of 1968 does not
apply.Clarkreplied.Cur. adv. vult.21 January 1999. ROCH L.J.handed
down the following judgment of the court. The plaintiff, Mr.
Pearce, is an architect. In 1986 he completed his diploma in
architecture at the Architectural Association School of
Architecture in London. Between December 1985 and June 1986 he
undertook an architectural project for his diploma in which he
produced drawings, detailed plans and paintings of a design for a
town hall for the Docklands Development in London. He claims, so
far as is relevant to these proceedings, that he is the owner of
United Kingdom and Dutch copyright in his Docklands plans.Between
1990 and 1993 the City of Rotterdam, the fourth defendants, had
constructed in Rotterdam a public building known as the Kunsthal.
The first defendants, Ove Arup Partnership Ltd., were appointed as
civil engineer for the construction of the Kunsthal. The third
defendants and their director Mr. Koolhaas, the second defendant,
were the architects who designed the building. In the Autumn of
1992 Mr. Pearce visited Rotterdam as a tourist. He saw the Kunsthal
in the course of construction and believed that features of its
design had been copied from his Docklands plans. In these
proceedings he claims that each of the defendants has infringed his
United Kingdom or Dutch copyrights. It is accepted on his behalf
that a damages claim for infringement of his United Kingdom
copyright would be statute-barred, although the possibility of
claiming an injunction is forensically retained. The main claim is
for infringement of his Dutch copyright.*410The first defendants
are domiciled in the United Kingdom. Mr. Koolhaas may be domiciled
in the United Kingdom. The third and fourth defendants are
domiciled in the Netherlands. Mr. Pearce claims that the English
courts have jurisdiction in relation to his claims against those
defendants not domiciled in the United Kingdom under article 6(1)
of the Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters 1968 . This provides that
a person domiciled in a contracting state may be sued, where he is
one of a number of defendants, in the courts for the place where
any one of them is domiciled.The plaintiff's writ and statement of
claim were issued on 25 September 1996. The statement of claim was
amended on 30 October 1996. The second, third and fourth defendants
served a defence dated 13 November 1996 and the first defendants
filed a defence dated 29 November 1996. Each of them denied
infringement of the plaintiff's copyright. There were requests for
particulars of the amended statement of claim and the plaintiff
eventually, on 31 January 1997, served amended particulars of
similarity, giving particulars of the similarities which he alleged
between his copyright works and the defendants' plans. Meanwhile on
16 December 1996 the second, third and fourth defendants had issued
a notice of motion seeking to strike out those parts of the amended
statement of claim which concerned alleged infringements of Dutch
copyright on the ground that these were not acts which constitute
torts actionable under English law. The notice of motion also
invited the court to strike out the whole of the amended statement
of claim under its inherent jurisdiction on the ground that the
plaintiff's allegations were speculative. The notice of motion also
applied to strike out those paragraphs of the amended statement of
claim which alleged breach of United Kingdom copyright on the
ground that these allegations were statute-barred. By summons dated
19 December 1996 the plaintiff applied to strike out allegations in
each of the defences which asserted that infringement of Dutch
copyright is not actionable as a tort under English law.These
matters came before Lloyd J.[1997] Ch. 293on 12 February 1997. In
his judgment given on 7 March 1997 the judge declined to strike out
the allegations of infringement of Dutch copyright on the ground
that they were not justiciable under English law. But he upheld the
defendants' submission that on the facts alleged the plaintiff's
claim was bound to fail. He held that the degree of similarity
between the plaintiff's Docklands design and the Kunsthal drawings
was not sufficient to give rise to an inference of copying. He
considered that the claim was based on speculation. He accordingly
ordered the whole claim against each of the defendants to be struck
out.The plaintiff appeals, with leave granted on paper by Aldous
L.J., against the judge's decision that on the facts which he
alleged his claim was bound to fail and should be struck out. The
second, third and fourth defendants by respondent's notices contend
that the judge's order should be affirmed on the additional ground
that the alleged infringements of Dutch copyright against them are
not actionable torts under English law. This judgment deals with
each of these contentions.*411Abuse of processThe plaintiff's
pleaded case relies on two limbs. He alleges, first, that the
second and third defendants had an opportunity to take copies of
his Docklands plans and he asks the court to infer that they did
so. Secondly, he alleges that there are remarkable similarities
between his plans and the Kunsthal drawings. From a combination of
these facts, he says that it should be inferred that the second and
third defendants used graphic copies of his plans as a basis for
their design. In striking out the plaintiff's claim on the basis
that it was speculative, the judge in essence decided that the
claim was bound to fail because no court would ever be persuaded to
draw the necessary inferences.The plaintiff pleads that one of his
tutors at the Architectural Association School of Architecture was
Alexander Wall, who also worked for the third defendants in 1986.
The plaintiff says that, for approximately six weeks in the autumn
of 1986, he was employed in London by the third defendants at the
invitation of Mr. Wall to complete the construction of a model.
After he had been so employed for about a week, he was asked by Mr.
Wall to take his Docklands plans to work so that Mr. Wall might
show them to another employee of the third defendants. The
plaintiff took his Docklands plans to the third defendants' London
office. Mr. Wall asked him to leave them there over the weekend,
and the plaintiff agreed to do so. He retrieved his plans from the
third defendants' offices on the following Monday morning, noticing
that the detailed plans had been physically detached from the
paintings and drawings. He cannot prove directly that they had been
copied, but he alleges that the second defendant or an employee of
the third defendant not only had the opportunity to, but did in
fact, copy his plans over that weekend.The second, third and fourth
defendants plead that the third defendant is a Dutch company
incorporated in 1988 to continue the work of a Dutch partnership
called the Office for Metropolitan Architecture ("O.M.A.") based in
Rotterdam. The second defendant was a partner in O.M.A., which had
been founded in 1979, and is also a director of the third
defendants. The second defendant was not a partner in a different
firm, also called the Office of Metropolitan Architecture, founded
in 1975 in London. The two firms were separate and carried on
separate work. The London firm and O.M.A. were not the same legal
person. Mr. Wall worked on a freelance basis for the London firm
and the defendants understand that for a short period in 1986 the
plaintiff did temporary freelance work for the London firm. The
defendants plead that they do not know or admit whether the
plaintiff took his Docklands plans to the premises of the London
firm and they have no knowledge of what he alleges may have
happened to them. They deny that the second defendant or an
employee of the third defendant copied the plaintiff's plans. It is
pleaded that the second defendant had never seen the plaintiff's
Dockland plans before the beginning of this litigation and had
never heard of them before the plaintiff began to make allegations
which are said to be untrue. So far as is within his knowledge,
these pleaded matters are verified in an affidavit of Mr. Koolhaas
which was before the judge. In his judgment, the judge noted that
there would be a dispute about the plaintiff's allegations*412that
the second and third defendants had access to his drawings, but he
assumed in the plaintiff's favour for the purposes of the matters
before him that the plaintiff's allegations about access to the
drawings was true. This was of course the correct approach, since
striking-out applications normally proceed on the basis that
pleaded allegations are capable of being established. The
assumption must extend to one that the second or third defendants
had a practical opportunity to have access to the plaintiff's plans
whatever the precise relationship may have been between the English
and the Dutch O.M.A.Since this part of the defendants' application
was made under the courts' inherent jurisdiction, they were
entitled (as they would not have been if the application had been
only underR.S.C., Ord. 18, r. 19(1)(a)) to tender affidavit
evidence. The application was supported by Ian Starr's first
affidavit, which maintained that the plaintiff's allegations were
based on pure speculation. At the time of his affidavit, the
plaintiff had been asked to particularise the factual basis of his
allegation of infringement. There had been correspondence between
solicitors but no proper particulars had been supplied.
Subsequently, the plaintiff did provide particulars and amended
particulars of similarity which the defendants said needed further
explanation. There was a meeting on 30 January 1997 at which the
plaintiff gave explanations of his allegations of similarity to
representatives of the defendants' solicitors. Copies of the
plaintiff's Docklands plans and of the deposited Kunsthal plans
were annotated by reference to the amended particulars of
similarity to explain what was alleged.The only evidence before the
judge on behalf of the plaintiff was an affidavit of his then
solicitor. This verified parts of the plaintiff's pleaded
narrative, but said nothing informative about the details of the
plans. The defendants, however, having received the explanations
given at the meeting on 30 January 1997, served a long affidavit of
Mr. Koolhaas. This was served on the plaintiff's solicitors about
five days before the hearing before the judge. It exhibited
relevant parts of the plaintiff's drawings, JKM 5, JKM 6 and JKM 8
whose scale was 1:250 and a sketch JKM 9, and copies of the third
defendants' Kunsthal drawings, V-02A, V-03A, V-04A and V-08A, whose
scale was 1:200. The versions exhibited included those which had
been annotated at the meeting on 30 January 1997. Mr. Koolhaas
denied any allegation that he copied any of the plaintiff's
drawings in any way. He said that any degree of similarity between
the drawings was due to the school of architecture to which the
designs belong. He said that when the defendants first saw the
plaintiff's drawings in October 1996 they came to the conclusion
that there were no similarities between the plaintiff's designs and
the Kunsthal designs. Most of the plaintiff's particulars referred
to single dimensions of different elements of design which were
taken out of context and randomly compared with elements of the
design of the Kunsthal. The plaintiff had explained at the meeting
on 30 January 1997 that the allegations related, not to full scale
measurements, but to exact copying of dimensions from his 1:250
scale drawings into the defendants 1:200 scale drawings, thus
treating the drawings purely as graphics and disregarding the
difference in scale. Mr. Koolhaas said that to an architect a
single dimension was meaningless*413and that an architect would not
just copy a different dimension used in a different element in a
different position in another design and at a different scale. It
was his understanding that the plaintiff had taken mostly single
measurements on his plans and found, by a process of trial and
error, comparable measurements often in unrelated parts of the
Kunsthal and from unrelated features. Mr. Koolhaas produced and
exhibited a relatively detailed initial response to the plaintiff's
particulars. He denied that the design of the Kunsthal had square,
rectangular or triangular elements which were the same as or
comparable with equivalent elements in the plaintiff's Docklands
drawings such as the plaintiff alleged. He gave detailed examples
of two specific areas where the plaintiff alleged that dimensions
were exactly the same but where, on Mr. Koolhaas's analysis and
explanation, there was no sensible comparison.At the hearing before
the judge, the plaintiff did not tender any evidence in answer to
Mr. Koolhaas's affidavit, nor was there any application for an
adjournment to enable him to do so. Submissions before the judge
proceeded by reference to the amended particulars of similarity and
by comparing the two sets of drawings exhibited to Mr. Koolhaas's
affidavit.In his judgment, the judge gave detailed consideration to
the allegations of similarity, and their rebuttal. He described the
two buildings shown on the respective drawings in these terms:"The
Kunsthal is a more or less square building, at the southern end of
a park called Museumpark. It abuts, on the south, onto a dyke, the
Westseedijk. More or less parallel with the dyke there is a service
road which runs through the building. The public access to the
building is from the north, from the Museumpark (hence Parklevel).
The public gains access at a point about one third along the
northern side from the west, and ascends a ramp of constant width
as far as the middle of the building, where the ticket office and
access to the principal areas within the building are to be found.
The ramp continues as far as the southern end of the building,
across the service road. At the lower level, -1, which is slightly
lower than the level of the road, but in spaces at least partly
open to a higher level, there are a large, more or less square
exhibition space, on the eastern side of the building, and a
caf/restaurant on the western side, rectangular in shape. Intruding
into the space about the caf/restaurant, at a level above that of
the ticket office, is a balcony which forms the beginning of an
angled ramp, higher than the central access ramp, and parallel to
it in cross-section, but at a different angle from it in plan,
which comes out at the roof level and constitutes at least in part
a roof garden. At the highest level (for which I have only the
cross-sections, not any plans) the building seems to be continuous
across the service road and thus joins the part of the building to
the south of the service road. At a lower level the continuation of
the access ramp provides a sort of bridge over the service road. On
the west side of the building, about the caf/restaurant and its
kitchen and bar, there is a further ramp rising to the north, and
also of constant width, from the level of the service road at the
south to about level + 1 at the northern end of*414the building
(best seen in cross-section A-A on plan V-08Aexhibit RLK12but also
seen in part on plan V-04Aexhibit RLK11). The second defendant
explains in his affidavit that this is the auditorium. The
plaintiff's Docklands town hall would have been a broadly
rectangular construction, next to the river and separated from it
by a promenade, but with a jetty for access by boat. At ground
level it consists largely of supporting structures below the main
structure at a higher level, which itself is surmounted by a large
tower over part of it. The drawings I have for this are plans at
ground level and main deck level, two cross-sections and an overall
impression from the north. At the main deck level there is, to the
east, a rectangular area which includes two magistrates' courts and
associated areas. To the west of this is, to the north, the access
to the building, starting at ground level, by way of an uncovered
ramp widening as it rises to the main deck level to a point about
half way into the building on the north-south axis. To the south of
this is a conference chamber/cinema, also rising to the south and
widening, and protruding somewhat beyond the rest of the south wall
of the building. To judge from the cross-section, the roof of this
area also rises noticeably beyond the general level of the roof at
this level, and thus overall it presents a quite striking feature
of the design. Immediately to the west of these rising and widening
elements is an area, partly of offices and partly of public access.
This area also has a rather striking feature, on the north side, in
that the wall (mostly consisting of glass) is curved twice
(horizontally) in a gentle sort of S shape. Neither this feature
nor that mentioned above as regards the protrusion of the
conference chamber/cinema is to be seen in the Kunsthal. The
western part of the plaintiff's building at main deck level
comprises various offices and an open courtyard, arranged in
different shapes, sizes and dispositions, some of them being open
plan. There appear to be two balconies off this area, one to the
north and the other to the south."Paragraph 1 of the plaintiff's
amended particulars of similarity was a general allegation:"The
plaintiff's copyright works depict a building (a) comprising a
pedestal and slab; and (b) located on the intersection of two axes,
one being a ramp running into the building and the other a
promenade running parallel to the river. The Kunsthal is also a
building (a) comprising a pedestal and a slab; and (b) located on
the intersection of two axes, one being a ramp running into the
building and the other a service road."Mr. Koolhaas in his
affidavit took issue with this, saying that the service road, which
runs through the Kunsthal at a low level, is not so significant a
feature as the relationship between the two opposed ramps, one
running not just into but through the building, and the other
rising in the opposite direction, being the auditorium. Of this the
judge said that he could not himself see a similarity such as the
plaintiff here alleged. He concluded that he could not accept that
the overall concept of the two designs showed any sufficient
similarity as to raise an inference of copying.*415Paragraphs 2 and
4 to 7 of the particulars of similarity allege that each building
comprised three basic elements: a rectangular volume, a triangular
volume and a square volume. It is said that the areas of each of
these in plan is identical. (The pleading alone does not, so it now
seems, accurately state the plaintiff's case. The essential case is
not that the volumes or the areas are identical but that the
graphic lines on the paper drawings are the same lengths and
configurations, although at different scales.) The contention is
that it is to be inferred that elements from the plaintiff's
drawings were transferred mechanically or graphically to the
defendants' drawings and that, although their precise
interrelationship was altered, the same spacial elements were used
and an essential conceptual interrelationship retained. The judge
acknowledged that there was a rectangular element and a square
element in each design, but pointed to differences in their
relationship and to other features separating them on each of the
plans. Of the triangular elements the judge said:"In the
plaintiff's drawing these two elements are separated by a further
rectangular element but this includes what on the plan is a
prominent triangular element, consisting of two parts: the ramp
from the narrow entrance, effectively the apex of the triangle,
rising and widening as already described to the point at which one
enters the building, and then, across a passage area, the further
area described as 'conference chamber/cinema' which I have also
described above. On the third defendant's plan the plaintiff has
sought to describe a triangular element defined by points which are
marked as P6 on exhibit RLK11. This is not a real element at all.
Its north-western point is a genuine point: it is the starting
point of the diagonal ramp which ascends through the upper floor of
the building to the roof and provides a roof garden. The
north-eastern point is merely a point level with this on the wall
to the east, the left hand wall of the entrance ramp as one walks
up it into the building and the apex point at the south is a
notional point across the roadway which runs through the lower
levels of the building. I do not accept that there is a triangular
element in the third defendant's design comparable to, and capable
of being regarded as resembling and copied from, the ramp and the
cinema in the plaintiff's drawing. There are diagonal elements, but
the attempt to make out a comparable triangular element in the
Kunsthal is artificial."The judge considered in some detail two
further allegations of similarity, concluding that they were wholly
unconvincing and that it was impossible to see that any permissible
inference could be drawn of copying from such coincidences. He then
explained that counsel for the plaintiff had not pressed others of
the 52 points relied on in the particulars of similarity. The judge
said that some of them were preposterous and constituted absurd
comparisons. They did not show a sufficient degree of similarity to
give rise to an inference of copying. He concluded, at p.
309:"Taking the plaintiff's case as pleaded and particularised at
its best, and in the light of the annotated drawings which are
necessary to its understanding, but also in the light of the second
defendant's*416comments in, and exhibited to, his affidavit, which
have not been answered, I am satisfied that the claim is as much
based on speculation and surmise as the claims that were struck out
inUpjohn Co. v. T. Kerfoot & Co. Ltd. [1988] F.S.R. 1, A-Z
Couriers Ltd. v. Comspec Computer Software Ltd. (unreported), 9
November 1988 and AM Computer Technology Ltd. v. 4-Sight Ltd.
(unreported), 14 January 1992 . Just as in those cases, the claim
is one which cannot succeed and ought therefore to be struck out as
an abuse of process."The judge stressed on more than one occasion
in his judgment that there was no evidence before him answering Mr.
Koolhaas's detailed evidence.In this court, the plaintiff applied
for leave to adduce additional evidence, which included: (a) his
own second affidavit which, among other things, explained the
details of his allegations of similarities in the plans; (b) a
portfolio of 18 pairs of drawings, each pair consisting of a part
of his own Docklands drawings overlaid with a transparency of what
he alleged to be a comparable part of the Kunsthal drawings; and
(c) an expert's report of Frederick Hill, among whose
qualifications is that of Fellow of the Royal Institute of British
Architects, expressing opinions about the drawings which are the
subject of this dispute.The grounds upon which the application to
adduce the additional evidence is made, as explained by Miss Clark
on behalf of the plaintiff, include that the evidence relates
directly to the issue of similarity; that Mr. Koolhaas's affidavit
was served only shortly before the hearing before the judge and
that the judge placed great reliance on it; and that the failure to
seek to put evidence of this kind before the judge or to apply for
an adjournment was not caused by any personal fault of the
plaintiff, but rather by the fault of, or error of judgment by, his
then solicitors or counsel. In his affidavit in support of the
application, the plaintiff says that he had prepared 10 pages of
handwritten notes in response to Mr. Koolhaas's evidence which he
gave to his solicitor. He believed that he himself would be asked
to give oral evidence but also that his solicitor would prepare any
affidavit evidence that was needed. There was however no response
to Mr. Koolhaas's evidence on his behalf. When his present
solicitors received the papers from his former solicitors, only one
of the 10 pages of notes was among them. We were also told that the
plaintiff had brought his portfolio of drawings, which had been
used at the meeting on 30 January 1997, to the hearing before the
judge but that he was not asked to produce them and they were not
referred to. Counsel on behalf of the defendantsMr. Floyd on behalf
of the second, third and fourth defendants and Miss Lawrence on
behalf of the first defendantssubmitted that the evidence should
not be admitted.Ord. 59, r. 10(2)gives the Court of Appeal power to
receive further evidence on questions of fact"but, in the case of
an appeal from a judgment after trial or hearing of any cause or
matter on the merits, no such further evidence (other than evidence
as to matters which have occurred after the date of a trial or
hearing) shall be admitted except on special grounds."*417For there
to be "special grounds," the conditions referred to inLadd v.
Marshall [1954] 1 W.L.R. 1489must be satisfied. The first of those
conditions is that it must be shown that the evidence could not
have been obtained with reasonable diligence for use at the trial.
Mr. Floyd submits, by reference to the decision of the House of
Lords inLangdale v. Danby [1982] 1 W.L.R. 1123, that the hearing
before Lloyd J., which resulted in the plaintiff's claim being
struck out on the basis that on the facts it was bound to fail, was
a hearing on the merits and that accordingly theLadd v.
Marshallconditions are to be applied. Mr. Floyd submits that the
plaintiff came nowhere near satisfying the firstLadd v.
Marshallcondition. All the additional evidence could have been
obtained with reasonable diligence. This was plainly so of the
plaintiff's own evidence and his portfolio of drawings. Mr. Hill
had been consulted in 1995, and was concerned at the time when the
plaintiff's claim was formulated in September 1996. He either was
or could have been available when the matter was heard by the
judge. Mr. Floyd submitted that evidence and correspondence since
the hearing before the judge, which included inquiries of the
plaintiff's former solicitors (but surprisingly did not include
inquiry of his former counsel), indicated either incompetence on
the part of one or more of the lawyers or, more probably, a
conscious decision by counsel in consultation with his solicitor
not to seek leave to adduce additional evidence.Miss Clark on
behalf of the plaintiff relies on the recent decision of this court
in Williams v. Attridge (unreported), 8 July 1997; Court of Appeal
(Civil Division) Transcript No. 1144 of 1997 . In that case the
master had struck out the plaintiff's claim. The plaintiff's appeal
came before Sir Peter Webster, sitting as a judge of the High
Court. After an adjournment to enable the plaintiff to obtain
further evidence, Sir Peter Webster dismissed the plaintiff's
appeal. Upon appeal to this court, the plaintiff applied for leave
to adduce additional evidence. It was common ground between the
parties that, if the fresh evidence were not admitted, Sir Peter
Webster's order must stand. Brooke L.J., giving the judgment of the
court, referred toLangdale v. Danby [1982] 1 W.L.R. 1123, in which
the House of Lords had held that summary judgment given under Order
14 (or Order 86) was a judgment after a hearing of a cause on the
merits. On the other hand, inWeller v. Dunbar (unreported), 27
January 1984; Court of Appeal (Civil Division) Transcript No. 18 of
1994Stephenson and Dunn L.JJ. had accepted that, upon the hearing
of an appeal by a plaintiff against an order setting aside a
default judgment, the court was able to go wider than the tests
inLadd v. Marshall [1954] 1 W.L.R. 1489in deciding whether to admit
new evidence. Stephenson L.J. had said inWeller v. Dunbar, 27
January 1984 that counsel had properly conceded that in that case
there had been no judgment on the merits. He concluded that the
court must look at the whole position and consider whether, in the
interests of justice, it was right or wrong to allow the evidence
to be given. Brooke L.J. said of this that on the face of it there
was no detectable difference in the context of Williams v.
Attridge, 8 July 1997 between an interlocutory decision to set
aside a default judgment and an interlocutory decision to strike
out an action underOrd. 18, r. 19or under the inherent jurisdiction
of the court. In neither case had there been a judgment on the
merits. He then referred to the decision of Nourse L.J.,*418sitting
as a single Lord Justice, in Khan v. Kensington and Chelsea Royal
London Borough Council (unreported), 10 October 1990; Court of
Appeal (Civil Division) Transcript No. 850 of 1990 , when he
refused a plaintiff leave to appeal against a decision striking out
part of his statement of claim. Nourse L.J. refused to consider
additional evidence on the basis that it would not satisfy the
principles ofLadd v. Marshall [1954] 1 W.L.R. 1489. There was
however nothing to suggest that Nourse L.J. was referred to the
precise wording ofOrd. 59, r. 10(2)or to the judgment of the court
inWeller v. Dunbar, 27 January 1984. Brooke L.J. in Williams v.
Attridge, 8 July 1997 concluded:"We are quite satisfied that Sir
Peter Webster's order, though the judge considered the possible
merits of the plaintiff's claim, was not 'a judgment after trial or
hearing of any cause or matter on the merits' ..."Counsel for the
plaintiff had told the court that the necessary evidence was not
placed before Sir Peter Webster because of a misunderstanding on
his part for which the plaintiff was not responsible. A detailed
explanation of this was given, which the court accepted,
saying:"and in the circumstances we consider that justice demands
that we should admit the fresh evidence, which corrects the effect
of the mistake ... and allow this appeal. It would be the reverse
of justice if we permitted this striking-out order to stand in
circumstances where a mistake had clearly been made through no
fault of the plaintiff and where he has a properly arguable claim,
disclosing a viable cause of action, which he wishes to bring."Miss
Clark submits that the grounds upon which the plaintiff in the
present appeal applies to be able to adduce fresh evidence are
stronger than those in Williams v. Attridge, 8 July 1997 , from
which in principle this appeal is indistinguishable. Mr. Floyd
submits that Williams v. Attridge was wrongly decided in that this
court ought to have held itself bound by the House of Lords
decision ofLangdale v. Danby [1982] 1 W.L.R. 1123. If a hearing
when the court gives summary judgment under Order 14 is a hearing
on the merits, so too is a hearing when the court strikes out a
plaintiff's claim upon the basis that factually it is bound to
fail. We heard interesting submissions on the status before this
court consisting of three Lords Justices of a decision of this
court by two Lords Justices, and on whether, if it is considered
that another division of this court had reached a decision which
was inconsistent with a decision of the House of Lords, that was
remediable in this court or only in the House of Lords.In our
judgment, it is not necessary to reach a conclusion on these
submissions in this case and we do not do so. We only observe that,
whichever submission on the question before us may be correct, it
seems unsatisfactory if the criteria for admitting fresh evidence
in the Court of Appeal in matters such as this differ upon the same
subject matter depending on the outcome in the court below. For
summary judgment applications, this appears to be so: seeWoodhouse
v. Consolidated Property Corporation Ltd. (1992) 66 P. & C.R.
234, 239, where Glidewell L.J. agreed with a passage in The Supreme
Court Practice 1991, vol. 1 , pp. 94-95, para.
59/10/8*419suggesting that an order refusing summary judgment or
granting conditional leave to defend is not an order made after a
hearing on the merits and that therefore theLadd v. Marshall [1954]
1 W.L.R. 1489conditions do not apply. InRudra v. Abbey National
Plc. (1998) 76 P. & C.R. 537this court held that theLadd v.
Marshallconditions applied where a claim had been struck out after
a ruling on a preliminary issue underR.S.C., Ord. 14A, this being
closer to an application for summary judgment than to a strike out
application. It appears that Robert Walker L.J. saw some logical
difficulty in distinguishing between the situation inLangdale v.
Danby [1982] 1 W.L.R. 1123and that in Williams v. Attridge, 8 July
1997 . It is, we think, quixotic if a party against whom a summary
order has been made, bringing to an end his ability to deploy his
case in court, has less opportunity to rely on further evidence in
the Court of Appeal than the other party would have had if the
summary order had not been made. In the first case, the appellant
has lost his case; in the second case, he has not lost his case and
retains the opportunity to rely on additional evidence at a later
stage.We do not need to decide these matters in this appeal
because, in our judgment, subject to one gloss, the plaintiff
should not be permitted to adduce the additional evidence even upon
the more liberal test propounded by Miss Clark. We are satisfied
that the evidence was available, or could readily have been
available, for the hearing before Lloyd J. If time was a problem,
the plaintiff could have applied for an adjournment. We are also
satisfied that the plaintiff's lawyers probably took a conscious
decision not to seek to adduce additional evidence and not to apply
for an adjournment. They probably reckoned that this part of the
notice of motion could be resisted successfully without it. The
general merits of the application to adduce fresh evidence are
therefore poor since, generally speaking, parties have to live with
tactical decisions which they, or their lawyers on their behalf,
make. Our main reason, however, is that in our view the additional
evidence is unnecessary. Our conclusion later in this judgment is
that Lloyd J. was wrong to hold that the plaintiff's pleaded claim
was so speculative that it was bound to fail. We reach this
conclusion on the material which was before the judge. We
accordingly dismiss the plaintiff's application to adduce further
evidence.The gloss is that we consider that the plaintiff's
portfolio of drawings is receivable, not as additional evidence,
but as explanation of counsel's submission on behalf of the
plaintiff for which leave is not needed. The portfolio illustrates
18 of the particulars of similarity. It is a useful visual aid to
the court's understanding of the plaintiff's case and it was indeed
so used, we are told, at the meeting on 30 January 1997. Mr. Floyd
has three related objections to its use for this purpose. The first
objection is that the drawings used to make the transparencies of
parts of the Kunsthal drawings are not, as the plaintiff originally
said they were, the V series drawings referred to in his
particulars of similarity, but design plans of the defendants as
they appeared in a French architectural magazine entitled "AMC
Revue d'Architecture" in September 1989. The plaintiff admits that
this is correct and that he made a mistake in his earlier
affidavit. The second objection is that the transparencies have
been prepared to show that the relevant comparisons are of
identical dimensions, when some of*420the dimensions may be shown
to be slightly different as between the two sets of drawings (and
therefore significantly different on the ground). The third
objection is that in making the transparencies the plaintiff has
made some changes of detail to the defendants' plans to help his
case. These are, in our view, legitimate objections (so far as they
go) to the substance of the plaintiff's case, but not to the
forensic use to which the portfolio may be put in this court. The
portfolio is a clear and helpful forensic aid to the understanding
of the plaintiff's case which has, we are sure, put this court at
an advantage over Lloyd J., who had to struggle with the greater
difficulty of comparing the annotated plans.It is not usually
possible to allege copying other than as a deduction by inference
from all the surrounding circumstances. In Copinger and Skone James
on Copyright, 13th ed. (1991) , p. 168, para. 8-13 it is said:"The
proper test, in all cases, probably involves four propositions: (1)
in order to constitute reproduction within the meaning of the Act
there must be (a) a sufficient degree of objective similarity
between the two works, and (b) some causal connection ... (3) Where
there is a substantial degree of objective similarity, this, of
itself, will afford prima facia evidence to show that there is a
causal connection between the plaintiff's and the defendant's work;
at least it is a circumstance from which the inference may be
drawn. (4) The fact that the defendant denies that he consciously
copied affords some evidence to rebut the inference of causal
connection arising from the objective similarity, but is in no way
conclusive. Thus if there is a sufficient similarity in the
plaintiff's work and the defendant's, and the defendant has had an
opportunity to copy the plaintiff's work directly or indirectly,
this will establish a prima facia case of copying which the
defendant has to answer."Each case will, of course, depend on its
own circumstances. There will be cases, such as those referred to
by Lloyd J. where a claim based upon access alone will be held to
be speculative and bound to fail because the necessary inference
could not be drawn from the facts pleaded. In the present case, the
facts alleged by the plaintiff from which he invites the court to
infer that copies of his plans were made by the third defendants or
an associated organisation in London are on the face of it
reasonably persuasivewe say no more than thiseven if Mr. Koolhaas's
evidence is taken into account. The judge assumed these facts in
the plaintiff's favour but may, we think, have given them too
little weight.Miss Clark submitted that the judge should not have
embarked upon a detailed inquiry into the alleged similarities
between the two sets of plans at all. In our view, this submission
goes too far. The defendants' essential contention was that a
proper evaluation at the outset of the plaintiff's pleaded
allegations with the aid of Mr. Koolhaas's evidence would show that
the similarities were fanciful and that the claim was bound to
fail. The judge had to consider these contentions. We consider,
however, that, in doing so, he was persuaded to go further than was
warranted on an application to strike out in the circumstances of
this case. The jurisdiction to strike out an action as an abuse
ought to be very sparingly exercised (see e.g. Lawrance v. Lord
Norreys (1890) 15 App.Cas. 210 , 219), and*421should not be
extended to become a trial of contentious matters on affidavit
(seeWenlock v. Moloney [1965] 1 W.L.R. 1238). In the present case,
for practical purposes, the judge tried a quite complicated
technical case on incomplete affidavit evidence. Mr. Koolhaas's
evidence was in its nature expert evidence, but was necessarily
partisan. There was no independent expert evidence and none in
support of the plaintiff's case. There did not need to be, if the
pleadings and the material before the court raised a sufficient
case for the defendants to have to answer. In such circumstances,
the judge would not in our view have been correct to conclude, if
he did, from Mr. Koolhaas's partisan evidence that expert evidence
in support of the plaintiff's claim could never be available.The
critical question remains whether the judge was right to conclude
that the inferences necessary for the plaintiff's case to succeed
could never be drawn. In our judgment, he was not. We have, as we
say, had the advantage of the plaintiff's portfolio which we are
sure explains his case forensically far more clearly than did the
material before the judge.The essential case is that there are so
many examples where dimensions and their shapes coincide on
drawings of a different scale that the inference should be drawn
that the defendants used a graphic copy of the plaintiff's plans as
a starting point for their own plans. The allegation is not, as we
understand it, limited to dimensions in plan only but to the
conceptual juxtaposition of shapes and spaces. It is a positive
part of the plaintiff's case for graphic copying that the two sets
of drawings are at different scales. The portfolio seeks to show
that both the Docklands Town Hall and the Kunsthal have the same
superstructure in plan. Portfolio plans A seek to show that the
square from the plaintiff's plans has been reproduced exactly for
the square exhibition space in the Kunsthal. Portfolio plans B seek
to demonstrate the same for the rectangle. Portfolio plans D seek
to show that the overall square of the Kunsthal plan has been taken
from the ground floor plan to the Docklands Town Hall both in
length and width. Portfolio plans E to R seek to demonstrate that
other dimensions or shapes in the Kunsthal design derive
dimensionally from equivalent features in the plaintiff's Docklands
plans.Portfolio plans C seek to show that a triangular element in
the Kunsthal plans is congruent with a triangle in the plaintiff's
Docklands plan. This was one of the elements which the judge
considered in detail and found quite unpersuasive. The plaintiff's
version of this triangle is shown on his drawing JKM 6 to be a
narrow right-angled triangle. The long side running vertically up
the plan is on the line of a structural wall which, for about half
its length, is the side wall of a widening and rising ramp. The
acute-angled apex of the triangle is at one side of the entrance to
the ramp. Beyond the top of the ramp the wider part of the base of
the triangle represents a conference chamber or cinema with rising
tiers of seats. The short base of the triangle is a projection of
the conference chamber behind the tiers of seats beyond the main
line of the building at this level. The hypotenuse of the triangle
is the line of the side of the conference chamber projected down
the ramp. In the Kunsthal drawing V-04A, the triangle on which the
plaintiff relies has been flipped over and moved substantially down
the building, so that the acute-angled apex of*422the triangle is a
notional point outside the relevant line of the structure. The
hypotenuse of the triangle is on the line of a ramp coming up from
below to a balcony and the short base of the triangle is on a line
where this ramp arrives at the balcony. The ramp itself is not
triangular but has parallel sides. The long vertical side of the
triangle is a different part of the structure altogether. The fact
however remains that each of these designs has a triangular spacial
concept which, according to the plaintiff, when appropriate
projections are made, constitute in plan graphically congruent
triangles. Additionally, a main element of each of these triangles
in plan is a plane rising through the building.A judge at trial may
conclude that these and other similarities alleged by the plaintiff
were coincidental. But we have all reached the clear conclusion,
with the aid of the plaintiff's portfolio, that the plaintiff's
allegations of similarity are not so fanciful that his claim as a
whole should be regarded as speculative. The allegations are
amenable, in our view, to opinion evidence. But we think that
expert evidence may be admissible in this case, for instance, to
explain the plans; to point out similarities and dissimilarities;
to explain how architects proceed conceptually and how they produce
their plans and drawings; and to explain generally what factors
bear upon the shapes and dimensions of buildings such as these: see
Deeks v. Wells [1933] 1 D.L.R. 353 andBauman v. Fussell [1978]
R.P.C. 485, 489. The plaintiff has, we think, pleaded a case of
similarity which, with his evidence about access to his drawings,
might be sufficient for an inference of graphic copying. Needless
to say, we say nothing about the eventual strength of the parties'
respective cases. Our present decision is, and only is, that the
defendants do not establish that the plaintiff's claim is in this
respect bound to fail.In reaching this conclusion, we take fully
into account all the matters urged upon us by Mr. Floyd on behalf
of the defendants, many of which have considerable force. The
elements relied on are not in precisely the same place in each of
the sets of drawings. You have to move the transparencies around to
demonstrate the dimensions and shapes which are said to coincide.
The elements do not have the same functional use. Some of the
comparisons are in quite different parts of the building. We are
prepared to accept that some of the pleaded comparisons, taken
alone, may merit the adjective "preposterous" given to them by the
judge. The dimensions may not, upon detailed examination, be
precisely the same. Some of the dimensions may require points to be
taken which are not points which have any meaning on the drawings.
The alleged similarity of the triangular elements is plainly
amenable to criticism and so forth. Yet, for all this, we consider
that there are sufficient basic coincidences of shapes, and a
sufficient accumulation of other dimensional coincidence, such that
this is a case which ought not to be struck out without full
consideration of oral evidence, including expert opinion.We
consider, therefore, the judge's decision that the plaintiff's
claim was bound to fail on the facts was wrong and should be
reversed.*423ActionabilityWe turn, therefore, to the defendants'
contention, raised by notices served underR.S.C., Ord. 59, r. 6,
that, nevertheless, the judge's order should be affirmed on the
ground that the infringements of Dutch copyright alleged against
the defendants are not actionable torts under English law.In
addressing this contention it is necessary to keep in mind that the
acts alleged to be infringements of the plaintiff's Dutch copyright
were done in Holland. There is no suggestion that, if the acts had
been done anywhere other than in Holland, they would have
constituted an infringement of the plaintiff's Dutch copyright, or,
to put the point another way, that the rights conferred by the
plaintiff's Dutch copyright extend to acts done outside Holland.
Further, those acts, because they took place in Holland, could not
constitute infringements of the plaintiff's United Kingdom
copyright. Those acts are not actionable under English domestic
law.The relevant inquiry, therefore, is whether (assuming that the
English court would otherwise have jurisdiction to hear proceedings
against the relevant defendants) English law permits the English
court, in the present context, to entertain a claim based on the
infringement, by acts done in Holland, of a local right conferred
in Holland by Dutch law. That is an inquiry which must be answered
by reference to English private international law rules, in
particular, by reference to those rules whichin the light of the
provisions of theCivil Jurisdiction and Judgments Act 1982and the
Conventions which, bysection 2(1)of that Act, have the force of law
in the United Kingdomgovern the resolution of disputes in civil and
commercial matters between persons domiciled in the states
("contracting states") which are parties to those Conventions.If
the English court is permitted by English private international law
rules to entertain a claim based on the infringement, by acts done
in Holland, of a local right conferred in Holland by Dutch law,
then it must follow as a necessary corollary that the same rules
permit, or require, the English court to apply Dutch law in order
to determine whether the claim is well founded. There is no other
law which the English court could sensibly apply for that purpose.
To put the point another way, if there is some English conflict of
laws rule which prevents the English court from applying Dutch law
to determine whether the claim is well founded, then that must be a
powerful, if not conclusive, indication that the English court
should not entertain the claim at all.Subject to an argument based
on the provisions of article 5(2) of the Berne Convention of the
International Union for the Protection of Literary and Artistic
Works 1886 , as revised at Paris on 24 July 1971 (1990) (Cm. 1212)
("the Berne Convention"), the defendants accept, as they must, that
the English court has jurisdiction to hear an action against a
defendant who is domiciled in England in respect of the
infringement in Holland of a Dutch copyright. That must follow from
the provisions in articles 2 and 16(4) of the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters 1968 ("the Brussels Convention"). The relevant
provisions are:*424"Article 2.Subject to the provisions of this
Convention, persons domiciled in a contracting state shall,
whatever their nationality, be sued in the courts of that state
...""Article 16.The following courts shall have exclusive
jurisdiction, regardless of domicile ... 4. In proceedings
concerned with the registration or validity of patents, trade
marks, designs, or other similar rights required to be deposited or
registered, the courts of the contracting state in which the
deposit or registration has been applied for, has taken place or is
under the terms of an international convention deemed to have taken
place ..."It is not suggested that the present proceedings (being
proceedings in respect of copyright in which no question of deposit
or registration arises) fall within article 16(4) . It follows that
the English court must accept jurisdiction in the proceedings
against the first defendant (who is domiciled here) and, perhaps,
also against the second defendant (who may be domiciled here): see
paragraph 78 of the Schlosser Report on the accession in 1978 of
the United Kingdom to the Brussels Convention (O.J. 1979 C. 59, p.
71). Further, article 6(1) provides: "A person domiciled in a
contracting state may ... be sued1. Where he is one of a number of
defendants, in the courts for the place where any one of them is
domiciled." It is accepted that the third and fourth defendantsand
also the second defendant, if not domiciled hereare domiciled in
Holland. It follows that the English court must accept jurisdiction
against those defendants also.Nevertheless, it is submitted that
jurisdiction is one thing; justiciability or actionability is
another. It is not enough for the plaintiff to establish that he
can bring proceedings against the defendants in the English court.
Where the wrong of which he complains has been committed outside
England, he must also establish that the English court, applying
its own conflict of laws rules, will regard his complaint as giving
rise to a cause of action that it will recognise and entertain.The
judge accepted that, but for the Brussels Convention, an action in
the English courts which was founded on an alleged breach of Dutch
copyright must be struck out as non-justiciable on one or both of
two grounds. First, because the rule inBritish South Africa Co. v.
Companhia de Moambique [1893] A.C. 602required that a claim for
breach of a foreign statutory intellectual property right must be
regarded as local and so could not be entertained by an English
court; and, secondly, because such a claim could not satisfy the
double-actionability rule derived from Phillips v. Eyre (1870) L.R.
6 Q.B. 1 . But he was satisfied that to apply those rules in a case
where the English court was given jurisdiction by articles 2 and 6
of the Brussels Convention would be inconsistent with, and would
impair the effectiveness of, the Convention; with the consequence
that the English conflict of laws rules must be regarded as
overridden by the Convention in such a case and so
inapplicable.Non-justiciability under the Moambique ruleOn its face
the rule in theMoambique case [1893] A.C. 602does not provide
self-evident support for the proposition that a claim for breach
of*425a foreign statutory intellectual property right cannot be
entertained by an English court. It is convenient to take the
statement of the rule, as it stood before theCivil Jurisdiction and
Judgments Act 1982, from the judgments of the House of Lords
inHesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd. [1979]
A.C. 508. Both Lord Wilberforce (with whom Lord Salmon and Lord
Keith of Kinkel expressed agreement) and Lord Fraser of Tullybelton
were content to adopt the formulation which appeared as rule 79 in
Dicey & Morris, The Conflict of Laws, 9th ed. (1973) , p. 516
:"Subject to the exceptions hereinafter mentioned, the court has no
jurisdiction to entertain an action for (1) the determination of
the title to, or the right to possession of, any immovable situate
out of England (foreign land); or (2) the recovery of damages for
trespass to such immovable."The exceptions are not material in the
present context. The second limb of the rule was abrogated
bysection 30of the Act of 1982:"(1) The jurisdiction of any court
in England and Wales or Northern Ireland to entertain proceedings
for trespass to, or any other tort affecting, immovable property
shall extend to cases in which the property in question is situated
outside that part of the United Kingdom unless the proceedings are
principally concerned with a question of the title to, or the right
to possession of, that property. (2) Subsection (1) has effect
subject to the 1968 Convention and the Lugano Convention and to the
provisions set out in Schedule 4."Article 16(1) of the Brussels
Convention gives exclusive jurisdiction, in proceedings which have
as their object rights in rem in, or tenancies of, immovable
property, to the courts of the contracting state in which the
property is situated. The position as it now is, following the Act
of 1982, is that (subject to the Convention) the English court has
jurisdiction to entertain proceedings for trespass to land,
wherever situate, unless the proceedings are principally concerned
with a question of title or the right to possession: see rule 116
in Dicey & Morris, The Conflict of Laws, 12th ed. (1993)
.Nevertheless, in order to evaluate the arguments put to us on
behalf of the defendants, it is necessary to examine in some detail
the grounds upon which the House of Lords held, in theMoambique
case [1893] A.C. 602, that an English court had no jurisdiction to
entertain an action for trespass to foreign land. The claims, as
originally advanced in that case, were (i) for a declaration that
the plaintiff company and others (respondents to the appeal) were
lawfully in possession of certain lands, mines and mining rights in
South Africa, (ii) for an injunction restraining the British South
Africa Co. from continuing to trespass in respect of those lands,
mines and mining rights and (iii) for damages for trespass. There
was no dispute that, as the law stood before the procedural reforms
introduced by the Supreme Court of Judicature Act 1873 (36 & 37
Vict. c. 66) , those claims could not have been advanced in an
English court. The*426issue was whether that bar was substantive or
procedural. As Lord Herschell L.C. explained[1893] A.C. 602,
617:"It is not in controversy that prior to the Judicature Acts no
such jurisdiction could have been exercised; but it is asserted on
behalf of the respondents that the only barrier to its exercise was
the technical one, that the venue in such a case must be local, and
that the rules made under the Judicature Acts which have abolished
local venues have removed the sole impediment which prevented the
courts entertaining and adjudicating on cases of this
description."The majority of the Court of Appeal (Lord Esher M.R.
dissenting)[1892] 2 Q.B. 358held that, the requirement that a
"local" action must be tried at a local venue having been abolished
by rules made under the Judicature Acts, the Supreme Court of
Judicature had jurisdiction to entertain the action. But Lord Esher
M.R., at pp. 395-396, in a dissenting judgment which was expressly
approved by Lord Halsbury in the House of Lords and which was much
relied upon by the High Court of Australia in Potter v. Broken Hill
Pty. Co. Ltd. (1906) 3 C.L.R. 479 , defined the question in these
terms:"With regard, then, to acts done within the territory of a
nation, all are agreed that such nation has without more
jurisdiction to determine the resulting rights growing out of those
acts; but, with regard to acts done outside its territory it has no
jurisdiction to determine the resulting rights growing out of those
acts, unless such jurisdiction has been allowed to it by the comity
of nations. This reduces the question under discussion to be,
whether, in regard to an act of trespass done to land situated
outside its territory, there is evidence to justify the inference
that by the comity of nations the jurisdiction to determine the
rights resulting from such an act has been allowed by other nations
to this country, and has been accepted by this country. And the
form of the inquiry shows, that the solution of that question does
not depend upon the laws of procedure in litigation adopted by this
country, but upon the comity of nations as between this country and
other countries."After an extensive review of the principles set
out in Story's Conflict of Laws, Lord Esher M.R., at p. 398,
reached the conclusion that an action for trespassin the old form,
an action quare clausum fregitcould not be entertained by an
English court in respect of an alleged wrongful entry on land
situated abroad:"and that the ground of the inability is, not that
by the procedure regulating English litigation there can be no
local venue given for the purpose of trial, but that no consent of
other nations by way of comity to the exercise of such jurisdiction
can be inferred, and that all countries, including England, have
consented or agreed that such an action is a real or mixed action,
as distinguished from a personal actionthat it is an action which
regards the rights resulting from the ownership, by possession or
otherwise, of the immovable property, the land, and, therefore,
that any claim in respect of any alleged injury of*427any kind to
those rights to land cannot be tried in any nation but that in
which is the situs of the landi.e., in which the land is
situated."On the appeal to the House of Lords the claims for a
declaration and injunction were abandoned. Lord Herschell
L.C.[1893] A.C. 602, 617 identified the principal question as
"whether the Supreme Court of Judicature has jurisdiction to try an
action to recover damages for trespass to lands situate in a
foreign country." The House of Lords rejected the contention that
the refusal of the English courts, prior to the Judicature Acts, to
exercise jurisdiction in actions for trespass to lands situate
abroad was based on the procedural requirementabolished byOrd.
XXXVI, r. 1of the new rulesthat an action which was local in nature
must be tried at a local venue. Lord Herschell L.C. said, at p.
629:"My Lords, I have come to the conclusion that the grounds upon
which the courts have hitherto refused to exercise jurisdiction in
actions of trespass to lands situate abroad were substantial and
not technical, and that the rules of procedure under the Judicature
Acts have not conferred a jurisdiction which did not exist
before."The other members of the House agreed. The conclusion is
clear enough: there were substantive grounds for refusing to
entertain an action for trespass to foreign land. What is, perhaps,
less clear is what the House of Lords thought those grounds
were.TheMoambiquecase was reconsidered, some 85 years later, by the
House of Lords inHesperides Hotels Ltd. v. Aegean Turkish Holidays
Ltd. [1979] A.C. 508. Lord Fraser, at p. 543, expressed the view
(not expressly endorsed by the other four members of the House)
that:"The decision [in theMoambiquecase] was based, as the speech
of Lord Herschell L.C. clearly shows, on a historical distinction
drawn in English law between local and transitory actions. Lord
Herschell held that actions for trespass to land were local and
that for that reason the English courts had no jurisdiction to try
them if the land was outside England."InTyburn Productions Ltd. v.
Conan Doyle [1991] Ch. 75, the only English case cited to us which
provides direct support for the proposition that a claim for
breach, outside England, of a foreign intellectual property right
cannot be entertained by an English court, Vinelott J., at pp.
80-81, identified the central issue before him as:"whether the
distinction between transitory and local actions, which was
considered by the House of Lords inBritish South Africa Co. v.
Companhia de Moambique [1893] A.C. 602, was fundamental to that
decision ... or whether that distinction was, as it were, an
historical prologue setting out the basis of the narrower rule that
the English courts will not entertain proceedings raising questions
as to the title to, or for damages for trespass to, land."It is
necessary, therefore, to understand what the distinction between
local and transitory actions was. Lord Herschell L.C., when tracing
the historical antecedents of that distinction in theMoambique case
[1893] A.C. 602,*428617-618, had pointed out that originally it was
necessary to state the true place, or venue, of every fact in
issuebecause each fact in issue would have to be determined by a
jury drawn from the place where the fact was said to have arisen.
Lord Herschell L.C. went on, at p. 618:"When juries ceased to be
drawn from the particular town, parish, or hamlet where the fact
took place, that is, from amongst those who were supposed to be
cognisant of the circumstances, and came to be drawn from the body
of the county generally, and to be bound to determine the issues
judicially after hearing witnesses, the law began to discriminate
between cases in which the truth of the venue was material and
those in which it was not so. This gave rise to the distinction
between transitory and local actions, that is, between those in
which the facts relied on as the foundation of the plaintiff's case
have no necessary connection with a particular locality and those
in which there is such a connection. In the latter class of actions
the plaintiff was bound to lay the venue truly; in the former he
might lay it in any county he pleased."Lord Herschell L.C. pointed
out the difficulty that arose where a fact occurred outside the
realm, and described the fiction that was developed to overcome
that difficulty where a fact which had occurred outside the realm
arose in a transitory action. But he went on to say, at p. 619:"My
Lords, I cannot but lay great stress upon the fact that whilst
lawyers made an exception from the ordinary rule in the case of a
local matter occurring outside the realm for which there was no
proper place of trial in this country, and invented a fiction which
enabled the courts to exercise jurisdiction, they did not make an
exception where the cause of action was a local matter arising
abroad, and did not extend the fiction to such cases. The rule that
in local actions the venue must be local did not, where the cause
of action arose in this country, touch the jurisdiction of the
courts, but only determined the particular manner in which the
jurisdiction should be exercised; but where the matter complained
of was local and arose outside the realm, the refusal to adjudicate
upon it was in fact a refusal to exercise jurisdiction, and I
cannot think that the courts would have failed to find a remedy if
they had regarded the matter as one within their jurisdiction, and
which it was proper for them to adjudicate upon."Lord Herschell
L.C. then traced the development of the law from Skinner v. East
India Co. (1666) 6 St.Tr. 710 to Doulson v. Matthews (1792) 4 Durn.
& E. 503 . He referred[1893] A.C. 602, 621, to a passage in the
judgment of Buller J. in the latter case, at p. 504a passage which
was later to be cited by three members of the House of Lords in
theHesperides Hotels case [1979] A.C. 508, 534:"It is now too late
for us to inquire whether it were wise or politic to make a
distinction between transitory and local actions: it is sufficient
for the courts that the law has settled the distinction, and that
an action quare clausum fregit is local. We may try actions
here*429which are in their nature transitory, though arising out of
a transaction abroad, but not such as are in their nature
local."Lord Herschell L.C. observed[1893] A.C. 602, 621:"In saying
that we may not try actions here arising out of transactions abroad
which are in their nature local, I do not think that the learned
judge was referring to the mere technical difficulty of there being
no venue in this country in which these transactions could be laid,
but to the fact that our courts did not exercise jurisdiction in
matters arising abroad 'which were in their nature local.' The case
of Doulson v. Matthews, 4 Durn. & E. 503 has ever since been
regarded as law, and I do not think it has been considered as
founded merely on the technical difficulty that in this country a
local venue was requisite in a local action."Lord Halsbury took the
same view. He said, at p. 633:"in Doulson v. Matthews , Lord Kenyon
and Buller J., in judgments which were supposed to have settled the
law, held that as a matter of settled practice actions of trespass
to land were local. In the opinions of the judges delivered to your
Lordships' House by Willes J. it is stated, without any
qualification, that an action of trespass to land abroad did not
lie."It is plain that both Lord Herschell L.C. and Lord Halsbury
were satisfied that there was ample authority in past decisions for
the rule that the English court did not entertain an actionor, as
Lord Herschell L.C. put it, did not exercise jurisdictionin a case
where the cause of action depended on some matter, arising outside
England, which was local in nature. But they did not leave the
matter there. They each went on to consider the basis for that
rule. Lord Herschell L.C. said, at pp. 622-623:"The distinction
between matters which are transitory or personal and those which
are local in their nature, and the refusal to exercise jurisdiction
as regards the latter where they occur outside territorial limits,
is not confined to the jurisprudence of this country. Story, in his
work on the Conflict of Laws (section 551), after stating that by
the Roman law a suit might in many cases be brought, either where
property was situate or where the party sued had his domicile,
proceeds to say that 'even in countries acknowledging the Roman law
it has become a very general principle that suits in rem should be
brought where the property is situate; and this principle is
applied with almost universal approbation in regard to immovable
property. The same rule is applied to mixed actions, and to all
suits which touch the realty.'"He then referred, at p. 623, to
passages at sections 553 and 554 in Story's Conflict of Laws, 8th
ed. (1883) :"In section 553, Story quotes the following language of
[Vattel's Law of Nations (1797)]: 'The defendant's judge' (that is,
the competent judge) says he, 'is the judge of the place where the
defendant has his settled abode, or the judge of the place where
the defendant is when*430any sudden difficulty arises, provided it
does not relate to an estate in land, or to a right annexed to such
an estate. In such a case, as property of this kind is to be held
according to the laws of the country where it is situated, and as
the right of granting it is vested in the ruler of the country,
controversies relating to such property can only be decided in the
state in which it depends.' He adds, in the next section: 'It will
be perceived that in many respects the doctrine here laid down
coincides with that of the common law. It has already been stated
that by the common law personal actions, being transitory, may be
brought in any place where the party defendant can be found; that
real actions must be brought in the forum rei sitae; and that mixed
actions are properly referable to the same jurisdiction. Among the
latter are actions for trespasses and injuries to real property
which are deemed local; so that they will not lie elsewhere than in
the place rei sitae.'"He observed:"The doctrine laid down by
foreign jurists, which is said by Story to coincide in many
respects with that of our common law, obviously had relation to the
question of jurisdiction, and not to any technical rules
determining in what part of a country a cause was to be tried."It
is, we think, plain that Lord Herschell L.C. was concerned with the
question of comity. He was concerned that the rules as to
jurisdiction under English law should conform to generally accepted
principles of private international law. He said, at p. 624:"The
question what jurisdiction can be exercised by the courts of any
country according to its municipal law cannot, I think, be
conclusively det