Sim v. Robinow

Factual and Procedural Background

The Plaintiff and Defendant, both engaged in business in the Cape Colony, entered into a joint speculation involving shares of a South African mining company. Several years later, the Plaintiff, then resident in England, initiated two actions against the Defendant in the Court of Session. The first action sought an accounting and payment related to the proceeds from shares in a diamond mining company, alleging the Defendant had realised the shares but failed to account for the proceeds. The second action sought payment of a specified sum of money, claimed to be owed by the Defendant based on a statement of accounts extracted from the Defendant’s books.

At the time of service, the Defendant had been resident in Scotland for more than 40 days but asserted that his stay was temporary and that he intended to return to South Africa. The Defendant pleaded no jurisdiction and forum non conveniens in both actions. The Court of Session repelled these preliminary pleas, allowing the parties to proceed to proof of their respective averments.

Legal Issues Presented

1. Whether the Court of Session had jurisdiction to hear the actions brought by the Plaintiff against the Defendant.
2. Whether the plea of forum non conveniens should be sustained, i.e., whether the Scottish court was an inappropriate forum for the actions, favoring instead the courts of South Africa.
3. Whether the Defendant’s counter-claim could be properly pleaded in defence to the Plaintiff’s claims.
4. Whether the Plaintiff’s second action stated a relevant cause of action sufficient to proceed.

Arguments of the Parties

Defendant's Arguments

• The Defendant argued that the proper forum for the trial was in South Africa, as the joint ventures occurred there, and relevant books, documents, and witnesses were located there.
• The Defendant claimed the accounts had long been settled and denied any sum was due.
• The Defendant asserted that his presence in Scotland was temporary and that he intended to return to South Africa, where a branch of the Supreme Court existed, which would be a more appropriate and less expensive forum.
• The Defendant argued that the plea of forum non conveniens should be sustained as a matter of the Court’s discretion to further the ends of justice, even absent a pending action in another jurisdiction.
• The Defendant contended that the Plaintiff’s counter-claim was irrelevant as a defence to the action for an ascertained balance.

Plaintiff's Arguments

• The Plaintiff contended that the plea of forum non conveniens did not apply to the present case and that the inconvenience to the Defendant of answering in Scotland was insufficient to refuse jurisdiction.
• The Plaintiff emphasized that the Defendant failed to show he would suffer unfair disadvantage if tried in Scotland.
• The Plaintiff argued there was no special difficulty in settling the questions in the Scottish court and that the claims had been intimated to the Defendant about two years prior, providing ample opportunity to resolve the matters while still in South Africa.
• The Plaintiff maintained that the Defendant’s counter-claim was irrelevant to the action before the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court confirmed that jurisdiction was properly established and not disputed. The central question was whether the Court should decline to exercise jurisdiction under the plea of forum non conveniens. The Court analyzed the nature of the claims, noting that the first action was for an accounting related to specific shares, not a general partnership accounting, and the second was for a specific sum alleged to be due.

The Court found the Defendant's arguments—that the transactions, documents, and witnesses were in South Africa and that the Defendant intended to return there—insufficient to displace the jurisdiction of the Scottish Court. The Court emphasized that the Defendant’s temporary residence in Scotland and the Plaintiff’s status as a resident Englishman entitled the Court to proceed.

The Court noted that while some witnesses and documents were in South Africa, the principal parties were not, and that any inconvenience was balanced against the need for justice and the availability of the Scottish forum. The Court rejected the notion that the Defendant’s intention to return to South Africa should delay or prevent the Plaintiff’s claims from being heard.

Regarding the second action, the Court expressed doubt that the Plaintiff had stated a valid cause of action, noting the absence of specific averments of contract or obligation underlying the claimed balance. Nevertheless, the Court repelled the Defendant’s preliminary pleas to allow the matter to proceed for further examination.

The Court distinguished this case from previous instances where forum non conveniens was sustained, noting that in those cases, another court had clear jurisdiction and suitability to try the matter, which was not established here.

Holding and Implications

The Court REPELLED the Defendant’s pleas of no jurisdiction and forum non conveniens in both actions. The Court held that the Scottish Court was a competent and proper forum to hear the claims despite the foreign elements involved. The plea of forum non conveniens was not sustained because the Defendant failed to demonstrate that the South African courts were clearly the more appropriate forum or that justice required declining jurisdiction.

The Court remitted the second action to the Lord Ordinary to proceed with further examination of the sufficiency of the Plaintiff’s cause of action. No new legal precedent was established; the decision reaffirmed established principles that inconvenience alone does not justify declining jurisdiction where the Court has proper authority and the balance of justice favors proceeding.