This article is primarily intended to bring up to date the account of the law on the staying of actions on the ground of forum non conveniens which appeared in last year’s volume of this journal1. The law has indeed moved on since last year. It was envisaged then that the decision of the House of Lords in The Abidin Daver 2, in which Lords Diplock and Brandon delivered judgments in similar (though not identical) terms3, would form the modern basis for the rules. To an extent this has happened, though there have been some cases where reference was made instead to the speech of Lord Diplock in MacShannon v. Rockware Glass Ltd.4 There is a measurable degree of difference between the two cases5. Under the test in MacShannon, it appears that if the plaintiff, who wishes to be allowed to sue in England, can demonstrate that there is one advantage which can be described as legitimate and either personal or juridical which would be lost if the action in England were to be stayed, a stay will not be ordered. There is apparently no “balancing” of the advantages to either side of trial in England. But the judgments in The Abidin Daver instruct the judge to undertake some form of balancing exercise. Lord Brandon said the judge should balance the factors militating for and against a stay. Lord Diplock said that a stay should not be issued if the advantage that would be lost is of such importance that it would be unjust to deprive the plaintiff of it. Lord Diplock also explained the difference between the two tests he had articulated by saying that the MacShannon case was one of the stepping stones used on the way to developing the statement of the law to be found, in apparently final form, in The Abidin Daver. It was also suggested that, where it was sought to obtain a stay of English proceedings on the ground that the parties had agreed to sue in another forum, the rules in The El Amria 6 would be applied. This has indeed occurred. Nevertheless, this writer ventured the view that there was in fact very little difference between the approach taken by the court when there is and is not a choice-of-forum clause7. The proposition will be referred to below, and it is interesting to note that two commentators have this year expressed this same view elsewhere8. Even so, the courts have not readily taken the point, and it is still necessary to distinguish these two categories of case.

But to say this is to raise a larger issue which lurks around in this area of the law. There are a number of ways in which the appropriateness of a forum can arise for consideration by an English court. What is unclear is the extent to which these categories are (or will remain) separate; or whether cross-fertilization is possible. The categories are (i) the staying of actions brought in England on the ground of forum non conveniens; (ii) the staying of actions brought in England in breach of an agreement to