| Brinkerhoff Maritime Drilling Corp and Another v PT Airfast Services Indonesia and Another Appeal [1992] 2 SLR 776; [1992] SGCA 45 |
| CA 21/1991, 22/1991 | |
| 02 Jul 1992 | |
| Court of Appeal | |
| Chao Hick Tin J, L P Thean J, Yong Pung How CJ | |
| Helen Yeo (Helen Yeo & Partners) for the plaintiffs/appellants, Lee Han Tiong (Lee & Lee) for the defendants/respondents |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] Chao Hick Tin J (delivering the grounds of judgment of the court): 1 These appeals were against the decision of the learned Tan Teow Yeow JC, who on 17 January 1991 ordered that two related actions be stayed. At the conclusion of the hearing, we dismissed the appeals. We now give our reasons. 2 The two actions arose out of an air-crash which occurred on 28 April 1981 at Pekan Baru, North Sumatra, Indonesia. The plaintiff in Suit No 1934 of 1983, John Acton (‘Acton’), was a passenger on that aircraft which belonged to and was operated by the defendants. As a result of the crash, Acton suffered personal injuries. The plaintiffs in Suit No 1933 of 1983 (the other action), Brinkerhoff Maritime Drilling Corp (‘Brinkerhoff’) and Crowley Maritime Corp (‘Crowley’) were the employers and ultimate employers (Crowley is the the holding company of Brinkerhoff) of Acton and six other employees on that flight, of whom three died and three were injured. 3 At the relevant time Acton was engaged by Brinkerhoff to work as an electrician on board a barge, which was anchored in the Straits of Malacca in North Sumatra. The barge was used as a floating platform for the exploration and production of oil and gas. Acton, like all other employees, had to be transported to the barge from Singapore. They would board the defendants’ aircraft in Singapore which would take them to Pekan Baru. From there they would board a helicopter to reach the barge. Acton and the other employees would work on the barge for a period of either one week or two weeks at a stretch, on the expiry of which period they would be transported back to Singapore and would be entitled to a corresponding rest period. The cycle would be repeated in that manner. 4 The defendants were an Indonesian company with their registered office and principal place of business at Jakarta. They owned and chartered out aircraft for the carriage of passengers and cargo. By virtue of an aircraft charter agreement dated 23 February 1981 entered into between the defendants and another Indonesian company, Hudbay Oil (Malacca Strait) Ltd (‘Hudbay Oil’), the defendants agreed to charter to Hudbay Oil a Douglas DC–3/C–47 aircraft for flights from Seletar, Singapore to Pekan Baru and back to Singapore. The route as described in the aircraft charter agreement was ‘Seletar–Pekan Baru–Seletar’. It was not disputed that the chartered agreement was executed by the defendants and Hudbay Oil in Jakarta. 5 Brinkerhoff was the contractor of Hudbay Oil for the purposes of drilling for oil and gas off North Sumatra. It was part of their agreement that Hudbay Oil would make arrangements for the transportation of the employees of Brinkerhoff from Singapore to the barge and return. 6 The flight would usually depart from Seletar, Singapore at 7am on Tuesdays. It would return from Pekan Baru to Singapore the same day at 5pm. The flight time for each way was one hour. On each flight there would usually be employees of other contractors of Hudbay Oil. 7 In Suit No 1934 of 1983, Acton was claiming for damages and loss on account of the injuries he suffered as a result of the air crash. In Suit No 1933 of 1983, Brinkerhoff and Crowley were claiming for indemnity from the defendants for the loss they might suffer on account of the death of or injuries suffered by their employees. They were being sued in the United States by their employees. Both the writs were filed in the High Court on 27 April 1983, just one day before the expiry of the limitation period of two years. Leave was obtained to serve the writs on the defendants out of jurisdiction. The defendants entered conditional appearance and applied by way of summons-in-chambers to set aside the writs; alternatively, they asked that all further proceedings be stayed. The application came before the senior assistant registrar who dismissed it. On appeal by the defendant, the learned judicial commissioner ordered a stay. 8 As both appeals raised identical legal issues, we shall for convenience hereinafter refer only to the appeal in Suit No 1934 of 1983 involving Acton. Both counsel agreed that our decision in one would apply to the other. 9 It was common ground between the parties that both Indonesia and Singapore were and are signatories to the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955, hereinafter referred to simply as ‘the Warsaw Convention’ or ‘the Convention’. Both countries are bound by the Convention. 10 The relevant clauses of the aircraft charter agreement were the following: 29 This agreement is entered into by the charterer both on its own behalf and as agent for all passengers, consignors 32 The carrier’s conditions of contract of passengers, baggage and goods (which are based upon the Convention of 33 This agreement shall be construed and take effect in all respects in accordance with the law where the agreement 11 We would first like to clear a minor point. On p 1 of the top right-hand corner of the aircraft charter agreement, there appears these words ‘Dated at Singapore on 23 February 1981’. Counsel for Acton said that this meant that the agreement was made in Singapore. While the document could have been prepared in Singapore, the undisputed fact is that the execution of the agreement was done by the defendants and Hudbay Oil in Jakarta. In our view, the agreement was made in Jakarta. 12 There are really two main issues in this appeal. One, have the Singapore courts the jurisdiction to hear the claim? Two, if the answer to the first is in the affirmative, should the Singapore courts decline to hear the case on the principles of forum non conveniens? Jurisdiction 13 Counsel for the plaintiffs submitted that the Singapore High Court has, under its municipal laws, jurisdiction to hear the action. She relied upon s 16(1)(a) and (b) of the Supreme Court of Judicature Act (Cap 322) (‘the SCJA’) and art 28(1) of the Warsaw Convention. 14 Section 16(1)(a) and (b) of the SCJA provides that the High Court shall have jurisdiction to try all civil proceedings where ‘the cause of action arose in Singapore’ or ‘the defendant … resides or has his place of business or has property in Singapore’. Furthermore, s 16(2) provides that, without prejudice to s 16(1), the High Court shall have such jurisdiction as is vested in it by any written law. 15 Under art 28(1) of the Warsaw Convention, it provided that ‘an action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination’. 16 We should, at this juncture, observe that it is also common ground between the parties that the articles of the Warsaw Convention have been incorporated as part of the municipal law of Singapore by virtue of the UK Carriage By Air Act 1961. 17 We do not propose to examine the arguments of the appellant based on s 16(1)(a) and (b) of the SCJA. We intend to confine ourselves to an examination of only art 28(1) of the Convention, and even then only the fourth and last limb of it, read with s 16(2) of the SCJA. We think jurisdiction could quite clearly be founded on the fourth limb of art 28(1). 18 In this regard, the first point to consider is whether the Convention applied to those chartered flights provided by the defendants. Article 1(1) provides that the Convention applies to ‘all international carriage of persons, baggage or cargo performed by aircraft for reward’. It also applies to gratuitous carriage. Further, art 1(2) defines international carriage as: … any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. 19 On the facts of the present case, whichever view one may take of that fateful flight boarded by Acton, whether it was intended to be a round trip flight, that is, Seletar/Pekan Baru/Seletar, or whether there was just supposed to be a single flight from Seletar to Pekan Baru (without the return journey) the flight on the sector Seletar/Pekan Baru is clearly an international carriage within the meaning of art 1. 20 It was undisputed that the defendants were not airline operators involved in the provision of regular scheduled flights for the public. They were just owners of aircraft which they chartered out. The charter agreement related to the charter to Hudbay Oil of a DC-3 aircraft for a series of flights between Seletar Airport, Singapore and Pekan Baru and return for a ten-week duration. The defendants claimed that they had no knowledge of the persons whom Hudbay Oil would be transporting on the flights and what the arrangements were between Brinkerhoff and Hudbay Oil. For each flight, Hudbay Oil would provide a list of passengers, setting out their names, nationalities and passport numbers. With this list the defendants would obtain clearance from the immigration and customs departments. Similarly, a list of passengers would be provided for the return flight from Pekan Baru to Singapore. The defendants said that they had no knowledge that the passengers were employees of Hudbay Oil. No tickets were issued by the defendants to any of the passengers. Indeed, under Indonesian law, the defendants were precluded from issuing any tickets. 21 It seems to us quite clear, and bearing in mind cl 29 of the charter agreement, that each time an employee of Brinkerhoff agreed to travel on a flight of the defendants from Seletar to Pekan Baru, and to return one or two weeks later, he must be deemed to have accepted the terms of the arrangement set out in the charter agreement. 22 We find on the evidence, bearing in mind particularly the route specified in the charter agreement, that the ‘place of destination’ of each passenger who boarded the aircraft at Seletar Airport was Singapore, with a break in journey of one or two weeks at Pekan Baru. It was clearly the intention of the parties that each passenger would make a round trip. Otherwise, there would be no need for the charter agreement to provide for the return flight. At the very most, one could say that the date of the return flight for each passenger was left open. But the fact that the date of the return journey was not fixed at the commencement could not alter the position that that was to be a round trip. As is all too common, one may buy a normal return airline ticket and yet leave the date when the return journey is to be made open. 23 Counsel for the respondent sought to rely on the fact deposed to on behalf of the plaintiff, that if an employee should miss the return flight at Pekan Baru, he would take a regular Garuda flight back to Singapore, to show that there was no such intention. In our view, what the intention of the parties was must be determined at the commencement of the journey. In the situation when an employee missed a flight and returned to Singapore by Garuda, that would merely mean that that employee had abandoned that return portion of the journey. It also showed that the employee had the intention to return to Singapore all the time. 24 It is clear that in the case of a return ticket or round trip, it is always regarded from the outset as a single operation, where the place of departure will also be the place of destination. In the context of art 28(1) of the Convention, the place of destination is the place of ultimate destination. In support of this proposition, we will quote from Air Law by Shawcross and Beaumont (4th Ed) at para VII/142 as follows: In the case of return ticket or round trip regarded from the outset as a single operation the place of departure will also be the place of destination. Two decisions of district courts in California have taken a different view; in the case of a ticket for flights Montreal–Los Angeles and open return, Los Angeles was held the place of destination, and in a later case involving a series of flights Jeddah–Santa Barbara–Jeddah (with immediate stops) it was declared, on a ‘common sense’ interpretation of art 28(1) that ‘at least two places of destination exist’ in the case of a round trip. In the text of the convention ‘place of destination’ is used in the singular and the weight of United States authority (including more recent district court decisions in California) favours the view that the single place of destination in such a case is the place of departure. This view has been followed even where two passenger tickets were issued: the intended flights were Madrid–Malaga–New York–Madrid, but as the tickets available contained only two passenger coupons the return leg New York–Madrid was covered by a second ticket issued at the same time as the first; it was held that Madrid was the place of destination, there being a single contract despite the existence of two tickets. Many of the cases involve successive carriage; the place of destination is always the ultimate destination, provided that the parties have regarded the successive carriage as a single operation. It may however be otherwise if a change of itinerary involves a flight regarded by the parties as a separate enterprise. 25 There is also the decision of the English court in Grein v Imperial Airways Ltd where the ticket issued was for London–Antwerp–London. There, the Court of Appeal, by majority, held that there was only one carriage and that it was an international carriage. In that case, the court was concerned with the composite expression ‘place of departure and place of destination’ found in art 1(2) of the Convention. But there cannot be any doubt that the term ‘place of destination’ in art 28(1) and in art 1(2) must mean the same thing. This was how Greene LJ construed the expression in Grein, at pp 78–79: The use of the singular in this expression indicates that in the minds of the parties to the Convention every contract of carriage has one place of departure and one place of destination. An intermediate place at which the carriage may be broken is not regarded as a ‘place of destination’. Having regard to its context, and particularly to the fact that it is in the contract that the place of departure and the place of destination are to be looked for, the meaning of the expression appears to me to be ‘the place at which the eventual carriage ends’. 26 After a review of all the relevant provisions of the Convention Greene LJ concluded as follows (at pp 81–82): The conclusion to which I have come is that the contract by reference to which the place of departure and the place of destination are to be ascertained may be any contract of carriage whether for a single journey, for a circular journey or for a return journey; that the place of departure and the place of destination mean the places at which under the particular contract in question the contractual carriage begins and ends; and that agreed stopping place means any place at which under the particular contract the aeroplane is to descend in foreign territory between the points of departure and destination. In the case of a return journey this will be or include, as the case may be, the place out to and back from which by the contract the passenger is to be carried. In the case of carriage of each type the same essential element is present — namely, the interposition between the beginning and the end of the contractual carriage of an agreed descent in the territory of another state. In each case the mischief requiring to be remedied by the adoption of an international code is the same — namely, the possibility of questions arising between the parties as to the law applicable to the contract which they have made. I cannot find any consistently intelligible meanings for the expressions which I have been discussing which stop short of those which I have placed upon them. 27 In the American case Butz v British Airways where an excursion ticket was issued for London–New York–London, it was held by the US district court in Pennsylvania that the place of destination was London. The judge said: I cannot accept plaintiff’s contention that each place where a particular flight terminated is a ‘place of destination’ since the application of the Convention would vary with each segment of the entire journey. This, of course, would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket. 28 Accordingly, we find that the place of destination of the flight which the plaintiff took on that fateful day was Singapore. Thus the High Court here has jurisdiction over the claim. Forum non conveniens 29 We now turn to consider the second main issue: forum non conveniens. There can be no question that the courts in Indonesia have jurisdiction over this claim. The first three limbs of art 28(1) of the Convention would confer upon the courts in Indonesia that jurisdiction. 30 In this connection, counsel for the plaintiffs urged upon us to draw a line between the law before Spiliada Maritime Corp v Cansulex Ltd, The Spiliada and the law after The Spiliada. She seemed to contend that this court should only apply the law prior to The Spiliada as the cause of the present case arose in 1981 and the suit was filed in 1983. No authority has been cited to us to show that this is the correct approach to adopt in a matter concerning the common law where no legislative amendment is involved. 31 Nevertheless, we will first look at the law before The Spiliada. This is set out in Dicey & Morris, Conflict of Laws (11th Ed) at p 390 as follows: Rule 33(2) As a general rule, in order to justify a stay of English proceedings (a) there must be another forum to whose jurisdiction the defendant is amenable in which justice can be done between the parties at substantially less inconvenience or expense and (b) the stay must not deprive the plaintiff of a legitimate personal or judicial advantage which would be available to him if he invoked the jurisdiction of the English court. 32 This statement of the law was literally lifted up from the speech of Lord Diplock in MacShannon v Rockware Glass Ltd. The learned authors then went on to amplify that rule as follows (at p 393): At the first stage the burden is on the defendant to point to another forum to whose jurisdiction he is amenable and in which justice can be done between the parties at substantially less inconvenience or expense. This forum is sometimes called the natural or appropriate forum. At this stage the court will take into account such factors as the relative connection of the parties and of the subject matter of the action with the foreign court or with England and the convenience of the parties and the witnesses. If the defendant fails to show that some court other than the English court is the natural or appropriate forum, the application to stay on this ground will fail. Once the defendant has satisfied the English court that a foreign court is the natural or appropriate forum, the court must consider whether a stay would deprive the plaintiff of a legitimate personal or juridical advantage. The onus shifts to the plaintiff to put forward some reasonable justification for his choice of the English court. The advantage must be real, ie objectively demonstrated and not merely subjective. If the court is satisfied that a stay would not deprive the plaintiff of a legitimate personal or juridical advantage, then the defendant will be entitled to a stay. If, however, a stay would deprive the plaintiff of a legitimate personal or juridical advantage, than a balance must be struck between advantage and disadvantage to the plaintiff and to the defendant and between the factors favouring a stay and those militating against a stay. 33 In MacShannon, the other two main speeches were made by Lords Salmon and Keith. The approaches they took were not dissimilar to that of Lord Diplock. Lord Salmon said that, if the trial of the action in England would afford the plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried abroad, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some real advantage, a balance would have to be struck. In his view, ultimately the real test for granting a stay depended ‘on what the court in its discretion considers that justice demands’. Lord Keith (at pp 644–645) seemed to think that in a case of this nature it would be necessary to weigh all the relevant considerations. 34 We do not think that The Spiliada introduced radical changes to the law. Admittedly, in MacShannon there was no express acceptance of the doctrine of forum non conveniens which was of Scottish origin. But even in MacShannon Lord Diplock recognized that there might well be very little difference between the statement of the law as he had enunciated and the Scottish doctrine of forum non conveniens. By 1984, in the case The Abidin Daver, at p 411, Lord Diplock had to admit that there was really no difference between the English and the Scottish positions. This was what he said: … the essential change in the attitude of the English courts to pending or prospective litigation in foreign jurisdictions that has been achieved step-by-step during the last ten years as a result of the successive decisions of this House in The Atlantic Star 35 The Spiliada was a case concerning the granting of leave under O 11 r 1(1) of the Rules of the Supreme Court 1970 to serve proceedings out of the jurisdiction. The House of Lords held that the principles governing the granting of such leave were the same as those applicable to a stay of English proceedings. Lord Goff, who delivered the judgment of the House, to which the other four Law Lords agreed, restated the law (and in so restating, took into account the Scottish authorities as well) which is summarized in the third cumulative supplement to Dicey & Morris on Conflict of Laws (11th Ed) at para 393–395 as follows: (a) the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is (b) the legal burden of proof is on the defendant, but the evidential burden will rest on the party who asserts the (c) the burden is on the defendant to show both that England is not the natural or appropriate forum, and also that (d) the court will look to see what factors there are which point to the direction of another forum, as being the forum (e) if at that stage the court concludes that there is no other available forum which is clearly more appropriate it will (f) if there is another forum which prima facie is clearly more appropriate the court will ordinarily grant a stay unless 36 Reverting to the instant case, the following facts were not in dispute. The accident which gave rise to the present action took place in Pekan Baru, Indonesia. The aircraft in question was registered in Indonesia and was subject to Indonesian law. The owners of the aircraft are the defendants, an Indonesian company, with their registered office and principal place of business in Indonesia. The aircraft was subject to the standards of airworthiness prescribed by the Indonesian aviation authorities. The crew of the aircraft were licensed by the Indonesian authorities and were subject to Indonesian law. The evidence relating to the air-crash, including the witnesses, would be found in Indonesia. The witnesses would include not only those who saw the crash, but also the officials from the various Indonesian authorities like the Indonesian air traffic control department, the Indonesian airworthiness division, the Indonesian flight safety division, the Indonesian pilot licensing department and the Indonesian meteorological department. The investigators who conducted the investigations into the crash are also from Indonesia. It must further be borne in mind that the plaintiff’s claim is based on unworthiness of the aircraft. In short, it is clear that the whole transaction has more real and substantial connections with Indonesia than with Singapore. 37 The plaintiff, Acton, is an American citizen who was, at the time of the accident, living in Bangkok. His presence in Singapore was only temporary. At the time of the institution of the action, he was residing at his home town in the state of Arizona, USA. He then had no connection whatsoever with Singapore other than the fact that he boarded the aircraft here. He still has no connection with Singapore. No evidence was tendered to show why the action could not have been instituted in Indonesia in the first place. Similarly, no evidence was tendered to show that there would be any personal or juridical advantages in proceeding in Singapore. 38 In our judgment, Indonesia is undoubtedly the more appropriate forum to hear the claim of the plaintiff. The plaintiff has not made any effort to show why a stay should not be granted other than to say that the action would now be time-barred in Indonesia. As we have stated above, when the plaintiff filed the action in Singapore, there was only one day left before the two-year limitation period would apply. On this point we can do no better than quote Lord Goff in The Spiliada, at p 860, where he said the following: Let me consider how the principle of forum non conveniens should be applied in a case in which the plaintiff has started proceedings in England where his claim was not timebarred, but there is some other jurisdiction which, in the opinion of the court, is clearly more appropriate for the trial of the action, but where the plaintiff has not commenced proceedings and where his claim is now time-barred. Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed, a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of action, a stay should generally be granted even though the plaintiff’s action would be time-barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for example by issuing a protective writ) in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country. 39 Nothing was placed before the court to explain why the plaintiff left it so late until the very last day to file the writ in Singapore and nothing was said why the plaintiff did not proceed in Indonesia, bearing in mind that Indonesia is also a party to the Warsaw Convention. There was nothing before us to show that the plaintiff had acted reasonably in not commencing proceedings in Indonesia. No real explanation was offered why he chose Singapore. If it were proper in a case such as this not to grant a stay merely on the ground that the action would be timebarred in the jurisdiction where the action should more appropriately be commenced, it would mean that a plaintiff could simply wait until the very last minute to file the proceedings in the jurisdiction of his choice, leaving the court of that jurisdiction no option to determine otherwise. There might have been some basis for consideration if the plaintiff had instituted the action here in good time and the defendants had failed to apply, with due despatch, for a stay until the limitation period had expired. On the facts now before us, there is plainly no basis whatsoever for the court to exercise its discretion in favour of the plaintiff. The plaintiff has not discharged the burden of showing that there are special circumstances by reason of which the trial of this action should, nevertheless, take place in Singapore. The plaintiff must bear the consequences of his own default. 40 In passing, we wish to add that in determining that Indonesia is the more appropriate forum, we have not taken into account cl 33 of the charter agreement which provides that the agreement shall be construed in accordance with the law where the agreement was made and that any action arising out of the agreement shall be brought in the courts where the agreement was made. This is because cl 33 can have no effect, it being contrary to art 32 of the Warsaw Convention which reads: Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by attesting the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28. 41 For the reasons above, we dismissed the two appeals. Appeals dismissed Reported by Joan Francis
and consignees and other persons having any interest in the baggage and cargo carried pursuant to this
agreement.
Warsaw of 12 October 1929 as amended by the Hague Protocol 1955 whichever may be applicable to carriage
hereunder) shall be deemed to be incorporated herein in so far as the same are applicable thereto and are not
inconsistent with the conditions of this agreement.
is made, and any action arising out of this agreement or the execution or performance thereof shall be brought in
the courts where the agreement is made, unless the carrier elects or approves otherwise.
satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for
the trial of the action, ie in which the case may be tried more suitably for the interest of all the parties and the ends
of justice;
existence of a relevant factor;
there is another available forum which is clearly or distinctly more appropriate than the English forum;
with which the action has the most real and substantial connection, eg factors affecting convenience or expense
(such as availability of witnesses), the law governing the transaction, and the places where the parties reside or
carry on business;
ordinarily refuse a stay;
there are circumstances by reason of which justice requires that a stay should not be granted, and, in this inquiry
the court will consider all the circumstances of the case. But the mere fact that the plaintiff has a legitimate personal
or juridical advantage in proceeding in England is not decisive; regard must be had to the interests of all the parties
and the ends of justice.