The facts of the case were these. C were exporters of sulphur from British Columbia. S was a Liberian shipowner, whose ships were managed from Greece and England. S chartered a ship to M, an Indian company, under a voyage charter to carry sulphur from British Columbia to India. The sulphur, it was alleged, was wet (and therefore dangerously corrosive) when loaded, and S argued that the sulphur had caused damage to the ship2. The bill of lading was expressed to be governed by English law, and S sought leave to serve C out of the jurisdiction under R.S.C Ord. XI, r. 1(i)(f)(iii)3. Leave was obtained, and an application to set it aside was refused by Staughton, J., on the ground that trial of the issue in England was appropriate in the circumstances. His decision was reversed by the Court of Appeal, but restored by the House of Lords. The House concurred in the opinion of Lord Goff of Chieveley; Lord Templeman also delivered a brief opinion in which Lord Griffiths and Lord Mackay concurred.

Lord Goff’s judgment boils down to the following points:

(a) On an application for leave to serve out under Ord. XI, the main consideration is to determine whether England is shown by the intending plaintiff (here S) to be clearly the most appropriate forum.

(b) The burden of proof is on the plaintiff to prove this, and in doing this, it is not possible to list or limit the factors which will be relevant. Any factor which tends to show England to be clearly the most appropriate forum should be raised; for the defendant, any factor which tends to show England not to be clearly the most appropriate forum can be deployed in opposition to the plaintiff’s case.

(c) Apart from the usual considerations of location of witnesses and so on, the