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Aerospatiale V. Lee Kui Jack Notes

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FACTS On 16 December 1980 a Puma 330J helicopter crashed near Kuala Belait in Brunei.
There were 12 people on board: all were killed. Among those killed was Yong Joon
San (home was in Brunei).
The Puma helicopter which crashed was manufactured by S.N.I.A.S. in France in

1978. S.N.I.A.S. is a French company in the ownership of the French state. The
helicopter in question was owned by an English company, British and Commonwealth
Shipping Co. (Aviation) Ltd. ("British and Commonwealth"); but it was at all material
times operated and serviced by Bristow Helicopters Malaysia Sdn. Bhd. ("Bristow
Malaysia"), an associated company of Bristow Helicopters Ltd. ("Bristow U.K."), and
was under contract to Sarawak Shell Bhd. and so was based at Miri Airport in
Sarawak. Cause of the accident was identified as a problem with the maintenance of the
gearbox of the helicopter. Proceedings were started by Yong Joon San's widow, Lee Kui Jak, on her own behalf
as widow and (with her husband's brother) as administrator of her husband's estate. Three sets of proceedings: Three sets of proceedings were started, in December 1981, in Brunei, France, and
Texas respectively. The Brunei proceedings were issued on 9 December 1981 against
Bristow Malaysia as first defendants and S.N.I.A.S. as second defendants; they were
served on S.N.I.A.S. in December 1982. It was alleged that Bristow Malaysia were
solely responsible for the accident; as against S.N.I.A.S., allegations were made of
negligent design and manufacture, but no particulars were given. The French
proceedings were against S.N.I.A.S. alone. No further steps were taken in those
proceedings, and they have been discontinued long ago. The Texas proceedings were
also issued on 9 December 1981. Among the plaintiffs was a Richard J. Kittrell; it
appears that he is a New York attorney who was appointed administrator for the
purpose of the proceedings, and was as such simply a nominal plaintiff. There were
eight defendants in the Texas proceedings, who fall into three groups: (1) S.N.I.A.S.,
together with two United States associates of S.N.I.A.S. ­ Aerospatiale Helicopter
Corporation ("A.H.C."), a Texas corporation, and European Aerospace Corporation
("E.A.C."), a Delaware corporation. (2) Bristow Malaysia, together with two United
States associated companies ­ Bristow Helicopters Inc., a Connecticut corporation,
and Bristow Offshore Helicopters Inc., a Texas corporation. (3) Sarawak Shell Bhd.,
together with Shell Oil Co., a Delaware corporation. The plaintiffs' claim against
S.N.I.A.S. was advanced under the Texas Wrongful Death Statute (section 71.031 of
the Texas Civil Practice and Remedies Code)­ jurisdiction being asserted on the basis
that S.N.I.A.S. were doing business in Texas by selling their products to purchasers in
Texas. Texas proceeedings were initiated because of (1) the more favourable Texas law
on product liability, and (2) the higher level of damages awarded in courts in the
United States.

Settlement with Bristow and Shell Companies: In the course of 1983, an agreement
was reached whereby all proceedings as between the plaintiffs on the one hand, and
the Bristow companies and the Shell companies on the other hand, were settled. A
general release was granted to these companies by the plaintiffs and by Richard
Kittrell. The settlement, together with an apportionment between the widow and her
three children, was approved by the Chief Registrar in Brunei on 20 June 1984.
S.N.I.A.S. were not parties to the settlement, and their Lordships were told that
they were never invited to be parties to it. In December 1986, having failed in their attempts to obtain dismissal of the
proceedings against them and their associated companies in Texas, S.N.I.A.S. turned
their attention to the possibility of obtaining an injunction from the Brunei court
restraining the plaintiffs from continuing the Texas proceedings. Undertakings by parties in Brunei Proceedings: Furthermore, during the hearing
undertakings were given by both sides, no doubt with a view to fortifying their
respective positions. The plaintiffs first stated that, if S.N.I.A.S. wished for trial by
judge alone in Texas, the plaintiffs would agree to such a trial. Second, they accepted
that, the law of Brunei being applicable both as to liability and quantum in respect of
the trial of the matter in Texas, no claim lay against S.N.I.A.S. either (a) in
consequence of strict liability, or (b) for punitive damages. SNIAS also gave
undertakings including the following: (a) That the Texas proceedings shall be
permitted to continue until completion of pre­trial discovery; (b) To cooperate in
every practicable way in the admission to the Bar of Brunei Darussalam as ad hoc
members for the purposes of this action of: William Thomas Jacks and Richard
Warner Mithoff. SNIAS claiming contribution from Bristow: In the course of the hearing before the
Court of Appeal, a contribution notice was served on Bristow Malaysia by S.N.I.A.S.
It has been suggested that this was in fact too late, because Bristow Malaysia were no
longer parties to the action. But this was disputed, and in any event Bristow Malaysia
have indicated their readiness to accept service within the jurisdiction of the Brunei
court of any third party notice issued by S.N.I.A.S. It appears that, whereas Bristow
Malaysia are vigorously resisting Texas jurisdiction on the ground that they have never
done business in Texas, they have indicated their readiness to submit to the
jurisdiction of the courts in Brunei to enable the whole case to be determined there.
On the same day, 18 March 1987, S.N.I.A.S. accepted service of a writ issued against
them on 16 December 1986 (one day before the expiry of the limitation period) by the
owners of the crashed helicopter together with the insurers of the hull. Holding LORD GOFF Basic Principles First, the jurisdiction is to be exercised when the "ends of justice" require it.

Second, where the court decides to grant an injunction restraining proceedings in a
foreign court, its order is directed not against the foreign court but against the
parties so proceeding or threatening to proceed. Third, it follows that an injunction will only be issued restraining a party who is
amenable to the jurisdiction of the court, against whom an injunction will be an
effective remedy. Fourth, it has been emphasised on many occasions that, since such an order indirectly
affects the foreign court, the jurisdiction is one which must be exercised with caution.

Jurisdiction to protect integrity of English Proceedings Their Lordships were helpfully taken through many of the authorities by counsel in
the present case. One such category of case arises where an estate is being
administered in this country, or a petition in bankruptcy has been presented in this
country, or winding up proceedings have been commenced here, and an injunction is
granted to restrain a person from seeking, by foreign proceedings, to obtain the sole
benefit of certain foreign assets. In such cases, it may be said that the purpose of the
injunction is to protect the jurisdiction of the English court. Indeed, one of their
Lordships has been inclined to think that such an idea generally underlies the
jurisdiction to grant injunctions restraining the pursuit of foreign proceedings: but
their Lordships are persuaded that this is too narrow a view. Vexatious and Oppressive Another important category of case in which injunctions may be granted is where the
plaintiff has commenced proceedings against the defendant in respect of the same
subject matter both in this country and overseas, and the defendant has asked the
English court to compel the plaintiff to elect in which country he shall alone proceed.
In such cases, there is authority that the court will only restrain the plaintiff from
pursuing the foreign proceedings if the pursuit of such proceedings is regarded as
vexatious or oppressive. The old principle that an injunction may be granted to restrain the pursuit of foreign
proceedings on the grounds of vexation or oppression, though it should not be
regarded as the only ground upon which the jurisdiction may be exercised, is of
such importance, and of such apparent relevance in the present case, that it is desirable
to examine it in a little detail. As with the basic principle of justice underlying the
whole of this jurisdiction, it has been emphasised that the notions of vexation and
oppression should not be restricted by definition. In Peruvian Guano Co. v. Bockwoldt (1883) 23 Ch.D. 225, 230, Jessel M.R. gave two
examples of vexatious proceedings. One, which he called pure vexation, occurs when
the proceedings are so utterly absurd that they cannot possibly succeed. Another
occurs when the plaintiff, not intending to annoy or harass the defendant, but thinking
he could get some fanciful advantage, sues him in two courts at the same time

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