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*403 Pearce v Ove Arup Partnership Ltd. and Others Court of Appeal 21 January 1999 [2000] 3 W.L.R. 332 [2000] Ch. 403 Roch L.J. , Chadwick L.J. and May L.J. 1998 Nov. 23, 24, 25; 1999 Jan. 21 Conflict of Laws—Copyright—Jurisdiction under European Convention—Action in England for infringement of Dutch copyright—One defendant domiciled in United Kingdom—English court having jurisdiction— Whether claim for infringement of Dutch copyright justiciable in England— Civil Jurisdiction and Judgments Act 1982 (c. 27), Sch. 1 (as substituted by Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 1990 (S.I. 1990 No. 2591), art. 6(1) — Berne Convention of the International Union for the Protection of Literary and Artistic Works 1886 as revised (1990) (Cm. 1212), art. 5(2) 1 2 In 1986 the plaintiff created original drawings and plans for a town hall as an exercise while he was an architectural student in London. The second defendant, his tutor who was an architect and director of the third defendant, was alleged to have taken copies of the drawings in 1986. In 1996 the plaintiff brought an action for breach of his United Kingdom and Dutch copyright, alleging that the second and third defendants had used his drawings in designing a building in Rotterdam constructed between 1990 and 1993 by the first defendant, a firm of civil engineers domiciled in the United Kingdom, and owned by the fourth defendant. The plaintiff sought injunctions to restrain infringement of both copyrights and damages or an account of profits. The defendants applied to strike out the statement of claim as an abuse of process on the grounds that actions for breach of Dutch copyright were not justiciable in the English courts and that in any event the action was purely speculative. The judge accepted that the English court had jurisdiction under articles 2 and 6 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 to entertain a claim for breach of Dutch copyright against a defendant domiciled in the United Kingdom or in contracting states but struck out the action as speculative and an abuse of process. The plaintiff appealed, and the defendants by respondent's notices sought to affirm the judge's ruling on the ground that the alleged infringements of Dutch copyright were not actionable torts under English law. On the appeal:— Held, allowing the appeal, that English conflict of law rules did not require the court to regard as local, and therefore to refuse to entertain, a claim in respect of the alleged infringement, by acts done outside the United Kingdom in a state which was a contracting party to the Convention of 1968, of a statutory intellectual property right granted by that state; that, in those circumstances, the court was not required by the double actionability rule to hold that the claim was bound to fail on the basis that acts done in Holland could not amount to an infringement of a United Kingdom copyright; that the provisions of the Convention of 1968 were not excluded from applying to such a claim by article 5(2) of the Berne Convention of the International Union for the Protection of Literary and Artistic Works 1886 , *404 which did not seek to confer jurisdiction relating to infringement of copyright on the courts of one country to the exclusion of any other but left it to the courts in the country where proceedings were brought to decide whether the claim for protection should be upheld; that, therefore, since the English court had to accept

Pearce v Ove Arup Partnership Ltd. and Others

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*403Pearce v Ove Arup Partnership Ltd. and OthersCourt of Appeal21 January 1999[2000] 3 W.L.R. 332[2000] Ch. 403Roch L.J. , Chadwick L.J. and May L.J.1998 Nov. 23, 24, 25; 1999 Jan. 21Conflict of LawsCopyrightJurisdiction under European ConventionAction in England for infringement of Dutch copyrightOne defendant domiciled in United KingdomEnglish court having jurisdictionWhether claim for infringement of Dutch copyright justiciable in EnglandCivil Jurisdiction and Judgments Act 1982 (c. 27), Sch. 1(as substituted byCivil Jurisdiction and Judgments Act 1982 (Amendment) Order 1990 (S.I. 1990 No. 2591), art. 6(1) Berne Convention of the International Union for the Protection of Literary and Artistic Works 1886 as revised (1990) (Cm. 1212), art. 5(2)12In 1986 the plaintiff created original drawings and plans for a town hall as an exercise while he was an architectural student in London. The second defendant, his tutor who was an architect and director of the third defendant, was alleged to have taken copies of the drawings in 1986. In 1996 the plaintiff brought an action for breach of his United Kingdom and Dutch copyright, alleging that the second and third defendants had used his drawings in designing a building in Rotterdam constructed between 1990 and 1993 by the first defendant, a firm of civil engineers domiciled in the United Kingdom, and owned by the fourth defendant. The plaintiff sought injunctions to restrain infringement of both copyrights and damages or an account of profits. The defendants applied to strike out the statement of claim as an abuse of process on the grounds that actions for breach of Dutch copyright were not justiciable in the English courts and that in any event the action was purely speculative. The judge accepted that the English court had jurisdiction under articles 2 and 6 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 to entertain a claim for breach of Dutch copyright against a defendant domiciled in the United Kingdom or in contracting states but struck out the action as speculative and an abuse of process. The plaintiff appealed, and the defendants by respondent's notices sought to affirm the judge's ruling on the ground that the alleged infringements of Dutch copyright were not actionable torts under English law.On the appeal:Held, allowing the appeal, that English conflict of law rules did not require the court to regard as local, and therefore to refuse to entertain, a claim in respect of the alleged infringement, by acts done outside the United Kingdom in a state which was a contracting party to the Convention of 1968, of a statutory intellectual property right granted by that state; that, in those circumstances, the court was not required by the double actionability rule to hold that the claim was bound to fail on the basis that acts done in Holland could not amount to an infringement of a United Kingdom copyright; that the provisions of the Convention of 1968 were not excluded from applying to such a claim by article 5(2) of the Berne Convention of the International Union for the Protection of Literary and Artistic Works 1886 ,*404which did not seek to confer jurisdiction relating to infringement of copyright on the courts of one country to the exclusion of any other but left it to the courts in the country where proceedings were brought to decide whether the claim for protection should be upheld; that, therefore, since the English court had to accept jurisdiction against the defendants under article 6(1) of the Convention of 1968 and could entertain an action for breach of Dutch copyright, the plaintiff had been entitled to sue in England for such a breach; that, on the evidence before him, the judge had erred in striking out the claim as speculative and an abuse of process; and that, accordingly, the action should be allowed to proceed to trial with the plaintiff's portfolio of drawings used as a forensic aid to issues of similarity (post, pp. 419F, 422G-H, 436C-D, 442C-F, 444F-445B).Red Sea Insurance Co. Ltd. v. Bouygues S.A. [1995] 1 A.C. 190, P.C. applied.Phillips v. Eyre (1870) L.R. 6 Q.B. 1 andBritish South Africa Co. v. Companhia de Moambique [1893] A.C. 602, H.L.(E.) considered.Def Lepp Music v. Stuart-Brown [1986] R.P.C. 273andTyburn Productions Ltd. v. Conan Doyle [1991] Ch. 75 distinguished.Decision of Lloyd J. [1997] Ch. 293; [1997] 2 W.L.R. 779; [1997] 3 All E.R. 31 reversed.The following cases are referred to in the judgment of the court: Bauman v. Fussell [1978] R.P.C. 485, C.A.. Boston Scientific Ltd. v. Cordis Corporation (unreported), 18 November 1997; Court of Appeal (Civil Division) Transcript No. 1838 of 1997, C.A. . Boys v. Chaplin [1968] 2 Q.B. 1; [1968] 2 W.L.R. 328; [1968] 1 All E.R. 283, C.A..;[1971] A.C. 356; [1969] 3 W.L.R. 322; [1969] 2 All E.R. 1085, H.L.(E.). British South Africa Co. v. Companhia de Moambique [1892] 2 Q.B. 358, C.A..;[1893] A.C. 602, H.L.(E.) . Deeks v. Wells [1933] 1 D.L.R. 353, P.C. . Def Lepp Music v. Stuart-Brown [1986] R.P.C. 273 Doulson v. Matthews (1792) 4 Durn. &; E. 503 Fort Dodge Animal Health Ltd. v. Akzo Nobel N.V. [1998] F.S.R. 222, C.A.. Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd. [1979] A.C. 508; [1978] 3 W.L.R. 378; [1978] 2 All E.R. 1168, H.L.(E.). Khan v. Kensington and Chelsea Royal London Borough Council (unreported), 10 October 1990; Court of Appeal (Civil Division) Transcript No. 850 of 1990, C.A. . Ladd v. Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, C.A.. Langdale v. Danby [1982] 1 W.L.R. 1123; [1982] 3 All E.R. 129, H.L.(E.). Lawrance v. Lord Norreys (1890) 15 App.Cas. 210, H.L.(E.) . Mlnlycke A.B. v. Procter & Gamble Ltd. [1992] 1 W.L.R. 1112; [1992] 4 All E.R. 47, C.A.. Norbert Steinhardt and Son Ltd. v. Meth (1961) 105 C.L.R. 440 Phillips v. Eyre (1870) L.R. 6 Q.B. 1 Potter v. Broken Hill Pty. Co. Ltd. (1906) 3 C.L.R. 479 Red Sea Insurance Co. Ltd. v. Bouygues S.A. [1995] 1 A.C. 190; [1994] 3 W.L.R. 926; [1994] 3 All E.R. 749, P.C.. Reg. v. International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd., Ex parte Else (1982) Ltd. [1993] Q.B. 534; [1993] 2 W.L.R. 70; [1993] 1 All E.R. 420, C.A..*405*405 Rudra v. Abbey National Plc. (1998) 76 P. &; C.R. 537, C.A. . Skinner v. East India Co. (1666) 6 St.Tr. 710 Tyburn Productions Ltd. v. Conan Doyle [1991] Ch. 75; [1990] 3 W.L.R. 167; [1990] 1 All E.R. 909 Weller v. Dunbar (unreported), 27 January 1984; Court of Appeal (Civil Division) Transcript No. 18 of 1984, C.A.. Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.. Williams v. Attridge Solicitors (unreported), 8 July 1997; Court of Appeal (Civil Division) Transcript No. 1144 of 1997, C.A. . Woodhouse v. Consolidated Property Corporation Ltd. (1992) 66 P. &; C.R. 234, C.A. .The following additional cases were cited in argument: AM Computer Technology Ltd. v. 4-Sight Ltd. (unreported), 14 January 1992, Parker J. A-Z Couriers Ltd. v. Comspec Computer Software Ltd. (unreported), 9 November 1988, Aldous J . Buttes Gas and Oil Co. v. Hammer [1982] A.C. 888; [1981] 3 W.L.R. 787; [1981] 3 All E.R. 616, H.L.(E.). Canada Trust Co. v. Stolzenberg (No. 4) , The Times, 14 May 1998; Court of Appeal (Civil Division) Transcript No. 665 of 1998, C.A. . Chiron Corporation v. Murex Diagnostics Ltd. (No. 2) [1994] F.S.R. 187, C.A.. Coin Controls Ltd. v. Suzo International (U.K.) Ltd. [1999] Ch. 33; [1998] 3 W.L.R. 420; [1997] 3 All E.R. 45 Davey v. Bentinck [1893] 1 Q.B. 185, C.A.. Duijnstee v. Goderbauer (Case 288/82) [1983] E.C.R. 3663, E.C.J. . Duke v. Reliance Systems Ltd. [1988] Q.B. 108; [1987] 2 W.L.R. 1225; [1987] 2 All E.R. 858, C.A.. Handelskwekerij G.J. Bier B.V. v. Mines de Potasse d'Alsace S.A. (Case 21/76) [1978] Q.B. 708; [1977] 3 W.L.R. 479; [1976] E.C.R. 1735, E.C.J.. Harrods (Buenos Aires) Ltd. (No. 2), In re [1992] Ch. 72; [1991] 3 W.L.R. 397; [1991] 4 All E.R. 348, C.A.. James Burrough Distillers Plc. v. Speymalt Whisky Distributors Ltd. [1991] R.P.C. 130 Kalfelis v. Bankhaus Schrder, Mnchmeyer, Hengst and Co. (Case 189/87) [1988] E.C.R. 5565, E.C.J.. Kongress Agentur Hagen G.m.b.H. v. Zeehaghe B.V. (Case C-365/88) [1990] E.C.R. I-1845, E.C.J. . L.A. Gear Inc. v. Gerald Whelan & Sons Ltd. [1991] F.S.R. 670 Langley v. North West Water Authority [1991] 1 W.L.R. 697; [1991] 3 All E.R. 610, C.A.. McDonald's Corporation v. Steel [1995] 3 All E.R. 615, C.A.. Mecklermedia Corporation v. D.C. Congress G.m.b.H. [1998] Ch. 40; [1997] 3 W.L.R. 479; [1998] 1 All E.R. 148 Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379; [1955] 2 W.L.R. 672; [1955] 1 All E.R. 708, C.A.. Plastus Kreativ A.B. v. Minnesota Mining and Manufacturing Co. [1995] R.P.C. 438 Rutten v. Cross Medical Ltd. (Case C-383/95) [1997] I.C.R. 715; [1997] E.C.R. I-57; [1997] All E.R. (E.C.) 121, E.C.J.. Sanicentral G.m.b.H. v. Collin (Case 25/79) [1979] E.C.R. 3423, E.C.J. . Shevill v. Press Alliance S.A. (Case C-68/93) [1995] 2 A.C. 18; [1995] 2 W.L.R. 499; [1995] All E.R. (E.C.) 289, E.C.J..*406*406 Star News Shops Ltd. v. Stafford Refrigeration Ltd. [1998] 1 W.L.R. 536; [1998] 4 All E.R. 408, C.A.. Upjohn Co. v. T. Kerfoot & Co. Ltd. [1988] F.S.R. 1 Williams v. Glasbrook Brothers Ltd. [1947] 2 All E.R. 884, C.A..Appeal from Lloyd J.By a writ endorsed with a statement of claim dated 25 September 1996 and an amended statement of claim dated 30 October 1996 the plaintiff, Gareth Pearce, brought an action against the defendants, (1) Ove Arup Partnership Ltd., a firm of civil engineers domiciled in the United Kingdom, (2) Remment Koolhaas, an architect, (3) Office for Metropolitan Architecture (O.M.A.) Stedebouw B.V., of which the second defendant was a director, and (4) the City of Rotterdam, for, inter alia, injunctions restraining the defendants from infringing the plaintiff's United Kingdom and Dutch copyright in drawings and plans for a town hall in Docklands, London in the construction of the Kunsthal in Rotterdam and inquiries as to damages for infringement or an account of profits.By a notice of motion dated 16 December 1996 the second, third and fourth defendants sought, inter alia, an order striking out the amended statement of claim on the grounds that the alleged acts of infringement of Dutch copyright did not constitute actionable torts under English law; alternatively that the allegations were speculative; or alternatively that the action was frivolous, vexatious and an abuse of the process of the court and had been brought outside the statutory limitation period. By an order dated 7 March 1997 Lloyd J. struck out the plaintiff's claim as speculative and as an abuse of process.By a notice of appeal dated 7 September 1997 with leave granted by Aldous L.J. on 15 August 1997 the plaintiff appealed, seeking an order (i) to dismiss the application of the second, third and fourth defendants to strike out the amended statement of claim and (ii) to strike out sentences from the defences of the first to fourth defendants which alleged that infringement of Dutch copyright was not an actionable tort in English law as disclosing no reasonable defence, on the grounds, inter alia, that the judge had erred (1) in law by determining on the striking-out application whether there was sufficient similarity between the plaintiff's plans and the defendants' plans, which should only have been determined at the trial of the action; (2) in failing to pay regard to the principle that the power to strike out should only be exercised in plain and obvious cases or where it was beyond doubt that the action could not succeed; (3) in finding there was insufficient similarity between the plaintiff's plans and the defendants' plans and the hall as built to give rise to an inference of copying; (4) in failing to pay sufficient regard to the fact that the plaintiff claimed that the plans had been physically or mechanically copied; (5) in finding features militating against the inference of copying when there was an increased likelihood of copying; and (6) in placing undue weight on the evidence of the second defendant.By applications dated 23 September 1997 and 29 September 1997 the first, second, third and fourth defendants sought leave to serve respondent's notices seeking to affirm the judge's order on the alternative*407ground that infringement of Dutch copyright was not justiciable in English law.At the hearing the plaintiff sought leave to adduce further evidence.The facts are stated in the judgment of the court.Julia Clarkfor the plaintiff. Where there has not been a trial or hearing on the merits,Ladd v. Marshall [1954] 1 W.L.R. 1489does not apply: seeStar News Shops Ltd. v. Stafford Refrigeration Ltd. [1998] 1 W.L.R. 536. An application to strike out is not a hearing on the merits: see Williams v. Attridge Solicitors (unreported), 8 July 1997; Court of Appeal (Civil Division) Transcript No. 1144 of 1997 .A decision of a two-judge Court of Appeal Williams v. Attridge is binding on the full court sinceBoys v. Chaplin [1968] 2 Q.B. 1does not reflect current practice: seeLangley v. North West Water Authority [1991] 1 W.L.R. 697. The decision in Williams v. Attridge was not per incuriam. [Reference was made toDuke v. Reliance Systems Ltd. [1988] Q.B. 108;Woodhouse v. Consolidated Property Corporation Ltd. (1992) 66 P. & C.R. 234andLangdale v. Danby [1982] 1 W.L.R. 1123;Williams v. Glasbrook Brothers Ltd. [1947] 2 All E.R. 884;Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379; Khan v. Kensington and Chelsea Royal London Borough Council (unreported), 10 October 1990 ; Court of Appeal (Civil Division) Transcript No. 850 of 1990;Weller v. Dunbar (unreported), 27 January 1984; Court of Appeal (Civil Division) Transcript No. 18 of 1994 andRudra v. Abbey National Plc. (1998) 76 P. & C.R. 537.]Justice requires the admission of relevant and credible evidence not adduced at trial through a legal adviser's mistake. There was, in any event, a limited opportunity for putting the plaintiff's evidence before the judge: compare Canada Trust Co. v. Stolzenberg (No. 4), The Times, 14 May 1998 ; Court of Appeal (Civil Division) Transcript No. 665 of 1998.The test to apply to a decision to strike out is whether the judge was plainly wrong: seeChiron Corporation v. Murex Diagnostics Ltd. (No. 2) [1994] F.S.R. 187. A plaintiff should not be deprived of the right to trial unless the pleading is "incurably bad:"McDonald's Corporation v. Steel [1995] 3 All E.R. 615. The action should not be struck out even if the allegation in the pleadings is improbable and difficult to believe: see Lawrance v. Lord Norreys (1890) 15 App.Cas. 210 . There should not be a minute and protracted examination of the documents and facts of the case: seeWenlock v. Moloney [1965] 1 W.L.R. 1238.In the cases relied on by the defendants before the judge there was no factual dispute between the parties which the judge had to resolve: seeUpjohn Co. v. T. Kerfoot & Co. Ltd. [1988] F.S.R. 1; A-Z Couriers Ltd. v. Comspec Computer Software Ltd. (unreported), 9 November 1988 and A.M. Computer Technology Ltd. v. 4-Sight Ltd. (unreported), 14 January 1992 . Here, the only issue with which the judge was concerned was sufficient similarity, a question of mixed fact and law which is inherently unsuitable for determination in an interlocutory application.The defendants' cross appeal is unlikely to succeed: seeFort Dodge Animal Health Ltd. v. Akzo Nobel N.V. [1998] F.S.R. 222. [Reference was also made toCoin Controls Ltd. v. Suzo International (U.K.) Ltd. [1999] Ch. 33; Boston Scientific Ltd. v. Cordis Corporation (unreported), 18 November 1997 ; Court of Appeal (Civil Division) Transcript No. 1838 of 1997;*408Mlnlycke A.B. v. Procter & Gamble Ltd. [1992] 1 W.L.R. 1112and Duijnstee v. Goderbauer (Case 288/82) [1983] E.C.R. 3663 .]The judge was correct in holding that the rule inBritish South Africa Companhia de Moambique [1892] 2 Q.B. 358and the double actionability rule did not preclude the court from hearing an action which, under the Convention of 1968, may or must be brought in the English court: seeHandelskwekerij G. J. Bier B.V. v. Mines de Potasse d' Alsace S.A. (Case 21/76) [1978] Q.B. 708;Kalfelis v. Bankhaus Schrder, Mnchmeyer, Hengst and Co. (Case 189/87) [1988] E.C.R. 5565; Sanicentral G.m.b.H. v. Collin (Case 25/79) [1979] E.C.R. 3423 ; Kongress Agentur Hagen G.m.b.H. v. Zeehaghe B.V. (Case C-365/88) [1990] E.C.R. 1-1845 ;Shevill v. Press Alliance S.A. (Case C-68/93) [1995] 2 A.C. 18andRutten v. Cross Medical Ltd. (Case C-383/95) [1997] I.C.R. 715.TheMoambiquerule was applied by analogy to patents in Potter v. Broken Hill Pty. Co. Ltd. (1906) 3 C.L.R. 479 and Norbert Steinhardt and Son Ltd. v. Meth (1961) 105 C.L.R. 440 , but the reasoning in those cases cannot be sustained in the context of the U.K.'s accession to the Convention of 1968. [Reference was made toDef Lepp Music v. Stuart-Brown [1986] R.P.C. 273;Tyburn Productions Ltd. v. Conan Doyle [1991] Ch. 75andIn re Harrods (Buenos Aires) Ltd. (No. 2) [1992] Ch. 72.]There are two further reasons why the plaintiff's claim can be brought in the English court. (1) If the doctrine that the locality of the act is inseparable from the wrong is relinquished, the plaintiff's claim satisfies the double actionability rule. (2) The case falls within the exception in rule 203(2) (seeRed Sea Insurance Co. Ltd. v. Bouygues S.A. [1995] 1 A.C. 190) and the law having the most significant relationship with the occurrence and the parties is Dutch law, since the only connection with England is the domicile of the plaintiff and two of the defendants.If the defendants' appeal succeeds the appropriate course is a reference to the European Court of Justice under article 3 of the 1971 Protocol to the Convention .Christopher Floyd Q.C.,Richard HaconandHeather Lawrencefor the defendants. On the application to adduce evidence, the court should apply the law inLangdale v. Danbyand not Williams v. Attridge , since the full Court of Appeal is not bound by a previous interlocutory decision of a two-judge court: see Boys v. Chaplin . [Reference was also made toWeller v. Dunbar; Woodhouse v. Consolidated Property Corporation ; Khan v. Kensington and Chelsea Royal Borough Council andRudra v. Abbey National Plc. (1998) 76 P. & C.R. 537.] The court should not admit the further evidence because the plaintiff chose to defend the application to strike out on limited evidence and did not object to the affidavit in reply or seek an adjournment: see Canada Trust Co. v. Stolzenberg (No. 4), The Times, 14 May 1998 .The plaintiff's allegation against the defendants was fanciful and preposterous and was correctly struck out under the court's inherent jurisdiction: seeDavey v. Bentinck [1893] 1 Q.B. 185.The Convention is concerned solely with jurisdiction and not with what English law regards as actionable. The fact that jurisdiction is obligatory has no bearing on the question whether English law must recognise an infringement of Dutch copyright as an actionable wrong. The*409conflict of law rules do not directly affect the application of the Convention. The plaintiff must therefore say that the Convention's effectiveness is indirectly influenced by the rules. But that assertion confuses the plaintiff's right to bring an action anywhere provided for by the Convention and the permitted variation in laws of contracting states making it more attractive for a plaintiff to bring an action in the courts of one state rather than another: seeShevill v. Press Alliance S.A. (Case C-68/93) [1995] 2 A.C. 18. There are matters other than infringement of foreign intellectual property rights which English law treats as non justiciable: seeButtes Gas and Oil Co. v. Hammer [1982] A.C. 888. The fact that the law in England is such that an action under article 2 of the Convention would be worthless is of no account. The Convention does not influence the justiciability rules: see theMlnlycke case [1992] 1 W.L.R. 1112;L. A. Gear Inc. v. Gerald Whelan & Sons Ltd. [1991] F.S.R. 670; theTyburn case [1991] Ch. 75;James Burrough Distillers Plc. v. Speymalt Whisky Distributors Ltd. [1991] R.P.C. 130;Plastus Kreativ A.B. v. Minnesota Mining and Manufacturing Co. [1995] R.P.C. 438andMecklermedia Corporation v. D. C. Congress G.m.b.H. [1998] Ch. 40. The judge was therefore wrong to treat the justiciability rules as abrogated by the Convention. [Reference was made to theCoin Controls Ltd. case [1999] Ch. 33; theFort Dodge case [1998] F.S.R. 222and the Boston Scientific case, 18 November 1997 .]As the present case is a copyright case it comes within article 5(2) of the Berne Convention and the Brussels Convention of 1968 does not apply.Clarkreplied.Cur. adv. vult.21 January 1999. ROCH L.J.handed down the following judgment of the court. The plaintiff, Mr. Pearce, is an architect. In 1986 he completed his diploma in architecture at the Architectural Association School of Architecture in London. Between December 1985 and June 1986 he undertook an architectural project for his diploma in which he produced drawings, detailed plans and paintings of a design for a town hall for the Docklands Development in London. He claims, so far as is relevant to these proceedings, that he is the owner of United Kingdom and Dutch copyright in his Docklands plans.Between 1990 and 1993 the City of Rotterdam, the fourth defendants, had constructed in Rotterdam a public building known as the Kunsthal. The first defendants, Ove Arup Partnership Ltd., were appointed as civil engineer for the construction of the Kunsthal. The third defendants and their director Mr. Koolhaas, the second defendant, were the architects who designed the building. In the Autumn of 1992 Mr. Pearce visited Rotterdam as a tourist. He saw the Kunsthal in the course of construction and believed that features of its design had been copied from his Docklands plans. In these proceedings he claims that each of the defendants has infringed his United Kingdom or Dutch copyrights. It is accepted on his behalf that a damages claim for infringement of his United Kingdom copyright would be statute-barred, although the possibility of claiming an injunction is forensically retained. The main claim is for infringement of his Dutch copyright.*410The first defendants are domiciled in the United Kingdom. Mr. Koolhaas may be domiciled in the United Kingdom. The third and fourth defendants are domiciled in the Netherlands. Mr. Pearce claims that the English courts have jurisdiction in relation to his claims against those defendants not domiciled in the United Kingdom under article 6(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 . This provides that a person domiciled in a contracting state may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domiciled.The plaintiff's writ and statement of claim were issued on 25 September 1996. The statement of claim was amended on 30 October 1996. The second, third and fourth defendants served a defence dated 13 November 1996 and the first defendants filed a defence dated 29 November 1996. Each of them denied infringement of the plaintiff's copyright. There were requests for particulars of the amended statement of claim and the plaintiff eventually, on 31 January 1997, served amended particulars of similarity, giving particulars of the similarities which he alleged between his copyright works and the defendants' plans. Meanwhile on 16 December 1996 the second, third and fourth defendants had issued a notice of motion seeking to strike out those parts of the amended statement of claim which concerned alleged infringements of Dutch copyright on the ground that these were not acts which constitute torts actionable under English law. The notice of motion also invited the court to strike out the whole of the amended statement of claim under its inherent jurisdiction on the ground that the plaintiff's allegations were speculative. The notice of motion also applied to strike out those paragraphs of the amended statement of claim which alleged breach of United Kingdom copyright on the ground that these allegations were statute-barred. By summons dated 19 December 1996 the plaintiff applied to strike out allegations in each of the defences which asserted that infringement of Dutch copyright is not actionable as a tort under English law.These matters came before Lloyd J.[1997] Ch. 293on 12 February 1997. In his judgment given on 7 March 1997 the judge declined to strike out the allegations of infringement of Dutch copyright on the ground that they were not justiciable under English law. But he upheld the defendants' submission that on the facts alleged the plaintiff's claim was bound to fail. He held that the degree of similarity between the plaintiff's Docklands design and the Kunsthal drawings was not sufficient to give rise to an inference of copying. He considered that the claim was based on speculation. He accordingly ordered the whole claim against each of the defendants to be struck out.The plaintiff appeals, with leave granted on paper by Aldous L.J., against the judge's decision that on the facts which he alleged his claim was bound to fail and should be struck out. The second, third and fourth defendants by respondent's notices contend that the judge's order should be affirmed on the additional ground that the alleged infringements of Dutch copyright against them are not actionable torts under English law. This judgment deals with each of these contentions.*411Abuse of processThe plaintiff's pleaded case relies on two limbs. He alleges, first, that the second and third defendants had an opportunity to take copies of his Docklands plans and he asks the court to infer that they did so. Secondly, he alleges that there are remarkable similarities between his plans and the Kunsthal drawings. From a combination of these facts, he says that it should be inferred that the second and third defendants used graphic copies of his plans as a basis for their design. In striking out the plaintiff's claim on the basis that it was speculative, the judge in essence decided that the claim was bound to fail because no court would ever be persuaded to draw the necessary inferences.The plaintiff pleads that one of his tutors at the Architectural Association School of Architecture was Alexander Wall, who also worked for the third defendants in 1986. The plaintiff says that, for approximately six weeks in the autumn of 1986, he was employed in London by the third defendants at the invitation of Mr. Wall to complete the construction of a model. After he had been so employed for about a week, he was asked by Mr. Wall to take his Docklands plans to work so that Mr. Wall might show them to another employee of the third defendants. The plaintiff took his Docklands plans to the third defendants' London office. Mr. Wall asked him to leave them there over the weekend, and the plaintiff agreed to do so. He retrieved his plans from the third defendants' offices on the following Monday morning, noticing that the detailed plans had been physically detached from the paintings and drawings. He cannot prove directly that they had been copied, but he alleges that the second defendant or an employee of the third defendant not only had the opportunity to, but did in fact, copy his plans over that weekend.The second, third and fourth defendants plead that the third defendant is a Dutch company incorporated in 1988 to continue the work of a Dutch partnership called the Office for Metropolitan Architecture ("O.M.A.") based in Rotterdam. The second defendant was a partner in O.M.A., which had been founded in 1979, and is also a director of the third defendants. The second defendant was not a partner in a different firm, also called the Office of Metropolitan Architecture, founded in 1975 in London. The two firms were separate and carried on separate work. The London firm and O.M.A. were not the same legal person. Mr. Wall worked on a freelance basis for the London firm and the defendants understand that for a short period in 1986 the plaintiff did temporary freelance work for the London firm. The defendants plead that they do not know or admit whether the plaintiff took his Docklands plans to the premises of the London firm and they have no knowledge of what he alleges may have happened to them. They deny that the second defendant or an employee of the third defendant copied the plaintiff's plans. It is pleaded that the second defendant had never seen the plaintiff's Dockland plans before the beginning of this litigation and had never heard of them before the plaintiff began to make allegations which are said to be untrue. So far as is within his knowledge, these pleaded matters are verified in an affidavit of Mr. Koolhaas which was before the judge. In his judgment, the judge noted that there would be a dispute about the plaintiff's allegations*412that the second and third defendants had access to his drawings, but he assumed in the plaintiff's favour for the purposes of the matters before him that the plaintiff's allegations about access to the drawings was true. This was of course the correct approach, since striking-out applications normally proceed on the basis that pleaded allegations are capable of being established. The assumption must extend to one that the second or third defendants had a practical opportunity to have access to the plaintiff's plans whatever the precise relationship may have been between the English and the Dutch O.M.A.Since this part of the defendants' application was made under the courts' inherent jurisdiction, they were entitled (as they would not have been if the application had been only underR.S.C., Ord. 18, r. 19(1)(a)) to tender affidavit evidence. The application was supported by Ian Starr's first affidavit, which maintained that the plaintiff's allegations were based on pure speculation. At the time of his affidavit, the plaintiff had been asked to particularise the factual basis of his allegation of infringement. There had been correspondence between solicitors but no proper particulars had been supplied. Subsequently, the plaintiff did provide particulars and amended particulars of similarity which the defendants said needed further explanation. There was a meeting on 30 January 1997 at which the plaintiff gave explanations of his allegations of similarity to representatives of the defendants' solicitors. Copies of the plaintiff's Docklands plans and of the deposited Kunsthal plans were annotated by reference to the amended particulars of similarity to explain what was alleged.The only evidence before the judge on behalf of the plaintiff was an affidavit of his then solicitor. This verified parts of the plaintiff's pleaded narrative, but said nothing informative about the details of the plans. The defendants, however, having received the explanations given at the meeting on 30 January 1997, served a long affidavit of Mr. Koolhaas. This was served on the plaintiff's solicitors about five days before the hearing before the judge. It exhibited relevant parts of the plaintiff's drawings, JKM 5, JKM 6 and JKM 8 whose scale was 1:250 and a sketch JKM 9, and copies of the third defendants' Kunsthal drawings, V-02A, V-03A, V-04A and V-08A, whose scale was 1:200. The versions exhibited included those which had been annotated at the meeting on 30 January 1997. Mr. Koolhaas denied any allegation that he copied any of the plaintiff's drawings in any way. He said that any degree of similarity between the drawings was due to the school of architecture to which the designs belong. He said that when the defendants first saw the plaintiff's drawings in October 1996 they came to the conclusion that there were no similarities between the plaintiff's designs and the Kunsthal designs. Most of the plaintiff's particulars referred to single dimensions of different elements of design which were taken out of context and randomly compared with elements of the design of the Kunsthal. The plaintiff had explained at the meeting on 30 January 1997 that the allegations related, not to full scale measurements, but to exact copying of dimensions from his 1:250 scale drawings into the defendants 1:200 scale drawings, thus treating the drawings purely as graphics and disregarding the difference in scale. Mr. Koolhaas said that to an architect a single dimension was meaningless*413and that an architect would not just copy a different dimension used in a different element in a different position in another design and at a different scale. It was his understanding that the plaintiff had taken mostly single measurements on his plans and found, by a process of trial and error, comparable measurements often in unrelated parts of the Kunsthal and from unrelated features. Mr. Koolhaas produced and exhibited a relatively detailed initial response to the plaintiff's particulars. He denied that the design of the Kunsthal had square, rectangular or triangular elements which were the same as or comparable with equivalent elements in the plaintiff's Docklands drawings such as the plaintiff alleged. He gave detailed examples of two specific areas where the plaintiff alleged that dimensions were exactly the same but where, on Mr. Koolhaas's analysis and explanation, there was no sensible comparison.At the hearing before the judge, the plaintiff did not tender any evidence in answer to Mr. Koolhaas's affidavit, nor was there any application for an adjournment to enable him to do so. Submissions before the judge proceeded by reference to the amended particulars of similarity and by comparing the two sets of drawings exhibited to Mr. Koolhaas's affidavit.In his judgment, the judge gave detailed consideration to the allegations of similarity, and their rebuttal. He described the two buildings shown on the respective drawings in these terms:"The Kunsthal is a more or less square building, at the southern end of a park called Museumpark. It abuts, on the south, onto a dyke, the Westseedijk. More or less parallel with the dyke there is a service road which runs through the building. The public access to the building is from the north, from the Museumpark (hence Parklevel). The public gains access at a point about one third along the northern side from the west, and ascends a ramp of constant width as far as the middle of the building, where the ticket office and access to the principal areas within the building are to be found. The ramp continues as far as the southern end of the building, across the service road. At the lower level, -1, which is slightly lower than the level of the road, but in spaces at least partly open to a higher level, there are a large, more or less square exhibition space, on the eastern side of the building, and a caf/restaurant on the western side, rectangular in shape. Intruding into the space about the caf/restaurant, at a level above that of the ticket office, is a balcony which forms the beginning of an angled ramp, higher than the central access ramp, and parallel to it in cross-section, but at a different angle from it in plan, which comes out at the roof level and constitutes at least in part a roof garden. At the highest level (for which I have only the cross-sections, not any plans) the building seems to be continuous across the service road and thus joins the part of the building to the south of the service road. At a lower level the continuation of the access ramp provides a sort of bridge over the service road. On the west side of the building, about the caf/restaurant and its kitchen and bar, there is a further ramp rising to the north, and also of constant width, from the level of the service road at the south to about level + 1 at the northern end of*414the building (best seen in cross-section A-A on plan V-08Aexhibit RLK12but also seen in part on plan V-04Aexhibit RLK11). The second defendant explains in his affidavit that this is the auditorium. The plaintiff's Docklands town hall would have been a broadly rectangular construction, next to the river and separated from it by a promenade, but with a jetty for access by boat. At ground level it consists largely of supporting structures below the main structure at a higher level, which itself is surmounted by a large tower over part of it. The drawings I have for this are plans at ground level and main deck level, two cross-sections and an overall impression from the north. At the main deck level there is, to the east, a rectangular area which includes two magistrates' courts and associated areas. To the west of this is, to the north, the access to the building, starting at ground level, by way of an uncovered ramp widening as it rises to the main deck level to a point about half way into the building on the north-south axis. To the south of this is a conference chamber/cinema, also rising to the south and widening, and protruding somewhat beyond the rest of the south wall of the building. To judge from the cross-section, the roof of this area also rises noticeably beyond the general level of the roof at this level, and thus overall it presents a quite striking feature of the design. Immediately to the west of these rising and widening elements is an area, partly of offices and partly of public access. This area also has a rather striking feature, on the north side, in that the wall (mostly consisting of glass) is curved twice (horizontally) in a gentle sort of S shape. Neither this feature nor that mentioned above as regards the protrusion of the conference chamber/cinema is to be seen in the Kunsthal. The western part of the plaintiff's building at main deck level comprises various offices and an open courtyard, arranged in different shapes, sizes and dispositions, some of them being open plan. There appear to be two balconies off this area, one to the north and the other to the south."Paragraph 1 of the plaintiff's amended particulars of similarity was a general allegation:"The plaintiff's copyright works depict a building (a) comprising a pedestal and slab; and (b) located on the intersection of two axes, one being a ramp running into the building and the other a promenade running parallel to the river. The Kunsthal is also a building (a) comprising a pedestal and a slab; and (b) located on the intersection of two axes, one being a ramp running into the building and the other a service road."Mr. Koolhaas in his affidavit took issue with this, saying that the service road, which runs through the Kunsthal at a low level, is not so significant a feature as the relationship between the two opposed ramps, one running not just into but through the building, and the other rising in the opposite direction, being the auditorium. Of this the judge said that he could not himself see a similarity such as the plaintiff here alleged. He concluded that he could not accept that the overall concept of the two designs showed any sufficient similarity as to raise an inference of copying.*415Paragraphs 2 and 4 to 7 of the particulars of similarity allege that each building comprised three basic elements: a rectangular volume, a triangular volume and a square volume. It is said that the areas of each of these in plan is identical. (The pleading alone does not, so it now seems, accurately state the plaintiff's case. The essential case is not that the volumes or the areas are identical but that the graphic lines on the paper drawings are the same lengths and configurations, although at different scales.) The contention is that it is to be inferred that elements from the plaintiff's drawings were transferred mechanically or graphically to the defendants' drawings and that, although their precise interrelationship was altered, the same spacial elements were used and an essential conceptual interrelationship retained. The judge acknowledged that there was a rectangular element and a square element in each design, but pointed to differences in their relationship and to other features separating them on each of the plans. Of the triangular elements the judge said:"In the plaintiff's drawing these two elements are separated by a further rectangular element but this includes what on the plan is a prominent triangular element, consisting of two parts: the ramp from the narrow entrance, effectively the apex of the triangle, rising and widening as already described to the point at which one enters the building, and then, across a passage area, the further area described as 'conference chamber/cinema' which I have also described above. On the third defendant's plan the plaintiff has sought to describe a triangular element defined by points which are marked as P6 on exhibit RLK11. This is not a real element at all. Its north-western point is a genuine point: it is the starting point of the diagonal ramp which ascends through the upper floor of the building to the roof and provides a roof garden. The north-eastern point is merely a point level with this on the wall to the east, the left hand wall of the entrance ramp as one walks up it into the building and the apex point at the south is a notional point across the roadway which runs through the lower levels of the building. I do not accept that there is a triangular element in the third defendant's design comparable to, and capable of being regarded as resembling and copied from, the ramp and the cinema in the plaintiff's drawing. There are diagonal elements, but the attempt to make out a comparable triangular element in the Kunsthal is artificial."The judge considered in some detail two further allegations of similarity, concluding that they were wholly unconvincing and that it was impossible to see that any permissible inference could be drawn of copying from such coincidences. He then explained that counsel for the plaintiff had not pressed others of the 52 points relied on in the particulars of similarity. The judge said that some of them were preposterous and constituted absurd comparisons. They did not show a sufficient degree of similarity to give rise to an inference of copying. He concluded, at p. 309:"Taking the plaintiff's case as pleaded and particularised at its best, and in the light of the annotated drawings which are necessary to its understanding, but also in the light of the second defendant's*416comments in, and exhibited to, his affidavit, which have not been answered, I am satisfied that the claim is as much based on speculation and surmise as the claims that were struck out inUpjohn Co. v. T. Kerfoot & Co. Ltd. [1988] F.S.R. 1, A-Z Couriers Ltd. v. Comspec Computer Software Ltd. (unreported), 9 November 1988 and AM Computer Technology Ltd. v. 4-Sight Ltd. (unreported), 14 January 1992 . Just as in those cases, the claim is one which cannot succeed and ought therefore to be struck out as an abuse of process."The judge stressed on more than one occasion in his judgment that there was no evidence before him answering Mr. Koolhaas's detailed evidence.In this court, the plaintiff applied for leave to adduce additional evidence, which included: (a) his own second affidavit which, among other things, explained the details of his allegations of similarities in the plans; (b) a portfolio of 18 pairs of drawings, each pair consisting of a part of his own Docklands drawings overlaid with a transparency of what he alleged to be a comparable part of the Kunsthal drawings; and (c) an expert's report of Frederick Hill, among whose qualifications is that of Fellow of the Royal Institute of British Architects, expressing opinions about the drawings which are the subject of this dispute.The grounds upon which the application to adduce the additional evidence is made, as explained by Miss Clark on behalf of the plaintiff, include that the evidence relates directly to the issue of similarity; that Mr. Koolhaas's affidavit was served only shortly before the hearing before the judge and that the judge placed great reliance on it; and that the failure to seek to put evidence of this kind before the judge or to apply for an adjournment was not caused by any personal fault of the plaintiff, but rather by the fault of, or error of judgment by, his then solicitors or counsel. In his affidavit in support of the application, the plaintiff says that he had prepared 10 pages of handwritten notes in response to Mr. Koolhaas's evidence which he gave to his solicitor. He believed that he himself would be asked to give oral evidence but also that his solicitor would prepare any affidavit evidence that was needed. There was however no response to Mr. Koolhaas's evidence on his behalf. When his present solicitors received the papers from his former solicitors, only one of the 10 pages of notes was among them. We were also told that the plaintiff had brought his portfolio of drawings, which had been used at the meeting on 30 January 1997, to the hearing before the judge but that he was not asked to produce them and they were not referred to. Counsel on behalf of the defendantsMr. Floyd on behalf of the second, third and fourth defendants and Miss Lawrence on behalf of the first defendantssubmitted that the evidence should not be admitted.Ord. 59, r. 10(2)gives the Court of Appeal power to receive further evidence on questions of fact"but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of a trial or hearing) shall be admitted except on special grounds."*417For there to be "special grounds," the conditions referred to inLadd v. Marshall [1954] 1 W.L.R. 1489must be satisfied. The first of those conditions is that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Mr. Floyd submits, by reference to the decision of the House of Lords inLangdale v. Danby [1982] 1 W.L.R. 1123, that the hearing before Lloyd J., which resulted in the plaintiff's claim being struck out on the basis that on the facts it was bound to fail, was a hearing on the merits and that accordingly theLadd v. Marshallconditions are to be applied. Mr. Floyd submits that the plaintiff came nowhere near satisfying the firstLadd v. Marshallcondition. All the additional evidence could have been obtained with reasonable diligence. This was plainly so of the plaintiff's own evidence and his portfolio of drawings. Mr. Hill had been consulted in 1995, and was concerned at the time when the plaintiff's claim was formulated in September 1996. He either was or could have been available when the matter was heard by the judge. Mr. Floyd submitted that evidence and correspondence since the hearing before the judge, which included inquiries of the plaintiff's former solicitors (but surprisingly did not include inquiry of his former counsel), indicated either incompetence on the part of one or more of the lawyers or, more probably, a conscious decision by counsel in consultation with his solicitor not to seek leave to adduce additional evidence.Miss Clark on behalf of the plaintiff relies on the recent decision of this court in Williams v. Attridge (unreported), 8 July 1997; Court of Appeal (Civil Division) Transcript No. 1144 of 1997 . In that case the master had struck out the plaintiff's claim. The plaintiff's appeal came before Sir Peter Webster, sitting as a judge of the High Court. After an adjournment to enable the plaintiff to obtain further evidence, Sir Peter Webster dismissed the plaintiff's appeal. Upon appeal to this court, the plaintiff applied for leave to adduce additional evidence. It was common ground between the parties that, if the fresh evidence were not admitted, Sir Peter Webster's order must stand. Brooke L.J., giving the judgment of the court, referred toLangdale v. Danby [1982] 1 W.L.R. 1123, in which the House of Lords had held that summary judgment given under Order 14 (or Order 86) was a judgment after a hearing of a cause on the merits. On the other hand, inWeller v. Dunbar (unreported), 27 January 1984; Court of Appeal (Civil Division) Transcript No. 18 of 1994Stephenson and Dunn L.JJ. had accepted that, upon the hearing of an appeal by a plaintiff against an order setting aside a default judgment, the court was able to go wider than the tests inLadd v. Marshall [1954] 1 W.L.R. 1489in deciding whether to admit new evidence. Stephenson L.J. had said inWeller v. Dunbar, 27 January 1984 that counsel had properly conceded that in that case there had been no judgment on the merits. He concluded that the court must look at the whole position and consider whether, in the interests of justice, it was right or wrong to allow the evidence to be given. Brooke L.J. said of this that on the face of it there was no detectable difference in the context of Williams v. Attridge, 8 July 1997 between an interlocutory decision to set aside a default judgment and an interlocutory decision to strike out an action underOrd. 18, r. 19or under the inherent jurisdiction of the court. In neither case had there been a judgment on the merits. He then referred to the decision of Nourse L.J.,*418sitting as a single Lord Justice, in Khan v. Kensington and Chelsea Royal London Borough Council (unreported), 10 October 1990; Court of Appeal (Civil Division) Transcript No. 850 of 1990 , when he refused a plaintiff leave to appeal against a decision striking out part of his statement of claim. Nourse L.J. refused to consider additional evidence on the basis that it would not satisfy the principles ofLadd v. Marshall [1954] 1 W.L.R. 1489. There was however nothing to suggest that Nourse L.J. was referred to the precise wording ofOrd. 59, r. 10(2)or to the judgment of the court inWeller v. Dunbar, 27 January 1984. Brooke L.J. in Williams v. Attridge, 8 July 1997 concluded:"We are quite satisfied that Sir Peter Webster's order, though the judge considered the possible merits of the plaintiff's claim, was not 'a judgment after trial or hearing of any cause or matter on the merits' ..."Counsel for the plaintiff had told the court that the necessary evidence was not placed before Sir Peter Webster because of a misunderstanding on his part for which the plaintiff was not responsible. A detailed explanation of this was given, which the court accepted, saying:"and in the circumstances we consider that justice demands that we should admit the fresh evidence, which corrects the effect of the mistake ... and allow this appeal. It would be the reverse of justice if we permitted this striking-out order to stand in circumstances where a mistake had clearly been made through no fault of the plaintiff and where he has a properly arguable claim, disclosing a viable cause of action, which he wishes to bring."Miss Clark submits that the grounds upon which the plaintiff in the present appeal applies to be able to adduce fresh evidence are stronger than those in Williams v. Attridge, 8 July 1997 , from which in principle this appeal is indistinguishable. Mr. Floyd submits that Williams v. Attridge was wrongly decided in that this court ought to have held itself bound by the House of Lords decision ofLangdale v. Danby [1982] 1 W.L.R. 1123. If a hearing when the court gives summary judgment under Order 14 is a hearing on the merits, so too is a hearing when the court strikes out a plaintiff's claim upon the basis that factually it is bound to fail. We heard interesting submissions on the status before this court consisting of three Lords Justices of a decision of this court by two Lords Justices, and on whether, if it is considered that another division of this court had reached a decision which was inconsistent with a decision of the House of Lords, that was remediable in this court or only in the House of Lords.In our judgment, it is not necessary to reach a conclusion on these submissions in this case and we do not do so. We only observe that, whichever submission on the question before us may be correct, it seems unsatisfactory if the criteria for admitting fresh evidence in the Court of Appeal in matters such as this differ upon the same subject matter depending on the outcome in the court below. For summary judgment applications, this appears to be so: seeWoodhouse v. Consolidated Property Corporation Ltd. (1992) 66 P. & C.R. 234, 239, where Glidewell L.J. agreed with a passage in The Supreme Court Practice 1991, vol. 1 , pp. 94-95, para. 59/10/8*419suggesting that an order refusing summary judgment or granting conditional leave to defend is not an order made after a hearing on the merits and that therefore theLadd v. Marshall [1954] 1 W.L.R. 1489conditions do not apply. InRudra v. Abbey National Plc. (1998) 76 P. & C.R. 537this court held that theLadd v. Marshallconditions applied where a claim had been struck out after a ruling on a preliminary issue underR.S.C., Ord. 14A, this being closer to an application for summary judgment than to a strike out application. It appears that Robert Walker L.J. saw some logical difficulty in distinguishing between the situation inLangdale v. Danby [1982] 1 W.L.R. 1123and that in Williams v. Attridge, 8 July 1997 . It is, we think, quixotic if a party against whom a summary order has been made, bringing to an end his ability to deploy his case in court, has less opportunity to rely on further evidence in the Court of Appeal than the other party would have had if the summary order had not been made. In the first case, the appellant has lost his case; in the second case, he has not lost his case and retains the opportunity to rely on additional evidence at a later stage.We do not need to decide these matters in this appeal because, in our judgment, subject to one gloss, the plaintiff should not be permitted to adduce the additional evidence even upon the more liberal test propounded by Miss Clark. We are satisfied that the evidence was available, or could readily have been available, for the hearing before Lloyd J. If time was a problem, the plaintiff could have applied for an adjournment. We are also satisfied that the plaintiff's lawyers probably took a conscious decision not to seek to adduce additional evidence and not to apply for an adjournment. They probably reckoned that this part of the notice of motion could be resisted successfully without it. The general merits of the application to adduce fresh evidence are therefore poor since, generally speaking, parties have to live with tactical decisions which they, or their lawyers on their behalf, make. Our main reason, however, is that in our view the additional evidence is unnecessary. Our conclusion later in this judgment is that Lloyd J. was wrong to hold that the plaintiff's pleaded claim was so speculative that it was bound to fail. We reach this conclusion on the material which was before the judge. We accordingly dismiss the plaintiff's application to adduce further evidence.The gloss is that we consider that the plaintiff's portfolio of drawings is receivable, not as additional evidence, but as explanation of counsel's submission on behalf of the plaintiff for which leave is not needed. The portfolio illustrates 18 of the particulars of similarity. It is a useful visual aid to the court's understanding of the plaintiff's case and it was indeed so used, we are told, at the meeting on 30 January 1997. Mr. Floyd has three related objections to its use for this purpose. The first objection is that the drawings used to make the transparencies of parts of the Kunsthal drawings are not, as the plaintiff originally said they were, the V series drawings referred to in his particulars of similarity, but design plans of the defendants as they appeared in a French architectural magazine entitled "AMC Revue d'Architecture" in September 1989. The plaintiff admits that this is correct and that he made a mistake in his earlier affidavit. The second objection is that the transparencies have been prepared to show that the relevant comparisons are of identical dimensions, when some of*420the dimensions may be shown to be slightly different as between the two sets of drawings (and therefore significantly different on the ground). The third objection is that in making the transparencies the plaintiff has made some changes of detail to the defendants' plans to help his case. These are, in our view, legitimate objections (so far as they go) to the substance of the plaintiff's case, but not to the forensic use to which the portfolio may be put in this court. The portfolio is a clear and helpful forensic aid to the understanding of the plaintiff's case which has, we are sure, put this court at an advantage over Lloyd J., who had to struggle with the greater difficulty of comparing the annotated plans.It is not usually possible to allege copying other than as a deduction by inference from all the surrounding circumstances. In Copinger and Skone James on Copyright, 13th ed. (1991) , p. 168, para. 8-13 it is said:"The proper test, in all cases, probably involves four propositions: (1) in order to constitute reproduction within the meaning of the Act there must be (a) a sufficient degree of objective similarity between the two works, and (b) some causal connection ... (3) Where there is a substantial degree of objective similarity, this, of itself, will afford prima facia evidence to show that there is a causal connection between the plaintiff's and the defendant's work; at least it is a circumstance from which the inference may be drawn. (4) The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference of causal connection arising from the objective similarity, but is in no way conclusive. Thus if there is a sufficient similarity in the plaintiff's work and the defendant's, and the defendant has had an opportunity to copy the plaintiff's work directly or indirectly, this will establish a prima facia case of copying which the defendant has to answer."Each case will, of course, depend on its own circumstances. There will be cases, such as those referred to by Lloyd J. where a claim based upon access alone will be held to be speculative and bound to fail because the necessary inference could not be drawn from the facts pleaded. In the present case, the facts alleged by the plaintiff from which he invites the court to infer that copies of his plans were made by the third defendants or an associated organisation in London are on the face of it reasonably persuasivewe say no more than thiseven if Mr. Koolhaas's evidence is taken into account. The judge assumed these facts in the plaintiff's favour but may, we think, have given them too little weight.Miss Clark submitted that the judge should not have embarked upon a detailed inquiry into the alleged similarities between the two sets of plans at all. In our view, this submission goes too far. The defendants' essential contention was that a proper evaluation at the outset of the plaintiff's pleaded allegations with the aid of Mr. Koolhaas's evidence would show that the similarities were fanciful and that the claim was bound to fail. The judge had to consider these contentions. We consider, however, that, in doing so, he was persuaded to go further than was warranted on an application to strike out in the circumstances of this case. The jurisdiction to strike out an action as an abuse ought to be very sparingly exercised (see e.g. Lawrance v. Lord Norreys (1890) 15 App.Cas. 210 , 219), and*421should not be extended to become a trial of contentious matters on affidavit (seeWenlock v. Moloney [1965] 1 W.L.R. 1238). In the present case, for practical purposes, the judge tried a quite complicated technical case on incomplete affidavit evidence. Mr. Koolhaas's evidence was in its nature expert evidence, but was necessarily partisan. There was no independent expert evidence and none in support of the plaintiff's case. There did not need to be, if the pleadings and the material before the court raised a sufficient case for the defendants to have to answer. In such circumstances, the judge would not in our view have been correct to conclude, if he did, from Mr. Koolhaas's partisan evidence that expert evidence in support of the plaintiff's claim could never be available.The critical question remains whether the judge was right to conclude that the inferences necessary for the plaintiff's case to succeed could never be drawn. In our judgment, he was not. We have, as we say, had the advantage of the plaintiff's portfolio which we are sure explains his case forensically far more clearly than did the material before the judge.The essential case is that there are so many examples where dimensions and their shapes coincide on drawings of a different scale that the inference should be drawn that the defendants used a graphic copy of the plaintiff's plans as a starting point for their own plans. The allegation is not, as we understand it, limited to dimensions in plan only but to the conceptual juxtaposition of shapes and spaces. It is a positive part of the plaintiff's case for graphic copying that the two sets of drawings are at different scales. The portfolio seeks to show that both the Docklands Town Hall and the Kunsthal have the same superstructure in plan. Portfolio plans A seek to show that the square from the plaintiff's plans has been reproduced exactly for the square exhibition space in the Kunsthal. Portfolio plans B seek to demonstrate the same for the rectangle. Portfolio plans D seek to show that the overall square of the Kunsthal plan has been taken from the ground floor plan to the Docklands Town Hall both in length and width. Portfolio plans E to R seek to demonstrate that other dimensions or shapes in the Kunsthal design derive dimensionally from equivalent features in the plaintiff's Docklands plans.Portfolio plans C seek to show that a triangular element in the Kunsthal plans is congruent with a triangle in the plaintiff's Docklands plan. This was one of the elements which the judge considered in detail and found quite unpersuasive. The plaintiff's version of this triangle is shown on his drawing JKM 6 to be a narrow right-angled triangle. The long side running vertically up the plan is on the line of a structural wall which, for about half its length, is the side wall of a widening and rising ramp. The acute-angled apex of the triangle is at one side of the entrance to the ramp. Beyond the top of the ramp the wider part of the base of the triangle represents a conference chamber or cinema with rising tiers of seats. The short base of the triangle is a projection of the conference chamber behind the tiers of seats beyond the main line of the building at this level. The hypotenuse of the triangle is the line of the side of the conference chamber projected down the ramp. In the Kunsthal drawing V-04A, the triangle on which the plaintiff relies has been flipped over and moved substantially down the building, so that the acute-angled apex of*422the triangle is a notional point outside the relevant line of the structure. The hypotenuse of the triangle is on the line of a ramp coming up from below to a balcony and the short base of the triangle is on a line where this ramp arrives at the balcony. The ramp itself is not triangular but has parallel sides. The long vertical side of the triangle is a different part of the structure altogether. The fact however remains that each of these designs has a triangular spacial concept which, according to the plaintiff, when appropriate projections are made, constitute in plan graphically congruent triangles. Additionally, a main element of each of these triangles in plan is a plane rising through the building.A judge at trial may conclude that these and other similarities alleged by the plaintiff were coincidental. But we have all reached the clear conclusion, with the aid of the plaintiff's portfolio, that the plaintiff's allegations of similarity are not so fanciful that his claim as a whole should be regarded as speculative. The allegations are amenable, in our view, to opinion evidence. But we think that expert evidence may be admissible in this case, for instance, to explain the plans; to point out similarities and dissimilarities; to explain how architects proceed conceptually and how they produce their plans and drawings; and to explain generally what factors bear upon the shapes and dimensions of buildings such as these: see Deeks v. Wells [1933] 1 D.L.R. 353 andBauman v. Fussell [1978] R.P.C. 485, 489. The plaintiff has, we think, pleaded a case of similarity which, with his evidence about access to his drawings, might be sufficient for an inference of graphic copying. Needless to say, we say nothing about the eventual strength of the parties' respective cases. Our present decision is, and only is, that the defendants do not establish that the plaintiff's claim is in this respect bound to fail.In reaching this conclusion, we take fully into account all the matters urged upon us by Mr. Floyd on behalf of the defendants, many of which have considerable force. The elements relied on are not in precisely the same place in each of the sets of drawings. You have to move the transparencies around to demonstrate the dimensions and shapes which are said to coincide. The elements do not have the same functional use. Some of the comparisons are in quite different parts of the building. We are prepared to accept that some of the pleaded comparisons, taken alone, may merit the adjective "preposterous" given to them by the judge. The dimensions may not, upon detailed examination, be precisely the same. Some of the dimensions may require points to be taken which are not points which have any meaning on the drawings. The alleged similarity of the triangular elements is plainly amenable to criticism and so forth. Yet, for all this, we consider that there are sufficient basic coincidences of shapes, and a sufficient accumulation of other dimensional coincidence, such that this is a case which ought not to be struck out without full consideration of oral evidence, including expert opinion.We consider, therefore, the judge's decision that the plaintiff's claim was bound to fail on the facts was wrong and should be reversed.*423ActionabilityWe turn, therefore, to the defendants' contention, raised by notices served underR.S.C., Ord. 59, r. 6, that, nevertheless, the judge's order should be affirmed on the ground that the infringements of Dutch copyright alleged against the defendants are not actionable torts under English law.In addressing this contention it is necessary to keep in mind that the acts alleged to be infringements of the plaintiff's Dutch copyright were done in Holland. There is no suggestion that, if the acts had been done anywhere other than in Holland, they would have constituted an infringement of the plaintiff's Dutch copyright, or, to put the point another way, that the rights conferred by the plaintiff's Dutch copyright extend to acts done outside Holland. Further, those acts, because they took place in Holland, could not constitute infringements of the plaintiff's United Kingdom copyright. Those acts are not actionable under English domestic law.The relevant inquiry, therefore, is whether (assuming that the English court would otherwise have jurisdiction to hear proceedings against the relevant defendants) English law permits the English court, in the present context, to entertain a claim based on the infringement, by acts done in Holland, of a local right conferred in Holland by Dutch law. That is an inquiry which must be answered by reference to English private international law rules, in particular, by reference to those rules whichin the light of the provisions of theCivil Jurisdiction and Judgments Act 1982and the Conventions which, bysection 2(1)of that Act, have the force of law in the United Kingdomgovern the resolution of disputes in civil and commercial matters between persons domiciled in the states ("contracting states") which are parties to those Conventions.If the English court is permitted by English private international law rules to entertain a claim based on the infringement, by acts done in Holland, of a local right conferred in Holland by Dutch law, then it must follow as a necessary corollary that the same rules permit, or require, the English court to apply Dutch law in order to determine whether the claim is well founded. There is no other law which the English court could sensibly apply for that purpose. To put the point another way, if there is some English conflict of laws rule which prevents the English court from applying Dutch law to determine whether the claim is well founded, then that must be a powerful, if not conclusive, indication that the English court should not entertain the claim at all.Subject to an argument based on the provisions of article 5(2) of the Berne Convention of the International Union for the Protection of Literary and Artistic Works 1886 , as revised at Paris on 24 July 1971 (1990) (Cm. 1212) ("the Berne Convention"), the defendants accept, as they must, that the English court has jurisdiction to hear an action against a defendant who is domiciled in England in respect of the infringement in Holland of a Dutch copyright. That must follow from the provisions in articles 2 and 16(4) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 ("the Brussels Convention"). The relevant provisions are:*424"Article 2.Subject to the provisions of this Convention, persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state ...""Article 16.The following courts shall have exclusive jurisdiction, regardless of domicile ... 4. In proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the contracting state in which the deposit or registration has been applied for, has taken place or is under the terms of an international convention deemed to have taken place ..."It is not suggested that the present proceedings (being proceedings in respect of copyright in which no question of deposit or registration arises) fall within article 16(4) . It follows that the English court must accept jurisdiction in the proceedings against the first defendant (who is domiciled here) and, perhaps, also against the second defendant (who may be domiciled here): see paragraph 78 of the Schlosser Report on the accession in 1978 of the United Kingdom to the Brussels Convention (O.J. 1979 C. 59, p. 71). Further, article 6(1) provides: "A person domiciled in a contracting state may ... be sued1. Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled." It is accepted that the third and fourth defendantsand also the second defendant, if not domiciled hereare domiciled in Holland. It follows that the English court must accept jurisdiction against those defendants also.Nevertheless, it is submitted that jurisdiction is one thing; justiciability or actionability is another. It is not enough for the plaintiff to establish that he can bring proceedings against the defendants in the English court. Where the wrong of which he complains has been committed outside England, he must also establish that the English court, applying its own conflict of laws rules, will regard his complaint as giving rise to a cause of action that it will recognise and entertain.The judge accepted that, but for the Brussels Convention, an action in the English courts which was founded on an alleged breach of Dutch copyright must be struck out as non-justiciable on one or both of two grounds. First, because the rule inBritish South Africa Co. v. Companhia de Moambique [1893] A.C. 602required that a claim for breach of a foreign statutory intellectual property right must be regarded as local and so could not be entertained by an English court; and, secondly, because such a claim could not satisfy the double-actionability rule derived from Phillips v. Eyre (1870) L.R. 6 Q.B. 1 . But he was satisfied that to apply those rules in a case where the English court was given jurisdiction by articles 2 and 6 of the Brussels Convention would be inconsistent with, and would impair the effectiveness of, the Convention; with the consequence that the English conflict of laws rules must be regarded as overridden by the Convention in such a case and so inapplicable.Non-justiciability under the Moambique ruleOn its face the rule in theMoambique case [1893] A.C. 602does not provide self-evident support for the proposition that a claim for breach of*425a foreign statutory intellectual property right cannot be entertained by an English court. It is convenient to take the statement of the rule, as it stood before theCivil Jurisdiction and Judgments Act 1982, from the judgments of the House of Lords inHesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd. [1979] A.C. 508. Both Lord Wilberforce (with whom Lord Salmon and Lord Keith of Kinkel expressed agreement) and Lord Fraser of Tullybelton were content to adopt the formulation which appeared as rule 79 in Dicey & Morris, The Conflict of Laws, 9th ed. (1973) , p. 516 :"Subject to the exceptions hereinafter mentioned, the court has no jurisdiction to entertain an action for (1) the determination of the title to, or the right to possession of, any immovable situate out of England (foreign land); or (2) the recovery of damages for trespass to such immovable."The exceptions are not material in the present context. The second limb of the rule was abrogated bysection 30of the Act of 1982:"(1) The jurisdiction of any court in England and Wales or Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property. (2) Subsection (1) has effect subject to the 1968 Convention and the Lugano Convention and to the provisions set out in Schedule 4."Article 16(1) of the Brussels Convention gives exclusive jurisdiction, in proceedings which have as their object rights in rem in, or tenancies of, immovable property, to the courts of the contracting state in which the property is situated. The position as it now is, following the Act of 1982, is that (subject to the Convention) the English court has jurisdiction to entertain proceedings for trespass to land, wherever situate, unless the proceedings are principally concerned with a question of title or the right to possession: see rule 116 in Dicey & Morris, The Conflict of Laws, 12th ed. (1993) .Nevertheless, in order to evaluate the arguments put to us on behalf of the defendants, it is necessary to examine in some detail the grounds upon which the House of Lords held, in theMoambique case [1893] A.C. 602, that an English court had no jurisdiction to entertain an action for trespass to foreign land. The claims, as originally advanced in that case, were (i) for a declaration that the plaintiff company and others (respondents to the appeal) were lawfully in possession of certain lands, mines and mining rights in South Africa, (ii) for an injunction restraining the British South Africa Co. from continuing to trespass in respect of those lands, mines and mining rights and (iii) for damages for trespass. There was no dispute that, as the law stood before the procedural reforms introduced by the Supreme Court of Judicature Act 1873 (36 & 37 Vict. c. 66) , those claims could not have been advanced in an English court. The*426issue was whether that bar was substantive or procedural. As Lord Herschell L.C. explained[1893] A.C. 602, 617:"It is not in controversy that prior to the Judicature Acts no such jurisdiction could have been exercised; but it is asserted on behalf of the respondents that the only barrier to its exercise was the technical one, that the venue in such a case must be local, and that the rules made under the Judicature Acts which have abolished local venues have removed the sole impediment which prevented the courts entertaining and adjudicating on cases of this description."The majority of the Court of Appeal (Lord Esher M.R. dissenting)[1892] 2 Q.B. 358held that, the requirement that a "local" action must be tried at a local venue having been abolished by rules made under the Judicature Acts, the Supreme Court of Judicature had jurisdiction to entertain the action. But Lord Esher M.R., at pp. 395-396, in a dissenting judgment which was expressly approved by Lord Halsbury in the House of Lords and which was much relied upon by the High Court of Australia in Potter v. Broken Hill Pty. Co. Ltd. (1906) 3 C.L.R. 479 , defined the question in these terms:"With regard, then, to acts done within the territory of a nation, all are agreed that such nation has without more jurisdiction to determine the resulting rights growing out of those acts; but, with regard to acts done outside its territory it has no jurisdiction to determine the resulting rights growing out of those acts, unless such jurisdiction has been allowed to it by the comity of nations. This reduces the question under discussion to be, whether, in regard to an act of trespass done to land situated outside its territory, there is evidence to justify the inference that by the comity of nations the jurisdiction to determine the rights resulting from such an act has been allowed by other nations to this country, and has been accepted by this country. And the form of the inquiry shows, that the solution of that question does not depend upon the laws of procedure in litigation adopted by this country, but upon the comity of nations as between this country and other countries."After an extensive review of the principles set out in Story's Conflict of Laws, Lord Esher M.R., at p. 398, reached the conclusion that an action for trespassin the old form, an action quare clausum fregitcould not be entertained by an English court in respect of an alleged wrongful entry on land situated abroad:"and that the ground of the inability is, not that by the procedure regulating English litigation there can be no local venue given for the purpose of trial, but that no consent of other nations by way of comity to the exercise of such jurisdiction can be inferred, and that all countries, including England, have consented or agreed that such an action is a real or mixed action, as distinguished from a personal actionthat it is an action which regards the rights resulting from the ownership, by possession or otherwise, of the immovable property, the land, and, therefore, that any claim in respect of any alleged injury of*427any kind to those rights to land cannot be tried in any nation but that in which is the situs of the landi.e., in which the land is situated."On the appeal to the House of Lords the claims for a declaration and injunction were abandoned. Lord Herschell L.C.[1893] A.C. 602, 617 identified the principal question as "whether the Supreme Court of Judicature has jurisdiction to try an action to recover damages for trespass to lands situate in a foreign country." The House of Lords rejected the contention that the refusal of the English courts, prior to the Judicature Acts, to exercise jurisdiction in actions for trespass to lands situate abroad was based on the procedural requirementabolished byOrd. XXXVI, r. 1of the new rulesthat an action which was local in nature must be tried at a local venue. Lord Herschell L.C. said, at p. 629:"My Lords, I have come to the conclusion that the grounds upon which the courts have hitherto refused to exercise jurisdiction in actions of trespass to lands situate abroad were substantial and not technical, and that the rules of procedure under the Judicature Acts have not conferred a jurisdiction which did not exist before."The other members of the House agreed. The conclusion is clear enough: there were substantive grounds for refusing to entertain an action for trespass to foreign land. What is, perhaps, less clear is what the House of Lords thought those grounds were.TheMoambiquecase was reconsidered, some 85 years later, by the House of Lords inHesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd. [1979] A.C. 508. Lord Fraser, at p. 543, expressed the view (not expressly endorsed by the other four members of the House) that:"The decision [in theMoambiquecase] was based, as the speech of Lord Herschell L.C. clearly shows, on a historical distinction drawn in English law between local and transitory actions. Lord Herschell held that actions for trespass to land were local and that for that reason the English courts had no jurisdiction to try them if the land was outside England."InTyburn Productions Ltd. v. Conan Doyle [1991] Ch. 75, the only English case cited to us which provides direct support for the proposition that a claim for breach, outside England, of a foreign intellectual property right cannot be entertained by an English court, Vinelott J., at pp. 80-81, identified the central issue before him as:"whether the distinction between transitory and local actions, which was considered by the House of Lords inBritish South Africa Co. v. Companhia de Moambique [1893] A.C. 602, was fundamental to that decision ... or whether that distinction was, as it were, an historical prologue setting out the basis of the narrower rule that the English courts will not entertain proceedings raising questions as to the title to, or for damages for trespass to, land."It is necessary, therefore, to understand what the distinction between local and transitory actions was. Lord Herschell L.C., when tracing the historical antecedents of that distinction in theMoambique case [1893] A.C. 602,*428617-618, had pointed out that originally it was necessary to state the true place, or venue, of every fact in issuebecause each fact in issue would have to be determined by a jury drawn from the place where the fact was said to have arisen. Lord Herschell L.C. went on, at p. 618:"When juries ceased to be drawn from the particular town, parish, or hamlet where the fact took place, that is, from amongst those who were supposed to be cognisant of the circumstances, and came to be drawn from the body of the county generally, and to be bound to determine the issues judicially after hearing witnesses, the law began to discriminate between cases in which the truth of the venue was material and those in which it was not so. This gave rise to the distinction between transitory and local actions, that is, between those in which the facts relied on as the foundation of the plaintiff's case have no necessary connection with a particular locality and those in which there is such a connection. In the latter class of actions the plaintiff was bound to lay the venue truly; in the former he might lay it in any county he pleased."Lord Herschell L.C. pointed out the difficulty that arose where a fact occurred outside the realm, and described the fiction that was developed to overcome that difficulty where a fact which had occurred outside the realm arose in a transitory action. But he went on to say, at p. 619:"My Lords, I cannot but lay great stress upon the fact that whilst lawyers made an exception from the ordinary rule in the case of a local matter occurring outside the realm for which there was no proper place of trial in this country, and invented a fiction which enabled the courts to exercise jurisdiction, they did not make an exception where the cause of action was a local matter arising abroad, and did not extend the fiction to such cases. The rule that in local actions the venue must be local did not, where the cause of action arose in this country, touch the jurisdiction of the courts, but only determined the particular manner in which the jurisdiction should be exercised; but where the matter complained of was local and arose outside the realm, the refusal to adjudicate upon it was in fact a refusal to exercise jurisdiction, and I cannot think that the courts would have failed to find a remedy if they had regarded the matter as one within their jurisdiction, and which it was proper for them to adjudicate upon."Lord Herschell L.C. then traced the development of the law from Skinner v. East India Co. (1666) 6 St.Tr. 710 to Doulson v. Matthews (1792) 4 Durn. & E. 503 . He referred[1893] A.C. 602, 621, to a passage in the judgment of Buller J. in the latter case, at p. 504a passage which was later to be cited by three members of the House of Lords in theHesperides Hotels case [1979] A.C. 508, 534:"It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions: it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here*429which are in their nature transitory, though arising out of a transaction abroad, but not such as are in their nature local."Lord Herschell L.C. observed[1893] A.C. 602, 621:"In saying that we may not try actions here arising out of transactions abroad which are in their nature local, I do not think that the learned judge was referring to the mere technical difficulty of there being no venue in this country in which these transactions could be laid, but to the fact that our courts did not exercise jurisdiction in matters arising abroad 'which were in their nature local.' The case of Doulson v. Matthews, 4 Durn. & E. 503 has ever since been regarded as law, and I do not think it has been considered as founded merely on the technical difficulty that in this country a local venue was requisite in a local action."Lord Halsbury took the same view. He said, at p. 633:"in Doulson v. Matthews , Lord Kenyon and Buller J., in judgments which were supposed to have settled the law, held that as a matter of settled practice actions of trespass to land were local. In the opinions of the judges delivered to your Lordships' House by Willes J. it is stated, without any qualification, that an action of trespass to land abroad did not lie."It is plain that both Lord Herschell L.C. and Lord Halsbury were satisfied that there was ample authority in past decisions for the rule that the English court did not entertain an actionor, as Lord Herschell L.C. put it, did not exercise jurisdictionin a case where the cause of action depended on some matter, arising outside England, which was local in nature. But they did not leave the matter there. They each went on to consider the basis for that rule. Lord Herschell L.C. said, at pp. 622-623:"The distinction between matters which are transitory or personal and those which are local in their nature, and the refusal to exercise jurisdiction as regards the latter where they occur outside territorial limits, is not confined to the jurisprudence of this country. Story, in his work on the Conflict of Laws (section 551), after stating that by the Roman law a suit might in many cases be brought, either where property was situate or where the party sued had his domicile, proceeds to say that 'even in countries acknowledging the Roman law it has become a very general principle that suits in rem should be brought where the property is situate; and this principle is applied with almost universal approbation in regard to immovable property. The same rule is applied to mixed actions, and to all suits which touch the realty.'"He then referred, at p. 623, to passages at sections 553 and 554 in Story's Conflict of Laws, 8th ed. (1883) :"In section 553, Story quotes the following language of [Vattel's Law of Nations (1797)]: 'The defendant's judge' (that is, the competent judge) says he, 'is the judge of the place where the defendant has his settled abode, or the judge of the place where the defendant is when*430any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In such a case, as property of this kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends.' He adds, in the next section: 'It will be perceived that in many respects the doctrine here laid down coincides with that of the common law. It has already been stated that by the common law personal actions, being transitory, may be brought in any place where the party defendant can be found; that real actions must be brought in the forum rei sitae; and that mixed actions are properly referable to the same jurisdiction. Among the latter are actions for trespasses and injuries to real property which are deemed local; so that they will not lie elsewhere than in the place rei sitae.'"He observed:"The doctrine laid down by foreign jurists, which is said by Story to coincide in many respects with that of our common law, obviously had relation to the question of jurisdiction, and not to any technical rules determining in what part of a country a cause was to be tried."It is, we think, plain that Lord Herschell L.C. was concerned with the question of comity. He was concerned that the rules as to jurisdiction under English law should conform to generally accepted principles of private international law. He said, at p. 624:"The question what jurisdiction can be exercised by the courts of any country according to its municipal law cannot, I think, be conclusively det


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