2.2.1. Double Actionability
The common law rule in respect of choice-of-law for torts is usually traced back to the well known judgment in the case of Phillips v Eyre.5 The rule is summed up in the familiar passage
from Willes’ J judgment:
“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England ... Secondly, the act must not have been justifiable by the law of the place where it was done.” 6
Accordingly there are two limbs to the rule, hence the title, double actionability. Firstly, the action must constitute a tort under the lex fori and secondly, it must be not be justifiable under
the lex loci delicti. The rule was subject to heavy criticism on the basis that it was unduly onerous
4 On the matter of insurance, there are a unique set of issues relating to claims which are brought directly against a third party
insurer. Chapter 5 is dedicated to consideration of this issue and therefore the matter will not be covered in detail here.
5 (1870) L.R. 6 QB 1. 6 Ibid 28-29.
17 for claimants, who had to prove a case under two systems of law,7 and because many felt it to be
parochial, since English law would apply regardless of whether or not there was any connection between the parties, the circumstances and England.8
The rule in Phillips v. Eyre was subject to detailed discussion in the later case of Boys v. Chaplin9
where it was both refined10 and developed. It was held that the rule should be subject to an
exception. Whilst the case provided refinement and clarity on a number of issues, it is the acceptance of an exception to the double actionability rule which is of most significance.
2.2.2. The Exception
Boys v Chaplin concerned a road traffic accident which occurred between two English residents
who were stationed in Malta on military postings. The first caused the second serious injury as a result of his negligent driving. Whilst there was no question that civil liability would arise under both English and Maltese law, there were significant differences in the amount of damages which would be paid.11 The decision of the court was clear; the applicable law was English law.
However, the means of the five Lords in reaching that conclusion were disparate and it has been recognised that it is not possible to extract a clear ratio decidendi from the case as a whole.12
7 See for example J. Blaikie ‘Choice of Law in Delict and Tort: Reform at Last’ (1997) Ed LR 361, at 362.
8 Lord Wilberforce in his judgment in Boys v. Chaplin, recognised that: ‘It may be admitted that it bears a parochial appearance: that it rests
on no secure doctrinal principle: that outside the world of the English speaking common law it is hardly to be found. But can any better general rule be devised, or is the existing rule, with perhaps some adjustment, the best suited to our system?’ Boys v. Chaplin (1971) A.C. 356, 387.
9 Ibid.
10 Initially there was also doubt as to the exact nature of the rule which it was possible to interpret as either a rule of jurisdiction
or of choice of law. This case confirmed that the rule was one relating to choice of law. Although the judgments in this case are not easy to rationalise but in the subsequent case of Red Sea Insurance Co Ltd v. Bouygnes S.A and Others [1995] 1 A.C.190 the opportunity was taken to make clear that the rule was indeed one of choice of law with the Privy Council stating:“It seems to their Lordships that all the members of the House of Lords in Chaplin v. Boys indorsed r. 158(1) of Dicey and Morris in the eighth edition as a starting point in the exercise, not of deciding whether English courts should have jurisdiction, but of deciding which law should be chosen to determine the relevant issue or issues.” The case also confirmed that the action complained of must have given rise to civil liability under the law of the place where it was done (Boys v. Chaplin (n8) 377, 389).
11 Maltese law did not allow recovery for pain and suffering.
12See the Law Commission Private International Law Choice of Law in Tort and Delict (Law Com W.P. No. 87, 1984) at p21. This was a
joint paper prepared on behalf of both the Law Commission for England and Wales as well as the Law Commission for Scotland. Since Elements of Scottish law are not under consideration no further reference is made to this fact. Also see P. North and P. Webb ‘Foreign Torts and English Courts’ (1970) ICLQ 24; A. Briggs ‘What Did Boys v. Chaplin Decide?’ (1983) Anglo-Am L. Rev. 237.
2. English Choice of Law Rules
18 Despite this, the following propositions may be made about the judgments:
i) A majority agreed that the rule in Phillips v Eyre applied and that this required double
actionability. (Lords Hodson,13 Wilberforce14 and Guest15)
ii) A differently constituted majority agreed that the double actionability rule required some flexibility in order that justice could be done in those cases where injustice would otherwise be carried out. (Lords Hodson,16 Wilberforce17 and Pearson18)
However, it is difficult is to discern the basis on which that exception is to apply.
Lord Hodson, initially expressed some reservations about using a US-inspired ‘proper law’ approach.19 However, he concluded that, in accordance with the American Law Institute,
Restatement (Second) Of Conflict of Laws (1969), controlling effect should be given to the law which
has the more significant relationship with the occurrence and the parties.20
Lord Wilberforce also favoured a US-style approach. But in contrast to Lord Hodson he appeared to make the type of enquiries made by a court undertaking interest analysis:21
“Given the general rule, as stated above, as one which will normally apply to foreign torts, I think that the necessary flexibility can be obtained from that principle which represents at least a common denominator of the United States decisions, namely, through segregation of the relevant issue and consideration whether, in relation to
13 See (n.8) 374-376. 14. Ibid, 384. 15 Ibid, 381 16 Ibid, 378. 17 Ibid, 391. 18 Ibid, 406.
19 Ibid. He stated at 378: “No doubt if the proper law of the tort were to be adopted as the solution of those cases which arise from transitory torts, it
is not easy to improve on the test chosen by the Master of the Rolls from the American Restatement, namely, the place with which the parties had the most significant connection. The [claimant] respondent did not seek to argue that the American theory of the proper law of the tort should be adopted but he submitted, and I think submitted rightly, that the words "As a general rule" should be interpreted so as to leave some latitude in cases where it would be against public policy to admit or to exclude claims. I am conscious that to resort to public policy is to mount an "unruly horse." It appears to me, however, to be in the interests of public policy to discourage "forum shopping" expeditions by the inhabitants of other countries.”
20 Ibid, 380.
21 Interest analysis requires the court to enquire into the policies of the potentially applicable laws in an attempt to decipher
which has the most interest in being applied. It is a very flexible approach to solving choice of law questions leaving a wide discretion to the forum court. The method was first propounded in the US by Brainerd Currie, see ‘Comments on Babcock v. Jackson, a recent development in conflict of laws’ 63 (1963) Col L. R. 1233. For a critique of interest analysis see F. K. Juenger ‘Conflict of Laws: A Critique of Interest Analysis’ 32 Am J Comp L (1984) 1.
19
that issue, the relevant foreign rule ought, as a matter of policy ... to be applied. For this purpose it is necessary to identify the policy of the rule, to inquire to what situations, with what contacts, it was intended to apply; whether not to apply it, in the circumstances of the instant case, would serve any interest which the rule was devised to meet.” 22
In applying this to the case, he held that the Maltese rule could not be disapplied on the grounds of public policy or for the sake of ‘justice’, but rather an assessment had to be made as to whether the respective states had any interest in the application of their own rule. It was ruled that Malta had no interest in having its rule applied as between two British subjects neither of whom were permanently based in Malta. Conversely, there was no reason why the English court should renounce its own rule.23
The judgments of this case are undoubtedly difficult. However, the significance attached to the case in the years that followed it was very much focused on the creation of an exception to the
Phillips v. Eyre ‘general rule’.24 The position that it would be where a particular law had the most
significant connection with the parties and the occurrences, was greatly strengthened in Red Sea Insurance.25 In this case, the Privy Council26 ruled that an exception, formulated in these exact
terms, also applied to the first limb of the double actionability rule.27 The lex fori could be
displaced where a third country had the most significant connection to the occurrences and the parties.
22 Ibid, 391-392.
23 Ibid, 390-392. Lord Pearson, in disagreement with a majority of the House had ruled that double actionability was not required
under the rule in Phillips v Eyre. He did however concede that, if he was wrong on this point, an exception would be required to ensure that the claimant succeeded. He gave no further reasoning on the basis or operation of such an exception.
24 It was felt that the decision had permitted the courts to diverge from the second limb of the double actionability rule, although
the differing bases for this conclusion left some lingering doubts about when and how it would be used. See for example P. North and P. Webb ‘Foreign Torts and English Courts’ (1970) ICLQ 24, at 34.
25 See n. 10 above.
26 While presiding as the highest appeal court for Hong Kong.
27 The rule that was endorsed was that formulated by the editors of the 12th ed of Dicey and Morris (1993) as rule 203.
Subsection 2 of the rule stated: “But a particular issue between the parties may be governed by the j) law of the country which, with respect to that issue, has the most significant relationship with the occurrence and theparties” (emphasis added). L. Collins et al (eds) Dicey and Morris on the Conflict of Laws (12th ed, Sweet and Maxwell, 1993).
2. English Choice of Law Rules
20 The case concerned claims against an insurance company, incorporated in Hong Kong, relating to construction being carried out in Saudi Arabia. When the works went awry, the plaintiffs sought to recover the cost of rectification from their insurer, Red Sea Insurance Co Ltd. Red Sea counterclaimed that the damage was caused by the negligence of some of the plaintiffs. Lord Slynn, delivering the judgment, considered that an exception to the general rule in Phillips v Eyre
had been created in Boys v Chaplin. In particular, Lord Slynn quoted Lord Wilberforce’s
statements regarding the existence of the exception with approval.28 He concluded by stating:
“...the policy of insurance was subject to Saudi Arabian law, the project was to be carried out in Saudi Arabia and the property was owned by the government. The main contract, the supply contract and the consortium's service contract are all subject to the law of Saudi Arabia and were to be performed there. The breaches and the alleged damage occurred in Saudi Arabia. The expense of repairing alleged damage occurred in Saudi Arabia. The defendant, though incorporated in Hong Kong, had its head office in Saudi Arabia. ...
[these factors] all point to the exception being applied in this case. The arguments in favour of the lex loci delicti are indeed overwhelming.” 29
The reasoning process of the court consists of a fairly mechanical weighing up of the connecting factors, which is indicative of a proper law approach.
It would be natural to question the significance of any of this, bearing in mind that the common law regime was abolished by Legislation in 1995. The 1995 Act does, however, contain an exception to the general rule or a rule of displacement which is framed in terms of the law of a country which is substantially more appropriate because of the factors which connect the tort to that country.30 The factors to be taken into account are those relating to the parties and those
28 (n10) at 200.
29 Ibid at 207.
21 relating to the events constituting the tort.31 This has definite echoes of the common law test of
most significant connection to the occurrences and the parties and a very similar, if not identical, weighing process as used in Red Sea has been used by the courts applying the statutory
exception.32