International Torts, Choice of law, double actionability rule, lex loci delicti commissi, Phillip v. Eyre, Watchter v. Harlley, red Sea Insurers v. Bouygues SA and Others etc

1. CONFLICTOF LAWS
CHOICEOF LAW
INTERNATIONAL TORTS
PATRICK A.N. ABOKU
10.05.2019

2. Outline
 Introduction
 The Rule in Philips v. Eyre (Double Actionability Rule)
 The Ghanaian Opportunity
 Proper Law of The Tort
 The American Approach
 Lex Loci Delicti

3. Introduction
 The choice of law process in the field of tort and delict has been said to
raise one of the most vexed questions in the conflict of law
 The applicable law in a tort or delict case is determined, under English
law
 according to the rule in Phillips v. Eyre, and under Scots law according
to the rule in McElroy v. McAllister
 The practical effect of these two rules is the same:
 the claimant must have a cause of action under both the lex fori and
 the law of the place where the tort or delict occurred.
 Furthermore, the wrongdoer will not be liable if he has a defence under
either of those two laws
 It follows that no action will lie in this country in respect of a class of tort or
delict unknown to our domestic law
 The basic rule is therefore favourable to the wrongdoer.
 To this general rule an exception was created by English law in Boys v.
Chaplin, which may mean that in a particular case a court could apply
 either English law alone,
 the law of the place where the tort or
 delict occurred alone or another law alone

4. TheRulein
Phillipsv.Eyre
 In Phillips v. Eyre(1870) the defendant was the governor of Jamaica. In the
cause of putting down a rebellion there, arrested and imprisoned the platiff.
 The action of the defendant could amount to amount to battery and false
imprisonment under Jamaican and English Law
 But the Jamaican Legislature passed a retrospective law making the actions of
the defendant lawful in Jamaica
 Thus, under Jamaican Law the defendant was not liable but under English law
he was lawful
 i.e. under law of the place where the tort occurred (the lex loci delicti
commissi) he was not liable but under the law of the place where he brought
the action (the lex fori) he was liable
 In his judgement,Willies formulated what later became known as the rule in
Phillips v.Eyre
 “As a general rule, in order to found (thus to establish or set up) 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…Secondlym the act must not have been
justifiable by the law of the place where it was done” – Willies J in Phillips v. Eyre

5. Double
Actionability
Rule
 Flowing from Willies J judgement in Phillips v. Eyre,
 an action for tort committed abroad will succeed only if the tort is both
 a) actionable by English internal law (lex fori) i.e. of such a character that it would
have been actionable if committed in England
 b) not Justifiable by the internal law of the place where it was done (lex loci delicti
commissi)
 This became known as the Double Actionability Rule
 One challenge of the double actionability
1. the present law was uncertain
 While the general double actionability rule is clear, the nature of the exception in Boys v.
Chaplin is not clear
 The exception is almost wholly undefined and the manner of its application in future
cases is a matter for speculation
2. the present law leads to injustice
 The law is to the advantage of the wrongdoer because the claimant cannot succeed in
any claim unless both the lex fori and the lex loci delicti make provision for it, whereas
the wrongdoer can escape liability by taking advantage of any defence available under
either of these laws – McElroy v McAllister(1949)
3. The present law could lead to forum shopping
 as in Mancho v. Fonte where the claimant in order to found his claim brought an action
against the defendant in England where the action was civilly actionable and not in
Brazil (lex loci delicti) where it was only criminality actionable

6. Forumshopping:
Double
Actionability Rule
 Should the action be criminal to qualify for double actionability?
 In the case of Machado v Fonte[1897], the court held that the action in
the lex delicti could be either civil or criminal
 Note that criminal liability does not afford the claimant to any
compensation or damages for crime is against the sate
 P sued D in England (lex fori) in respect of a libel published in Brazil (lex
delicti).
 The libel was not actionable in civil proceedings in Brazil but could be made
the subject of criminal proceedings.
 The Court of Appeal, on an interlocutory appeal, refused permission for D to
amend his pleadings so as to argue that the publication was not actionable in
Brazil.
 The result was that P could succeed because the libel was actionable in
England and was not justifiable in Brazil, even though P could not have
recovered damages in Brazil.
 However, Machado v. Fontes was over-ruled by a narrow majority in Boys v.
Chaplin.

7. Injustice under
Double
Actionability Rule
 The challenges of the double actionability rule was highlighted in the
case of McElroy v McAllister(1949) where an injustice was done
 The pursuer’s husband, a scott was killed in a motor accident in Westmorland
which was 40 miles south of the Scottish boarder. At the time of the accident,
the deceased was a passenger in the vehicle of his employers being driven
by his fellow Scott.The widow in her capacity as the executrix of her
husband’s estates instituted three claims against the driver in Scotland
 First relying on the rule in English law but not Scott law that, the deceased
cause of action survived to his executrix
 Second, she claimed compensation which she was entitled to under Scott law
but not under English law
 Third, she sued for funeral expenses
 Her first claim failed, because it was actionable under lex fori (Scotland)
 Her second claim also failed, because it was not actionable under the lex loci
delicti (England)
 The third claim succeeded because it was both actionable in England and
Scotland

8. TheException to
Double
Actionability Rule
 In the case of Boys v. Chaplin [1971] the court provided some amount of
flexibility in the Phillips v. Eyre rule
 In this case, while they were both stationed at HM Forces in Malta (lex delicti),
Chaplin negligently injured Boys in a road accident. In due course, Boys
brought an action against Chaplin in England (lex fori) for damages. If it were
to have been a question solely for English law the damages would have been
assessed at 2,303 UKP; Maltese law, on the other hand, would have fixed
them at 53.The difference is accounted for by the fact that under Maltese
law no financial compensation is ordered for pain and suffering, and only
special damages can be recovered.
 Thus, under the lex delicti, damages are limited to financial loss directly
suffered, to expenditure necessarily incurred and (which did not arise in the
present case) to wages actually lost and proved future loss of earnings. Q
 But no compensation can be awarded as it can under the lex fori for pain and
suffering as such
 The question for determination is whether compensation for pain and
suffering which are available under English law but not under maltase law
are claimable since it did not meet the double actionability rule
 The court allowed for the claim under English law (i.e. under the lex fori)
 The holding of this case has been criticized because the judges spoke with
different tongues, the case almost has no ratio at all but its import as an
exception to phillips v. Eyre

9. TheGhanaian
Opportunity:
Double
Actionability Rule
 In Ghana the double actionability rule was applied in the case of Watcter
v. Harlley [1968] even though not referred to
 The plaintiff instituted an action claiming damages from the defendant for
alleged slander of him in Switzerland.The defendant, who had been served
with the writ within the jurisdiction, applied for an order to dismiss the
plaintiff’s statement of claim disclosed no cause of action.
 It was held that to establish jurisdiction in a tort committed outside Ghana,
the tort complained of;
 a} must be actionable as a tort according to the law of Ghana and
 a} must be one that is not justifiable according to the law of the country where the
tort was alleged to have been committed
 Watchter adopted the double actionability rule but it appears that the court
approached it from a jurisdiction perspective instead of on substantive law
 RELEVANCE OF WATCHTER IN GHANA:
 The law in Ghana is that once the person could be served with a writ in Ghana, the
court would have jurisdiction
 Thus, the court decided on the case on the bases that what was at stake for
determination was a question of jurisdiction
 Accordingly, the case cannot be said to have authoritatively decided the
applicability of the rule in Ghana for torts committed abroad – Professor Richard
Oppong

10. Thepropositions
byProfessor JHC
Morris
 Proper Law of the Tort
 The lex loci delicti (place where the tort occurred) should normally be the
applicable law but that some other law might be more appropriate in other
cases lead to the suggestion that tort should be governed by proper law of
the tort
 Professor JHC Morris in an article published in the Havard Law Review
entitled “Proper Law of Tort” stated as follows
 The gist of this theory is that while in many perhaps, most situations there would
be no need to look beyond the place of the wrong, we ought to have a conflict
rule broad enough and flexible enough to take care of the exceptional
situations as well as the more normal ones. Otherwise, the result will begin to
offend our common sense. It was suggested that a proper law approach
intelligently applied would furnish a much need flexibility and enable different
issues to be suggested and thus facilitate a more adequate analysis of the social
factors involved
 He suggested the application of the law which on policy grounds had the most
significant connection with the chain of acts and consequences in particular
situations before us
 Note that Prof. Morris suggestions were applied in the American Case of
Babcock v. Jackson[1963]

11. ProperLawof
theTort
 Babcock v. Jackson[1963]
 The American Approach adopting Professor Morris’ suggestion
 A car registered and insured in NewYork had a driver and passengers domiciled
and resident in NewYork
 They drove across the boarder into Ontario in Canada and were involved in
accident in which the passengers got injured
 One of the passengers (Babcock) sued the driver in NewYork for compensation
 If the judge applied the lex loci delicti rule, the laws of Ontario would have
denied the passengers any compensation because they would have been treated
as gratuitous passengers who could not recover damages against the driver
 NewYork law (lex fori) had no such limitations and if applie, Babcock could
recover damagers from the defendant
 Per Fuld J
 Justice, fairness and the best practical result may best be achieved by given controlling
effect to the law of the jurisdiction which because of its relationship or contact with the
occurrence or the parties has the greatest concern with the specific issue raised in the
legitation
 He was advocating for the use of the legal system which has the closes connection to the
parties, the tort etc.
 In this case, the parties were domiciled and resident in New York, the car was registered
and insured in New York, the driver was domiciled and resident in New York and the
sued was in New York
 Thus New York law was applied

12. ProperLawof
theTort
Criticisms
 Criticisms of the proper law of the tort
 The proper law rule is criticized on the grounds that it appears as nothing
more than the application of the lex fori
 It introduces uncertainty because it requires the judges to weigh the
connecting factors and deciding with what legal system the facts have the
most significant connection which may differ from judge to judge

13. TheLexLoci
Delicti
CommissiRule
 Red Sea Insuracne Co v. Bouygues SA and Others[1995]
 An alleged tort was committed in foreign country specifically Saudi Arabia (lex
loci delicti)
 The insurer was incorporated in Hong Kong with head office in Saudi Arabia
 Insurer was sued in Hong Kong(lex fori) by contractors seeking to recover in
respect of building project in Saudi Arabia
 Insurer seeking to counterclaim on basis of alleged tort actionable in Saudi Arabia
but not actionable in Hong Kong
 Counterclaim was struck out by order of Hong Kong High Court –
 But the order was set aside by Court of Appeal of Hong Kong
 Order of Court of Appeal that insurer could not counterclaim in negligence
relying solely on law of Saudi Arabia as lex loci delicti
 The matter for determination was whether the insurer could rely purely on Saudi
Arabian law (lex loci delicti) to establish direct liability in tort when Hong Kong
law (lex fori) did not recognise such liability
 The Privy Council advised that the counter claim could stand and per Viscount
Slynn
 Exceptionally in an appropriate case, the plaintiff could rely exclusively on the lex loci
delicti even if under the lex fori his claim will not be actionable
 This case lays the principle that in exceptional cases, the requirement in the double
actionable rule that the claim must be actionable in the lex fori can be dispersed with
and replaced by the place where the wrong occurred (lex loci deliti)

14. LexlociDelicti
Rule
 There is currently a trend towards upholding the lex loci delicti commissi
rule as the choice of law rule in torts – per John Kiggundu
 Countries like Australia and Canada have abandoned the double
actionability rule
 The UK has also reformed its law on this issue by statute
 Ghana is still trailing
 Professor Oppong suggest Ghana to adopt the lex loci delicti rule
because
 It provides for certainty
 The challenge with this rule is where it is difficult in determining where
the tort occurred i.e. determining the lex loci delicti
 Professor Oppong suggests that in such cases, the courts should be pro-
plaintiff by using the legal system that would offer the plaintiff the most
effective remedy

15. Conclusion
 The trend
 Double Actionability Rule
 Proper Law of the Contract
 Lex Loci Delicti Commissi
 Use of Statute – UK’s Private International Law Act 1995

16. Reference
 See Generally:
 Richard Frimpong Oppong,“Private International Law”, Kluwer Law
International (2010)
 The Law Commission and the Scottish Law Commission,“Private
international law choice of law in tort and delict”,The House of
Common(1990)

17. Thank You
Discussion