The Gazette 1987

APRIL 1987

GAZETTE

tend to frustrate them. 17 (Emphasis added)

parties, under the lex ioci delicti. The general rule is qualified by the so-called "Boys -v- Chaplin excep- tion". Although no clear ratio decidendi emerges from the case as a whole, it appears, however, to be agreed that Boys -v- Chaplin has qualified the general rule in Phillips -v- Eyre by permitting certain ex- ceptions to the invariable applica- tion of that general rule and thus introducing an element of flexibili- ty, albeit of uncertain scope. The Boys -v- Chaplin exception has been described in Dicey & Morris as follows: " A particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties. 20 " It is clear from Grehan's case that the rule in Phillips -v- Eyre (and, it would follow, the so-called Boys -v- Chaplin exception) does not form part of Irish law. Walsh J. said: "The rule in Phillips - v- Eyre has nothing to recommend it because it is capable of produc- ing quite arbitrary decisions and it is a mixture of parochialism and a vehicle for being, in some cases, unduly generous to the plaintiff and, in others, unduly harsh." " In my view, so far as choice of law in torts cases is concerned, the Irish Courts should be suf- ficiently flexible to be capable of r e s pond i ng t o t he in- dividual issues presented in each case and to t he social and economic dimensions of applying any particular choice of l aw rule in t he proceedings in question." 21 (Emphasis added) It is unfortunate that the flexible approach to choice of law issues suggested by the Supreme Court is not complemented by any re- statement of the basic choice of law rule. What is to replace the rule in Phillips -v- Eyre? What should be the object of such a rule? A new choice of law rule should, it is submitted, balance the need for certainty with the need to be sufficiently flexible to cater Wh a t is to replace t he rule in Phillips -v- Eyre?

adequately for the circumstances of particular cases. This question has been recently considered in the context of English and Scottish law by a Joint Working Party of the English and Scottish Law Commis- sions. 22 The Joint Working Party was of the opinion that: "While it is important that our reformed choice of law rule should possess a high degree of certainty, it is also important that it should be sufficiently refined to be capable of selec- ting an appropriate system of law in as high a proportion of cases as possible so that the courts are only rarely faced with the choice of either applying an inappropriate law or using a device to escape altogether from the choice of law rule in tort . . . Unfortunately, these t wo factors (certainty and refinement) tend to pull in op- posite directions, in that it is the simple rule which is more cer- tain, and the refined rule which is less so. The appropriate balance between certainty and refinement is, in our view, the major test which an acceptable choice of law rule in tort . . . must satisfy." 23 It is not surprising that the Joint Working Party concluded that the general rule in Phillips -v- Eyre itself is outdated and unnecessary in its heavy reliance on the lex fori and unjust in that the plaintiff is at a dis- advantage, since he must show he has a good cause of action under two systems of law and not just one; conversely, it said, the general rule is considerably to the advan- tage of the defendant, who may escape liability if he can raise any substantive defence that is available under either of the two systems of law. The Working Party also concluded that the un- certainty of the Boys -v- Chaplain exception is unsatisfactory. It examined eight options for reform and provisionally concluded that only two would be accep- table: 24 (i) that subject to certain excep- tions, the applicable law in actions in the United Kingdom on a foreign tort or delict should be that of the country where the tort or delict oc- curred. There would be presump- tions which would indicate the applicable law for the most com-

A broad policy No clear indication is given of what this policy should be but it would appear to follow from the judgment that the threshold requirements of O. 11, r. 1 (f) should be interpreted in a way that is favourable to the plaintiff so as to entitle him to serve out of the jurisdiction once any significant element occurs in the jurisdiction. Sensible choice of l aw rules It would appear from Walsh J.'s judgment that choice of law im- plications are a factor to be taken into account by the courts when deciding whether to order service out. Prior to Grehan' s case, it was generally understood that choice of law issues would arise only at the hearing in Ireland of the substan- tive issues in the case of a foreign tort. Following Grehan's case, it would now appear that a court, which is faced at the preliminary stage with an application for ser- vice outside the jurisdiction, must consider the choice of law impli- cations of its decision. Thus, it seems, the Irish court must, at this stage, determine what the appro- priate choice of law rule is. What is the Irish law with regard to choice of law in tort? To the writer's knowledge, questions in- volving choice of law rules in tort have not been considered in any reported Irish decisions. In the absence of any relevant Irish authority, it was probable, before Grehan's case, that an Irish court would have followed the English rules regarding choice of law. The present English and, indeed, Nor- thern Ireland law is based on two leading cases: Phillips -v- Eyre™ and Boys -v- Chaplin . 19 The rule in Phillips -v- Eyre means that (a) the rights and liabilities of the parties to an action in England or in Nor- thern Ireland on a foreign tort are determined by the lex fori, that is, the internal law of England or of Northern Ireland; (b) the application of English or Northern Ireland law is subject to the qualification that the plaintiff's action in England or in Northern Ireland will succeed only to the extent that civil liability also exists, as between the same

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