The Gazette 1987

GAZETTE

APRIL 1987

In a case which raises more than one issue, it is possible for a court adopting this method to identify the individual tortious issues and consider the e f f ect of the application separately to each of any particular choice of law rule. The process of depecage may be illustrated by the f o l l owi ng hypothetical case which is adapted from the Joint Working Party's consultation paper. Two Irish residents, A and B, go on a motoring holiday in a foreign country where (i) there is strict liability for motor accidents, but (ii) the survival of causes of action in tort is not permitted. Under Irish law, by contrast, liability is for negligence and the Civil Liability Acts 1961 to 1964 make provision for the survival of actions. While in this foreign country B is killed in an accident caused, without negligence, by A who was driving. A would be liable under foreign law but not under Irish law, as he had not been negligent. If either Irish law or the foreign law applied to both issues in an action in Ireland by the personal representatives of B's estate against A, the action would not succeed. On the other hand, if the issues were split it would be possible^for example, to apply the foreign law to determine the issue of standard of liability and Irish law to determine the question of the survival of the cause of action in favour of B's estate. If this were done, the action of B's estate would succeed. It is not clear whether Walsh J. intended that a court should be free to split the issues in this manner when he spoke about the need for flexibility on the part of the Irish courts so as " . . . to be capable of responding to the individual issues presented in each case . . ." If this is what, in effect, he meant then Grehan's case may result in different tortious issues in the same case being governed by different systems of law, notwith- standing that the occurrence and the parties are identical. 27 It is interesting to note that the Joint Working Party did not favour the use of depecage in a statutory choice of law rule, being of the opinion, inter alia, that it would give rise to "practical difficulties, since the isolation of different issues in a single case requires that those issues be defined. While . . .

concerns the problem of classifi- cation of actions. In order to apply a particular choice of law rule in tort, a court must first be satisfied that the particular issue before it is one of tort. If the issue were classified not as an issue of tort, but as belonging to a different category then it would be some other choice of law rule and not the choice of law rule in tort which should select the appropriate law governing the issue. It will be necessary, therefore, in a com- prehensive review of Irish private international law to make proposals as to how each issue should be classified for choice of law pur- poses. Such a review would also have to consider whether or not a particular issue should be regarded as procedural or substantive. Any matter which is regarded as procedural only will, under current private international law rules, be governed by the lex fori to the exclusion of any foreign law. In addition such a review should consider two other questions in- cidentally arising from the Supreme Court judgment. The first question which the judgment appears to raise concerns the possibility of a departure from the rule, generally thought to prevail in this juris- diction, that notwithstanding the existence of a foreign element, a tort committed in Ireland will in an action in Ireland be governed by Irish law only. Walsh J.'s dictum concerning choice of law implications in O. 11 applications does not appear to be lirrrited to proceedings involving a tort com- mitted in Ireland only and may also apply to proceedings involving a tort committed within this juris- diction but with some foreign elements, and, possibly, to torts commi t t ed in some other jurisdiction w i th some Irish element. It may now be necessary, following service outside the jurisdiction under 0. 11, r. 1 (f), for the court trying the substantive issues to apply the relevant choice of law rule. Of course, it may be that such a rule would result in the application of Irish law either because it is the lex fori or the lex loci delicti or the "proper l aw" or for some other reason. The second question which possibly arises from the judgment concerns the process of what is known to continental lawyers as "depecage".

FULLY EXPERIENCED FREE-LANCE CLERKS WILL PROVIDE AN EFFICIENT, COST EFFECTIVE SERVICE TO THE LEGAL PROFESSION. RATES VERY COMPETITIVE. TOWN AGENCY WORK A SPECIALITY! Avoca House, 1 8 9 - 1 9 3 Parnell Street, Dublin 1. Telephone: (01) 734344 (10 lines) Telex: 33453 TCHR El the locus delicti, the parties and the occurrence lend themselves to objective identification, the same is less true of the issues, which may be capable of several different formulations". 28 Summa ry 1. At common law the courts exercised jurisdiction only where the defendant was served with the process within the jurisdiction. 2. Service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the courts in the cases specified in 0. 11 of the Rules of the Superior Courts 1986. 3. 0. 11, r.1 (f) provides that service out of the jurisdiction of the process may be allowed by the courts whenever an action is founded on a tort committed within the jurisdiction. 4. If it appears that any significant element in the com- mission of the tort occurs within the jurisdiction, then the plaintiff will have at least fulfilled the threshold requirements set out in 0. 11, r.1 (f). 5. The issue of whether or not a tort is committed within the juris- diction within the meaning of 0. 11, r. 1 (f) is not a mechanical one. The courts must have regard to the implications for the plaintiff or the defendant if the trial is to take place in the State. The task of the courts is to interpret and to apply 115