The Gazette 1987

GAZETTE

JULY/ A UGUST

1987

the rule in a way designed to ensure that justice and practical common sense prevail. The courts, therefore, should interpret the rule in the light of a broad policy and in the light of its choice of law implications. If more than one possible interpretation of the rule is available the one which serves to encourage the operation of sen- sible choice of law rules should be followed rather than one which would tend to frustrate them. 6. It is submitted that a broad policy requires the courts to inter- pret the requirements of O. 11, r. 1 (f) in a way that is favourable to the plaintiff once any significant ele- ment occurs in the jurisdiction. 7. The choice of law rule known as the rule in Phillips -v- Eyre does not form part of Irish law. 8. An Irish choice of law rule in tort has yet to be formulated. 9. According to Grehan's case, in applying any particular choice of law rule the courts should be suffi- ciently flexible to be capable of responding to the individual issues presented in each case and to the social and economic dimensions. 10. It is submitted that a reform- ed choice of law rule should be defined by statute and should possess a high degree of certainty; but it should be sufficiently refin- ed to be capable of selecting an ap- propriate system of law in as high a proportion of cases as possible. 11. The Joint Working party pro- visionally proposed t wo options for reform in the United Kingdom legal systems: (i) the application, subject to an exception, of the law of the country where the tort or delict oc- cured (lex loci delicti), and (ii) the proper law, subject to certain presumptions in' the case of (a) torts or delicts resulting in death, personal injury or damage to pro- perty, and (b) defamation. It is sub- mitted that the second of these options might be incorporated into Irish law. 12. Finally, it is submitted that this and other possible reforms in the private international law of tort should be examined by the Law Reform Commission. FOOTNOTES / am grateful to my colleague, Mark de B/ácam, Barrister-at-law, who made valuable suggestions for the improvement of this article.

1.

(1986) I.L.R.M. 627. See also A. V. Gill, "The Locus Delicti and choice of law in tort in Irish Private International Law" (1987) 1 I.L.T. 3. See Gerald Moloney and George Kremlis, "The Brussels Convention on Jurisdiction and the Enforcement of Judgments" (1985) 79 Incor- porated Law Society of Ireland Gazette 327. Where the defendant is not or is not known or believed to be a citizen of Ireland, notice of the Summons, and not the Summons must be served upon him: Ibid. O. 11, r.8. (1986) I.L.R.M. at pp. 6 2 9 - 3 0 , per Walsh J. See also Joynt -v- M'Crum (1899) 1 I.R. 217; Russell -v- Le Bert (1896) 1 I.R. 334 at 339. M'Crea -v- Knight (1896) 2 I.R. 619 at 625. See Shipsey -v- British and American Steam Navigation Company (1936) I.R. 65 per Fitzgibbon J. at 88. See Brennan - v- Lockyer and Others (1932) I.R. 100 at 101; Shipsey -v- British and American Steam Navigation Company, supra fn. 9 per Kennedy C. J. at 32; per Fitzgibbon J. at 83-4. It should be observed that until the adoption of the Rules of Court of 1926 service out of the jurisdiction could not be allowed when the cause of action was founded on tort. But the phrase "any injunction is sought" in O. 1 1, r. 1 (g) is limited to injunctions which are "properly and necessarily sought in the indorsement of claim contained in the originating summons" and does not extend to in- junctions sought by way of ancillary or interlocutory relief : Serge Caudron -v- Air Zaire (1986) I.L.R.M. 11 per Finlay C. J. at 20-3. Clare County Council -v- Wiison (1913) 2 I.R. 89. The same problem may arise under rule 1(g) which refers to nuisance. In Grehan's case, Walsh J. adverted to a number of Irish, cases dealing with malicious injuries: Fermanagh County Council-v- Farrendon (1923) I.R. 180 and Fermanagh County Council-v- The Board of Education of Donegal Presbytery (1923) 2 I.R. 184; M'Cullagh -v- The Irish Free State 57 I.L.T. & S.J. 171; Canning -v- Donegal County Council (1969) Ir. Jur. Rep. 7. He also referred to Wells -v- Secretary of State for Northern Ireland (1981) N.I.J.B. (in which the provisions of the Criminal Damage (Compensation) (Northern Ireland) Order 1977 were considered), Monaghan -v- Swan and Company (1962) 96 I.L.T. & S.J. 93 (which in- volved an issue as to which circuit constituted "the circuit wherein the tort was alleged to have been com- mitted") and O'Daly -v- Gulf Oil Ter- minals (Ireland) Ltd. (1 981) I.L.R.M. 163 (in which Barrington J. con- sidered whether the Irish courts should decline jurisdiction in favour of the French courts in the cases arising out of the 1979 Whiddy Oil terminal disaster). 0. 5, r. 1, R.S.C. 1986. Ibid. 0. 5, r. 14.

16. 17. 18. 19. 20.

(1986) I.L.R.M. at p. 638.

Ibid., at p. 637. (1944) K.B. 432. (1971) A.C. 356.

2.

Conflict of Laws (10th ed. 1980), pp. 942-5.

21. 22.

(1986) I.L.R.M., at p. 638.

See the Law Commission's Working Paper No. 87 and The Scottish Law Commission Consultative Memoran- dum No. 62 Private International Law Choice of Law in Tort and Delict.

3. 4.

Ibid. para. 4.18.

23. 24. 25. 26.

Ibid, paras. 4.24 - 4.140.

Ibid, paras. 4.130.

The First Programme of the Law Reform Commission stated that it was intended "as a long term project to prepare proposals for a statute codifying reforming and modernising the rules of conflict as they apply in the State". It was proposed in the in- terim period to examine with a view to making recommendations for law reform the rules of conflict, inter alia, in regard to "non-contractual obliga- tions. The Commission made pro- posals on many aspects of private international law in the sphere of family law. No proposals were published on the private international law of tort ("non-contractual obliga- tions"). The first task of the new Commission, which was recently ap- pointed, will be to prepare, in con- sultation with the Attorney General, a new programme for law reform for submission by the Taoiseach to the Government. The Government has in- dicated (see Press Release dated 27th November 1986) that a short programme containing a small number of important issues where the law is out of date is desirable". It is regrettable that the choice of law rules in tort are not included in the areas mentioned by it as being "the areas where it believes law reform to be desirable and which it believes would benefit from study by the Commission." Fn. 22 supra., paras. 6.73 - 6.81.

5. 6.

7.

8.

9.

10.

11.

12.

13.

14.

27. 28.

1 5.

Ibid. para. 6.79.

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