The Gazette 1987

GAZETTE

APRIL 1987

tend to frustrate them.

(Emphasis added)

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

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

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.

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."

(Emphasis added)

Wh a t is to replace t he rule in

Phillips -v- Eyre?

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

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

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.

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."

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:

(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-

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