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GAZETTE
APRIL 1987
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".
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 . . .
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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