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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.
2.
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.
3.
0. 5, r. 1, R.S.C. 1986.
4.
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.
5.
Ibid.
0. 5, r. 14.
6.
(1986) I.L.R.M. at pp. 6 2 9 - 3 0 , per
Walsh J.
7.
See also
Joynt -v- M'Crum
(1899) 1
I.R. 217;
Russell -v- Le Bert
(1896)
1 I.R. 334 at 339.
8.
M'Crea -v- Knight
(1896) 2 I.R. 619
at 625.
9.
See
Shipsey -v- British and American
Steam Navigation Company
(1936)
I.R. 65
per
Fitzgibbon J. at 88.
10.
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.
11.
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.
12.
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.
13.
Clare County Council -v- Wiison
(1913) 2 I.R. 89.
14.
The same problem may arise under
rule 1(g) which refers to nuisance.
1 5.
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).
16.
(1986) I.L.R.M. at p. 638.
17.
Ibid.,
at p. 637.
18.
(1944) K.B. 432.
19.
(1971) A.C. 356.
20.
Conflict of Laws
(10th ed. 1980), pp.
942-5.
21.
(1986) I.L.R.M., at p. 638.
22.
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.
23.
Ibid.
para. 4.18.
24.
Ibid,
paras. 4.24 - 4.140.
25.
Ibid,
paras. 4.130.
26.
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."
27.
Fn. 22
supra.,
paras. 6.73 - 6.81.
28.
Ibid.
para. 6.79.
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