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Published online by Cambridge University Press: 17 January 2008
In Harding v Wealands1 the House of Lords had to consider the vexed question of where the dividing line between substance and procedure should lie in private international law. The specific issue before their Lordships was whether matters relating to the assessment of damages in tort should be treated as matters of substance, and thus be for the applicable law, or whether they should be treated as matters of procedure, and therefore be left for the law of the forum. The decision of the House of Lords has resolved this difficult question in favour of a procedural characterization. The result of the House of Lords' decision is that in all such cases, regardless of the foreign law element, the assessment of damages will be conducted in accordance with English (Northern Irish or Scottish) law, as the law of the forum. Nonetheless, some reservations do exist as to the justification for the decision and as to how likely it is to remain the last word on the subject.
1 [2006] UKHL 32Google Scholar; [2006] 3 WLR 83.Google Scholar
2 Phillips v Eyre (1860) LR 6 QB 1Google Scholar; Boys v Chaplin [1971] AC 356Google Scholar; Coupland v Arabian Gulf Oil [1983] 1136Google Scholar; Red Sea Insurance v Bouygues [1995] 1 AC 190.Google Scholar
3 At least until the Privy Council decision in Red Sea Insurance v Bouygues [1995] 1 AC 190.Google Scholar
4 Section 12 provides:
‘(1) If it appears, in all the circumstances, from a comparison of—
(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort or delict with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.’
5 [2004] EWHC 1957 (QB).Google Scholar
6 [2001] 1WLR 1003. In Edmunds, the claimant and defendant were friends and were on holiday together in Spain when the claimant was injured by the defendant's negligent driving. Both were English, the claimant returned to be cared for in England and she would suffer her losses in England. Garland J held that these were overwhelming factors leading to the application of English law under s 12.Google Scholar
7 [2004] EWCA Civ 1735Google Scholar; [2005] 1 WLR 1539Google Scholar; [2005] 1 All ER 415.Google Scholar
8 Waller, Arden LJJ and Sir William Aldous.
9 [2002] 1 WLR 2304 (p 2310 F–G). In Roerig itself the accident took place on an English registered boat (therefore in England) and the tortfeasor was English. The deceased and his dependents were all Dutch and living in Holland. There were other factors connecting the tort to Holland, in that the deceased was under the supervision of a Dutch fishing master at the time of the accident and the fishing expedition was in every respect Dutch (embarking and disembarking in a Dutch port). These factors were insufficient to displace the general rule. Waller LJ said: ‘Where the Defendant is English and the tort took place in England it cannot surely be said that it is substantially more appropriate for damages to be assessed by Dutch law simply because the Claimant or the deceased is Dutch.’Google Scholar
10 Although in the light of House of Lords decision on the substance/procedure divide the importance of s 12 in the context of the assessment of damages in tort is much diminished.
11 Para 47.
12 Para 77 ff.
13 Para 50:
‘Certainly, the House of Lords in Boys v Chaplin proceeded on the basis that there was a distinction between “heads of damage” and the “assessment of damages”, and that the former were matters of substance whereas the latter was procedural. However, the House did not have to, and did not, define those terms. The application of a cap is not a head of damage in the sense of legal category of damages. Nor does it involve in any real sense an “assessment” of damages, since no evaluation of damages is involved: the application of a cap is a mechanical exercise. Moreover, the statutory question posed by the 1995 Act is: are the provisions of MACA questions of procedure or substance? In my judgment, the answer to that question has to be found by examining the nature of those concepts, relative to damages, rather than simply through the prism of heads and measurement of damages.’
14 Paras 86, 101, and 106:
‘[…] there are passages in the speeches in Boys v Chaplin to support the view that, as far as damages are concerned, it is a question of substantive law whether a head of damages was recoverable, but quantification of the actual head is procedural. But that does not answer the crucial question in this case namely whether the restrictions upon the amount of damages are procedural. No doubt such restrictions affect the amount of damages and are therefore part of the quantification, but they are not part of the rules governing or regulating the mode of conduct of the court when assessing the damages.’
15 Para 52:
‘How then is the distinction between substance and procedure to be ascertained in any particular case? In my judgment, the first step is to have regard to the context … In the context of section 14, a principled approach requires the court to start from the position that it has already decided that the proper law of the tort is not the law of the forum, ie that some other law applies to the tort, either because it is the lex loci delicti or because it is substantially more appropriate than the lex loci delicti. On this basis, a reference to the law of the forum must be the exception, and it must be justified by some imperative which, relative to the imperative of applying the proper law, has priority.’
16 Paras 103 and 105.
17 (1988) 169 CLR 41.Google Scholar
18 (1991) 174 CLR 1, 24.Google Scholar
19 (1993) 176 CLR 433.Google Scholar
20 (2000) 203 CLR 503.Google Scholar
21 ibid 543–4, para 99.
22 ibid 544, para 102.
23 Paras 57, 60, and 95. At para 60: ‘In my judgment, when, in the context of conflicts of laws, the court says that a particular issue is one of procedure rather than substance (and under section 14 it is a question for the court), the court is really saying that it cannot, for whatever reason, apply the relevant foreign law to that issue.’
24 [1992] 176 CLR 433.Google Scholar
25 Para 102.
26 Paras 86, 104, and 105.
27 Paras 69 and 105.
28 Lords Bingham, Woolf, Hoffmann, Rodger, and Carswell.
29 Para 36, Per Lord Hoffmann:
‘Of course, taken out of context, the word “procedure” is ambiguous. In its narrow and perhaps most usual sense it means, as La Forest J expressed it in Tolofson v Jensen [1994] 3 SCR 1022, 1072Google Scholar those rules which “make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties”. Or it can have a wider meaning which embraces what Mason, CJ in Stevens v Head (1993) 176 CLR 433, 445Google Scholar called “the traditional equation drawn between matters relating to a remedy and matters of procedure”. This is the sense it which the term has always been used in English private international law. If section 14 is read in its context, against the background of the existing rules of common law and the report of the Law Commission, there can be no doubt that the latter meaning was intended.’
30 (1835) 2 Bing NC 202.Google Scholar
31 (1837) 5 Claimant & Fin 1, HL (Sc).Google Scholar
32 Interestingly, both Huber v Steiner and Don v Lippmann are contract cases. There does not appear to have been any tort case which considered, prior to the double actionability rule, whether matters relating to the assessment or quantification of damages should be regarded as being determined by the law of the forum. This may have been because in tort the English Court always applied English law.
33 Para 24.
34 Para 51: ‘There can however be no doubt about the general rule, stated by Lord Mackay in the House of Lords debate, that “issues relating to the quantum or measure of damages” are governed by the lex fori. And this was the rule which Parliament intended to preserve. Even if there appeared to be more logic in the principle in Pfeiffer's case (and Dicey & Morris, 13th edn (2000), p 172, supports Arden LJ on this point) the question is not what the law should be but what Parliament thought it was in 1995.’Google Scholar
35 (2000) 203 CLR 503. With respect, this does not seem to be correct. Whilst the federal context was plainly a significant factor in the High Court of Australia deciding to adopt a choice of law rule based on the lex loci delicti for intra-national torts (pp 529–38), the reasoning in relation to the distinction between substance and procedure was not premised on any particularity of the Australian federal context (pp 542–4).Google Scholar
36 Hansard HL vol 562 col 1419, 1421–2 (27 03 1995).Google Scholar
37 [1993] AC 593.Google Scholar
38 14th edn (2006) at 7–040.
39 4 K&J 367; 2 De G & J 614.
40 Para 46.
41 An example from English law is that a claim for a bereavement award under Fatal Accidents Act 1976 is fixed at £10,000.
42 Such as heads of damage and foreseeability of damage.
43 Opeskin, B, ‘Statutory Caps in Australian Conflict of Laws’ (1993) 109 LQR 533, 537.Google Scholar
44 eg Australia (see above); Canada, where the Supreme Court have also taken a narrow view of the meaning of procedure—Tolofson v Jensen [1995] 120 DLR 289, 317–22 (per La Forest J)Google Scholar; United States, where the Restatement of the Law (Second) Conflict of Laws provides at §171 that ‘the law selected by application of [the choice of law rule] determines the measure of damages’ (the commentary makes clear that this includes caps); Germany, where the applicable law governs all matters relating to the assessment of damages—Munchener Kommentar Zum Burgerlichen Geseztbuch (2006) 2240–1, 2443 (Junker)Google Scholar; Palandt, Burgeliches Gesetzbuch (2006) 2604, 2608. The Convention on the Law Applicable to Traffic Accidents 1971 should also be considered. Although the United Kingdom is not a signatory, many European countries are and apply its jurisdictional rules in relation to road traffic accident claims. Under Article 3, ‘the applicable law is the internal law of the state where the accident occurred’; under Article 8, the applicable law determines liability, ‘the existence and kinds of injury or damage which may have to be compensated’ and the ‘kinds and extent of damages’.Google Scholar
45 Para 64: ‘In Part III Parliament did not enact a comprehensive scheme and a number of exceptions. It simply provided that the law chosen in accordance with sections 11 and 12 is to be used to determine certain issues, while the law of the forum is to continue to be used to determine others. …. This policy may be criticised as being liable to encourage forum shopping or on some other ground, but it is the policy of the legislature …’.
46 [2005] QB 801.Google Scholar
47 John Pfeiffer Pty Ltd v Rogerson [2000] 203 CLR 536 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).Google Scholar
48 [2001] 1 WLR 2386.Google Scholar