#5175 - Metal And Rushtoff - Conflict of Laws BCL

Metal And Rushtoff v. Donaldson

Holding

Secondly, at a time when M. & R. instituted the present proceedings against D.L.J. and A.C.L.I. on 13 April 1987, the claim in respect of procurement of breach of contract was statute-barred under New York law and accordingly no longer actionable in that jurisdiction.

Limitation period in Double Actionability Cases

The Act of 1984 came into force on 1 October 1985. Section 1 provides:

(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter - (a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings; and (b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.

(2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account.

In including section 1(2) in the Act of 1984 the legislature clearly had in mind a rule of our private international law relating to double actionability, which stems from the decision in Phillips v. Eyre (1870) L.R. 6 Q.B. 1 and was slightly revised by a decision of the majority of the House of Lords in Boys v. Chaplin [1971] A.C. 356, to which we will refer in its revised form as "the rule in Boys v. Chaplin.

Boys v. Chaplin – requires “civil actionability” – overruling Machado v. Fontes

In Boys v. Chaplin [1971] A.C. 356 both Lord Hodson and Lord Wilberforce, at pp. 374C and 384E, referred to rule 158 as correctly representing the existing English law. However, some doubts had arisen as to whether the rule in Phillips v. Eyre, L.R. 6 Q.B. 1, contemplated the possibility of a successful action in respect of an act done in a foreign country which gave rise to criminal but not civil liability under the law of that country. The majority of the House of Lords in Boys v. Chaplin answered this question in the negative, holding in effect that, in the application of the rule, the phrase "civilly actionable" should be substituted for the phrase "not justifiable:" see per Lord Hodson, at p. 377B; per Lord Guest, at p. 381E and per Lord Wilberforce, at p. 389F.

Where was the tort committed? Question before applying Boys v. Chaplin

First, in deciding whether an alleged tort has been committed in this country or in some other country, our courts will look back over the series of events constituting it and ask themselves "Where in substance did this cause of action arise?" Secondly, in answering this question, the courts will apply exclusively English law.

In our judgment, in double locality cases our courts should first consider whether, by reference exclusively to English law, it can properly be said that a tort has been committed within the jurisdiction of our courts. In answering this question, they should apply the now well familiar "substance" test previously applied in such cases as Distillers Co. (Biochemicals) Ltd. v. Thompson [1971] A.C. 458, Castree v. E.R. Squibb & Sons Ltd. [1980] 1 W.L.R. 1248 and Cordoba Shipping Co. Ltd. v. National State Bank, Elizabeth, New Jersey [1984] 2 Lloyd's Rep. 91. If on the application of this test, they find that the tort was in substance committed in this country, they can thenceforth wholly disregard the rule in Boys v. Chaplin [1971] A.C. 356; the fact that some of the relevant events occurred abroad will thenceforth have no bearing on the defendant's liability in tort. On the other hand, if they find that the tort was in substance committed in some foreign country, they should apply the rule and impose liability in tort under English law, only if both (a) the relevant events would have given rise to liability in tort in English law if they had all taken place in England, and (b) the alleged tort would be actionable in the country where it was committed.

We appreciate that the application of the substance test may give rise to difficult problems on the facts of some cases, but double locality cases are bound to give rise to difficult problems and we see no reason to suppose that it would be likely to give rise to injustice or greater difficulty than any other test.

If in any given case the court concludes that under English law a tort has both been committed by the defendant and committed in this country, we see no reason either on principle or on authority why he should be entitled to claim exemption by reference to some foreign law, and we so decide.

Tort of inducing breach of contract – where was it committed?

Whether on the facts as pleaded and presented by M. & R., this tort was as a matter of substance committed on the one hand in England, or on the other hand in New...