#5104 - Red Sea Insurance V. Bouygeus - Conflict of Laws BCL

Red Sea Insurance v. Bouygeus

Facts

The defendant in this case is an insurance company incorporated in Hong Kong but having its head office in Jeddah, Saudi Arabia. The first to third plaintiffs, as parties to a joint venture, were employed by the Government of Saudi Arabia to carry out as main contractors construction work at the University of Riyadh.

The plaintiffs began proceedings against the defendant claiming, under the terms of an insurance policy issued by the defendant, to be indemnified for loss and expense incurred in repairing or replacing structural damage which occurred in the buildings constructed. The defendant denies that P.C.G. is covered by the contract of insurance and it contends, amongst other defences, that the costs incurred by the plaintiffs were not for the purpose of rectifying structural damage but were for work not covered by the policy such as the improvement or alteration of poor design, materials or workmanship shown up by the cracks which had appeared in parts of the building. The defendant counterclaimed against P.C.G. on the basis that P.C.G. had supplied faulty precast units in breach of its duty of reasonable care to the other plaintiffs, and that if the defendant was liable under the policy for the loss suffered by the other plaintiffs the defendant could recover the amount of such loss by way of subrogation to the other plaintiffs' rights.

P.C.G. applied to strike out the counterclaim as disclosing no reasonable cause of action on the basis that under Hong Kong law the defendant could not claim to be subrogated unless it had paid the plaintiffs other than P.C.G., which it had not done; the defendant's riposte was to apply for leave to amend in order to claim that the law governing the relations between P.C.G. and the other plaintiffs and the defendant's claim against P.C.G. was that of Saudi Arabia under which the defendant was entitled to sue P.C.G. directly for the damage caused to the other plaintiffs.

Question

The central issue arising on the appeal, thus, is whether the defendant can rely purely on Saudi Arabian law, the lex loci delicti, to establish direct liability in tort when Hong Kong law (the lex fori) does not recognise such liability.

Holding

Dicey, Rule 203: Based on Boys v. Chaplin

Rule 203 - (1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both (a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and (b) actionable according to the law of the foreign country where it was done. (2) But 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.

Element of Flexibility in Boys v. Chaplin

Their Lordships, having considered all of these opinions, recognise the conflict which exists between, on the one hand, the desirability of a rule which is certain and clear on the basis of which people can act and lawyers advise and, on the other, the desirability of the courts having the power to avoid injustice by introducing an element of flexibility into the rule. They do not consider that the rejection of the doctrine of the proper law of the tort as part of English law is inconsistent with a measure of flexibility being introduced into the rules. They consider that the majority in Boys v. Chaplin [1971] A.C. 356 recognised the need for such flexibility. They accept that the law of England recognises that a particular issue between the parties to litigation may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and with the parties. They agree with the statement of Lord Wilberforce, at pp. 391-392, which has been set out above as to the extent and application of the exception. They accept, as he did, that the exception will not be successfully invoked in every case or even, probably, in many cases and, at p. 391H, that 'The general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred.'

Can the exception in Boys v. Chaplin exclude lex fori?

In Boys v. Chaplin the application of the exception enabled the plaintiff to rely on the lex fori and to exclude the limited measure of damages imposed by the lex loci delicti. Can the exception be relied on to enable a plaintiff to rely on the lex loci delicti if his claim would not be actionable under the lex fori? There is obviously a difference between a court being able to apply its own law exclusively and it being required to apply exclusively another legal system. This, however, is not necessarily fatal to the contention that only the lex loci delicti be applied since the foreign law can be proved and it is clear that in appropriate cases the lex loci...