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Published online by Cambridge University Press: 17 January 2008
The distinction between substance1 and procedure2 is central to conflict of laws methodology. It cannot be determined what law governs a particular issue until, crucially, that issue has been characterized as substantive, on the one hand, or procedural,3 on the other. The distinction is the fulcrum, or axis, of the choice of law process.
1 Broadly, matters of right (Cook, WW “‘Substance’ and ‘Procedure’ in the Conflict of Laws” (1932–1993) 42 Yale LJ 333, at 334).CrossRefGoogle Scholar
2 Broadly, matters of remedy (Cook, op cit, at 334).Google Scholar
3 Or adjectival, or remedial.Google Scholar
4 Graveson, RHConflict of Laws Private International Law (7th ednLondonSweet & Maxwell 1974), at 590: ‘Whether or not any particular rule of the lex fori is one of substance or procedure accordingly becomes a question vital in many cases to the success of an action, and raises a question of classification in one of its clearest forms.’Google ScholarCf Dicey, & Morris, The Conflict of Laws (13th ednLondonSweet & Maxwell 2000) para 7–002: ‘The principle that procedure is governed by the lex fori is of general application and universally admitted.’ The matter is illuminated in Re Cohn [1945] 1 ch 5.Google Scholar
5 Cf Dicey, & Morris, op cit, para 7–003.Google Scholar
6 Crawford, EB ‘The Adjective and the Noun: Title and Right to Sue in International Private Law’ (2000) JR 347, at 349.Google ScholarDicey, & Morris, , Rule 17: ‘All matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs (lex fori).’ (para 7R–001) Eg Hamlyn & Cov Talisker Distillery (1894) 21 R (HL) 21, per Lord Herschell, at 24: ‘Stated generally, I should not dispute that proposition so far as it lays down that the parties cannot, in a case where the merits fall to be determined in the Scotch courts, insist, by virtue of an agreement, that these Courts shall depart from their ordinary course of procedure’; and per Lord Watson, at 26: ‘according to a well-known principle of general law, all questions touching the remedy must be decided according to the rules of the forum in which the remedy is sought…It has never, so far as I am aware, been seriously disputed that …any Court which has jurisdiction to entertain an action…must, in the exercise of that jurisdiction, be guided by what we termed the curial rules of the lex fori, such as those which relate to procedure or to proof.’ See also Don v Lippman 5 Cl. & Fin 1, and In re Fuld (No 3) [1968] P 675, per Scarman, J, at 695.Google Scholar
7 This essay does not revisit the first question of conflict method, viz ‘who characterizes?’ (see on this point, eg, Falconbridge, JD ‘Characterization in the Conflict of Laws’ (1937) 53 LQR 235;Google ScholarRobertson, AHCharacterization in the Conflict of Laws (CambridgeMA Harvard University Press 1940);Google Scholarand Wolff, MPrivate International Law (2nd ednOxfordClarendon Press 1950) ch XIII—where characterization by the lex causae is advocated. Observation suggests that, in practice, the forum characterizes in an ‘enlightened’ manner (eg ‘for the purposes of private international law’: cf s 9(2), Private International Law (Miscellaneous Provisions) Act 1995); and that the characterization between substance and procedure is parsfori in an English or Scottish court.Google Scholar
8 ‘The court before which any proceeding is instituted determines, according to its own law, whether any matter arising therefrom is one of substance or procedure. This is a question of defining the rule of law, and accordingly is always within the exclusive competence of the lex fori’ (Graveson, op cit, at 592). On occasion, characterization may be dictated in advance by legislation of the forum, eg, Foreign Limitation Periods Act 1984, and Prescription and Limitation (Scotland) Act 1984; even here there is forum domination, for the classification by the lex causae of its own prescriptive period is not to be regarded.Google Scholar
9 Dicey, & Morris, op cit Rule 17; n 6 above.Google Scholar
10 Para 7–004, and at para 7–039: ‘The primary purpose of classifying a rule as substantive or procedural is “to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of [the] parties.”’ Cf Graveson, op cit, at 593: ‘The traditional answer is the convenience and even the necessity of conforming to the machinery of the judicial system of any country in which the proceedings are undertaken.’Google Scholar
11 Anton, AE, with Beaumont, PRPrivate International Law (2nd ednEdinburghW Green 1990), at 742.Google ScholarSee also Erskine, An Institute of the Law of Scotland (The Edinburgh Printing and Publishing Co MDCCCXXXVIII) III.7.48;Google Scholarand McElroy v McAllister 1949 SC 110, per LJC. Thomson, at 117: ‘matters of “remedy’, being truly matters of procedure and not of substantive right, fall to be dealt with according to the law of the forum. There are sound reasons for this attitude. So far as remedy is concerned the reasons are practical, though the line between what is a matter of remedy, and what is substantive right may be difficult to draw. So far as actionability is concerned, it would be too much to expect the court of the forum to entertain an action for what is not a wrong by the law of the forum.’Google Scholar
12 Cf ‘circulus inextricabilis’ objections to characterization of the cause of action by the lex causae (Falconbridge op cit, at 537). Note, however, recent European harmonization initiatives in the field of procedure: Council Regulation (EC) No 1348/2000 of 29 May 2000 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters; Council Regulation (EC) No 1206/2001 of 28 May 2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial matters (OJ L 174, 27 June 2001); and Council Directive 2002/8/EC of 27 Jan 2003 to Improve Access to Justice in Cross-border Disputes by Establishing Minimum Common Rules relating to Legal Aid for such Disputes.Google Scholar
13 Williamson v Taylor (1845) 8 D. 156, per Lord Medwyn, at 163.Google ScholarCf Anton, op cit, at 743.Google Scholar
14 Wolff, op cit, at 230.Google Scholar
15 This matter is not often discussed, but the old case of De la Vega v Vianna (1830) 1 B & Add 284, at 288, provides some support in its upholding of the principle that foreign litigants in English courts should receive no better or worse treatment than the native born litigant.Google Scholar
16 1949 SC 110, at 139.Google Scholar
17 Emphasis added. The rules of jurisdiction have changed since 1949 (see now the Civil Jurisdiction and Judgments Acts 1982 and 1991, and Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (‘BIR’)), but the sentiment remains valid.Google Scholar
18 ‘“All matters of procedure are governed by the law of the forum.” This rule is never questioned, but there is wide disagreement as to what are matters of procedure’ (Cheatham, EE ‘Internal Law Distinctions in the Conflict of Laws’ (1935–1936) 21 Cornell LQ 570, at 577). Cf HF Goodrich ‘Conflict of Laws’ (1927) 157 (cited in Cook op cit, at 335): ‘Matters of remedy, or procedure, then, are determined by the law of the forum. The general statement is not disputed; the difficulty comes in determining on a concrete set of facts, into which class the case involved falls’;Google Scholarand Graveson, , op cit, at 590: ‘But the conventional English distinction between matters of substance and those of procedure, on the basis of substantive right and procedural remedy which English courts have generally followed, is inadequate and unsatisfactory when taken beyond the broadest generalization.’Google Scholar
19 In re Fuld (No 3), 1968 P 675, per Scarman J, at 695.Google Scholar
20 See n 6 above.Google Scholar
21 Dicey, & Morris, op cit, para 7–004.Google Scholar
22 Eg Chamberlayne, ‘The distinction between substantive and procedural law is artificial and illusory. In essence, there is none. The remedy and the predetermined machinery, so far as the litigant has a recognized claim to use it, are, legally speaking, part of the right itself. A right without a remedy for its violation is a command without a sanction, a brutum fulmen; ie, no law at all.’ (‘Evidence’ (1911) para 171, cited in Cook op cit, at 336).Google Scholar
23 Eg Pearson, Lord in Boys v Chaplin [1971] AC 356, at 395: ‘I do not think there is any exact and authoritative definition of the boundary between substantive law and procedural law (or adjectival or non-substantive law), and the boundary remains to be settled by further decisions, in particular cases.’Google Scholar
24 Eg, Anton, op cit, at 743: ‘However natural the justice of the principle, it is clear that the mechanical application of the procedural rules of the lex fori may entirely nullify rights acquired and still subsisting abroad or, conversely, entail that a right which could not be enforced in the system which gave birth to it may be enforced in Scotland. It is, perhaps, to be expected that justice in cases involving a conflict of laws is occasionally rough justice, but the grosser injustices may be avoided by a careful delimitation of what falls under the heads respectively of procedure and of substance.’Google Scholar
25 Eg, Walker, DMThe Law of Civil Remedies in Scotland (EdinburghW Green & Sons Ltd 1974), at 19: ‘In this context “procedure” seems to be used in a wide sense, covering not merely the rules of procedure in court, but actionability, title to sue and liability to defend, the competency of particular courts, evidence, procedure stricto sensu, practice and pleading, enforcement, representation, legal aid and expenses, and apparently covering also the remedies competent, conditions qualifying them, and the terms and measures of any remedy granted…If it means procedure in the narrow sense of the steps of litigation it is undoubtedly true, but wholly unhelpful because it does not deal with remedies…it is apparent that “procedure” may mean more than the prescribed series of formalities which have to be gone through to present a complaint to a court and obtain a judicial order, which is what is meant in its strict and narrow sense.’ See also Kendrick v Burnett (1897) 25 R 82 per Lord Kinnear, at 90: ‘The rule that whatever belongs to the remedy is to be determined by the lex fori…depends upon the distinction between questions as to the constitution of obligations and questions as to the mode in which they are to be enforced’; and Naftalin v LMS Railway 1933 SLT 193, per Lord Murray, at 200: ‘No doubt procedure is a term of somewhat indefinite connotation but in his [Mr Dicey's] opinion the true view is that any rule of law which affects, not the enforcement of a right, but the nature of the right itself, does not come under the head of procedure; or, in other words, is not governed by the lex fori.’Google Scholar
26 Poyser v Minors (1881) 7 QBD 329, per Lush LJ, at 333.Google ScholarSee Crawford, op cit, para 18.20. Graveson, though doubting whether procedure can usefully be defined in principle, held the view that, ‘[g]enerally [procedure] comprises the steps which any person must take in order to bring an action or other proceeding before a court.’ (op cit, at 591).Google Scholar
27 Cf Graveson, op cit, at 591: ‘But the nature of procedure can only be fully understood from a consideration of its contents in its broadest sense…’;Google ScholarWolff, op cit 228: ‘Many jurists have tried to evolve some general and simple formula which would enable the lawyer to recognize the character of a given rule. None of these attempts has succeeded’;Google Scholarand Walker, op cit 20 and at 35, ‘[t]he fact is that the general principle does not help at all…’.Google Scholar
28 Walker, op cit, at 35.Google Scholar
29 Eg, In Re Fuld (No 3) [1968] P 675 (treatment of burden of proof of testator's state of mind); and Re Cohn [1945] 1 Ch 5 (treatment of common calamity presumptions).Google Scholar
30 Cook, op cit, at 344. Emphasis added.Google Scholar
31 Ibid, at 344. Cook's analysis is helpful: ‘as we read […about] the “application” of the distinction to various situations, we find a veritable chaos of conflicting decisions, as well as a great diversity of opinion on the part of textbook writers…much of the difficulty arises from the failure on the part of both judges and text writers to state the problem accurately. Nearly every discussion seems to proceed on the tacit assumption that the supposed “line” between the two categories has some kind of objective existence, so to speak, and that the object is to find out… “on which side of the line a set of facts falls”. This way of stating the problem, if taken literally, seems…to start us off on the wrong scent, and so to divert our attention from the fact that we are thinking about the case precisely because there is no “line” already in “existence” which can be “discovered” by analysis alone.’ (Cook op cit, at 335) ‘our problem turns out to be not to discover the location of a pre-existing “line” but to decide where to draw a line’ (336).
32 ‘[A] person asking where the line ought to be drawn might well conclude that this ought to be at one place for one purpose and at a somewhat different place for another purpose’(Cook op cit, at 343).Google ScholarSee also Anton, op cit, at 743.Google Scholar
33 Consider the treatment of prescriptive and limitation periods in Scots and English conflict rules (n 8 above): at common law, rules of prescription and limitation were classified as substantive or procedural according to the manner in which the forum, for the purpose of the case in hand, perceived them. The position is now regulated, in Scotland, by section 4 of the Prescription and Limitation (Scotland) Act 1984 (inserting s 23A into the Prescription and Limitation (Scotland) Act 1973, according to which a Scottish forum must apply, subject only to public policy, the rules of prescription and limitation of the lex causae, not those of the lex fori). An equivalent rule operates in England by virtue of the Foreign Limitation Periods Act 1984.Google ScholarSee Crawford, op cit, paras 13.33, and 18.36–18.39.Google Scholar See also the conflicts treatment of the matter of onus of proof: Crawford, op cit, para 18.31, and n 23.Google Scholar
34 Cook, op cit, at 352 and 356.Google Scholar
35 [1971] AC 356, per Lord Hodson, at 379. Cf Lord Guest, at 381: ‘There would appear to be a distinction between questions affecting heads of damages which are for the lex loci delicti and quantification of damages which is for the lex fori’; and Lord Wilberforce, at 393. Contra Lord Donovan: all questions of damages in tort were matters for the lex fori: ‘it was right that [the English court] should award its own remedies’ (383); the ‘traditional rule’ per Graveson op cit, at 613.Google Scholar
36 Section 14(3)(b) states that nothing in the Act ‘affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum’. See also Edmunds v Simmonds [2001] WLR 1003, per Garland, J, at 1011, and Hulse v Chambers [2002] 1 All ER (Comm) 812, per Holland J, at para 6.Google Scholar
37 See eg Kohnke v Karger [1951] 2 KB 670, per Lynskey, J, at 677: ‘The principles on which damages are assessed differ in different countries, but in assessing damages, I must apply the law and practice of these courts.’ Also McElroy v McAllister op cit, per Lord Keith, at 133: ‘It is not expected of the lex fori to endeavour to equate its remedy to that of the lex loci. There may be differences in matters of assessment of damages, but there the lex fori rules.’Google ScholarCf Graveson, op cit 611/612;Google Scholarand Dicey, & Morris, op cit para 7–037: ‘The proposition that the quantification of damages is governed by the lex fori is illustrated by the fact that in an English court damages must be assessed once and for all except in cases where provisional damages are awarded in a personal injuries case [Supreme Court Act 1981, S.32A as inserted by Administration of Justice Act 1982, s 6]. An English court has no power to award periodical payments by way of damages, nor to increase an award of damages if the injuries become aggravated after a final judgment has been delivered. These rules would undoubtedly be applied even though different rules might exist in the lex causae.’ Compare and contrast French practice as revealed in Henderson v Jaouen [2002] 2 All ER 705, below at 705 et seq; it is submitted that any legal system's attitude to finality of award (as opposed to method of payment) reflects policy and tends toward substance. The classic distinction was clearly present in the approach at common law to the assessment of damages in contract: D'Almeida Araujo v Becker & Co Ltd [1953] 2 QB 329; but some dubiety attends the interpretation of Art 10(l)(c) of the Rome Convention on the Law Applicable to Contractual Obligations.Google ScholarSee Dicey, & Morris, op cit, paras 7'034, 32'198, and 32'199.Google Scholar
38 Crawford, op cit, at 350.Google ScholarAlso Graveson, op cit, at 613–14: ‘the existence of heads of damage is a matter of substance to be governed by the law applicable to tortious liability, while the amount of damages recoverable under various heads so determined is a matter of procedure to be governed by the lex fori’.Google Scholar
39 Lord Guest in Boys v Chaplin [1971] AC 356 acknowledged, at 381, that '[i]t may be difficult in certain cases to say on which side of the borderline any particular claim of damages should fall.’ Cf conflicts treatment of statutory caps on damages, now thought to be an issue of substance: see Morse, C G J ‘Torts in Private International Law’ (1996) 45 ICLQ 888.CrossRefGoogle Scholar
40 Cook, op cit, at 333.Google Scholar
41 Wolff, op cit, at 150: after noting that most countries’ conflict rules ‘make use of only a small number of general conceptions’, Wolff goes on to say that ‘[e]ach general conception has a firm and stable nucleus but an indistinct periphery.’Google Scholar
42 [2001] WLR 1003.Google Scholar
43 His Lordship considered that ‘[w]e are on still comparatively new ground on the 1995 Act. The sum of money at stake [probably in excess of £5,000,000] certainly warranted the attention of leading counsel’ (2000 WL 1629608, at 9).Google Scholar
44 Section 9(1) ‘The rules in this Part apply for choosing the law…to be used for determining issues relating to tort or…delict.’Google Scholar
45 [2001] 1 WLR 1003, at 1009.Google Scholar
46 Morse, op cit, at 895–6.Google Scholar
47 See s 14(3)(b).Google Scholar
48 Morse, op cit, at 895–6.Google Scholar
49 Law Com No 193 and Scot Law Com No 129, ‘Private International Law Choice of Law in Tort and Delict’ (1990) (‘1990 Report’), para 3–38.Google Scholar
50 1933 SLT 31, 193.Google Scholar
51 1949 SC 110.Google Scholar
52 1955 SC 20.Google Scholar
53 1976 SLT 2. Damages claimed included financial loss of profits by a company in which the pursuer (the victim of a shooting incident in the Bahamas) was President and Executive Director, and the costs of transporting the pursuer's relatives from Scotland to the Bahamas.Google Scholar
54 Walker, DMDelict (2nd ednEdinburghW Green & Sons Ltd 1981), at 65–6.Google Scholar
55 Philips v Eyre (1870) LR 6 QB 1, per Willes J, at 28: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England…Secondly, the act must not have been justifiable by the place where it was done.’ The double rule is famously overlaid by the flexible exception first articulated in Boys v Chaplin [1971] AC 356 (to the effect that, in special circumstances, the rule may be departed from, allowing a particular issue to 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), and honed in, inter alia, Johnson v Coventry Churchill International Ltd [1992] 3 All ER 14 and Red Sea Insurance Co v Bouygues [1995] 1 AC 190.Google Scholar
56 Eg McElroy v McAllister op cit; Naftalin op cit, per Lord Anderson, at 199: ‘a claim for solatium is a substantive right and not merely an element in an estimate of damage…’; Mackinnon op cit, per Lord Russell, at 34: ‘It is well settled…that the right to claim solatium is by Scots law a matter of substantive right, distinct and separate from the right to claim in respect of patrimonial loss…’; and Mitchell, op cit, per Lord McDonald, at 5: ‘a head of damage, not recognised by the lex fori, is not recoverable notwithstanding that it is recognised by the lex loci delicti.’Google Scholar
57 Red Sea Insurance Company Limited v Bouygues SA [1995] 1 AC 190. See n 55 above.Google Scholar
58 The head-note in the report narrates that ‘even if quantification of damages was to be regarded as falling within “the issues arising in the case’ in section 12(l)(b), it was substantially more appropriate that damages should be assessed according to English law.’Google Scholar
59 Page 1011 (emphasis added).Google Scholar
60 Page 1011. Cf Hulse v Chambers [2002] 1 All ER (Comm) 812, per Holland J, at para 6.Google Scholar
61 [2002] 1 Lloyd's Rep 681. See commentary by Weir, R at [2002] 17 All England Legal Opinion 7.Google Scholar
62 Paras 3 and 4.Google Scholar
63 Weir, op cit, at 7.Google Scholar
64 The report does not reveal the exact location of the trawler, but it is understood that at the time of the accident it was situated in international waters off the coast of Mauritania (Weir op cit, at 7).Google Scholar
65 Para 13.Google Scholar
66 The Court of Appeal expressly noted that ‘the Courts have struggled to define the line between procedural and substantive’ (para 23). Cf Boys v Chaplin [1971] AC 356, per Lord Pearson, at 505.Google Scholar
67 Cf Fyffe v Ferguson (1841) 2 Rob 267; Kendrick v Burnett (1897) 25 R 82; and Boys v Chaplin [1971] AC 356.Google Scholar
68 Para 25.Google Scholar
69 Para 12(v).Google Scholar
70 Para 12(iv).Google Scholar
71 Para 26.Google Scholar
72 Though not expressly stated, this surely is implicit in s 14(3)(a)(i) of the Act (ie, it is our public policy to which our courts must have regard in deciding whether to exclude the operation of a foreign law).Google Scholar
73 [2001] 1 WLR 2386; [2002] 1 All ER (Comm) 812.Google Scholar
74 The parties were agreed that ‘an English court’ (meaning, more accurately, a court applying English law) could reasonably be expected to award £125,000, whereas ‘a Greek court’ (meaning, likewise, a court applying Greek law) would award a sum somewhere between £56,000 and £94,000 (para 5).Google Scholar
75 Para 6, per Holland J. Cf generally Phrantzes v Argenti [1960] 2 QB 19.Google Scholar
76 Para 7.Google Scholar
77 Para 7 (emphasis added). Cf Robertson, op cit, at 267, ‘[m]easure of damages is another question which falls near the border line of substance and procedure’; and Dicey & Morris, para 7–039: ‘The primary purpose of classifying a rule as substantive or procedural is “to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of [the] parties.” From this perspective provisions or rules dealing with the measure of damages should not be seen as procedural in nature’ (emphasis added). The ‘smooth running’/convenience explanation would not extend to, or justify, referring measure of damages to the lex fori.Google Scholar
78 Para 7.Google Scholar
79 Note, with interest, the remarks of Lord President Robertson in Kendrick v Burnett (1897) 25 R 82, at 87: ‘No authority was cited to us shewing that there is any rule that the measure of damages is to be determined by the lex fori. In many instances, and especially in details, it must be practically impossible to apply any other rule, and the avowal of this is less a conclusion of international law than the expression of practical necessity. But, as a matter of doctrine, I do not think it can be asserted as a principle that the measure of damages is for the lex fori.’Google Scholar
80 Para 9.Google Scholar
81 See Rosenberg, M ‘The Comeback of Choice-of-Law Rules’ (1981) 81 Col L R 946.CrossRefGoogle Scholar
82 Consider the difficulties encountered in Shahnaz v Rizwan [1965] 1 QB 390, and Phrantzes v Argenti [1960] 2 QB 19. In the latter case, at 35–6, Lord Parker CJ advised that ‘the remedies available must harmonise with the right according to its nature and extent or fixed by the foreign law…Put another way, if the machinery by way of remedies here is so different from that in Greece as to make the right sought to be enforced a different right, that right would not, in my judgment, be enforced in this country.’Google Scholar
83 Cf Leslie, R ‘The Relevance of Public Policy in Legal Issues Involving Other Countries and Their Laws’ 1995 JR 477, at 479.Google Scholar
84 Holland, J observed at para 4 that the facts were ‘markedly similar’ to those in Edmunds v Simmonds, and Hamill v Hamill, unreported, 24 July 2000, in both of which there was a ruling in favour of English law. His Lordship emphasized that ‘before me in the instant cases there has been no issue but that Greek law is the applicable law, its status as such flowing from section 11’.Google Scholar
85 [2002] 2 All ER 705. ‘Each year brings new problems of Form and Content, new foes to tug with…’ (WH Auden (1907–73), Shorts I (1969)).Google Scholar
86 Para 7.Google Scholar
87 Para 16. As an exception to the norm of ‘once and for all’ lump sum damages, there is scope, under English and Scots law, for an award of provisional damages to be made in respect of personal injuries where there is a risk that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease, or suffer some serious deterioration in his physical or mental condition: sections 6 (England; see also s 32A, Supreme Court Act 1981) and 12 (Scotland) of the Administration of Justice Act 1982.Google Scholar
88 In December 1995 Mr Henderson claimed aggravation in the French tribunal. A provisional award of damages was made in the sum of 4,000 FF; ironically, this was less than the fee payable by the claimant towards the expert medical assessment of his deterioration. Wall J explained that one of the reasons the claimant had been advised to bring proceedings in England was that he was likely to receive there a higher award of damages.Google Scholar
89 ‘A person domiciled in a Contracting State may, in another Contracting State, be sued: in matters relating to tort, delict, or quasi-delict, in the courts for the place where the harmful event occurred…’. See now Art 5(3), Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.Google Scholar
90 The Senior Master of the Queen's Bench Division.Google Scholar
91 Para 31. Interestingly, there was no adjournment of proceedings pending a reference to the European Court of Justice on the applicability and interpretation of Art 5(3).Google Scholar
92 Para 19.Google Scholar
93 Paras 15 and 21.Google Scholar
94 Para 44.Google Scholar
95 Cf Lappin v Britannia Airways Ltd 1989 SLT 181.Google Scholar
96 Cf Kohnke v Karger [1951] 2 KB 670, per Lynskey J, at 676.Google Scholar
97 Pryde v Proctor and Gamble Ltd 1971 SLT (Notes) 18; Bonnor v Balfour Kilpatrick Ltd 1975 SLT (Notes) 3; and Rodden v Whatlings 1961 SC 132. See generally Crawford op cit, paras 4.11 and 4.12.Google Scholar
98 Cf Kohnke v Karger op cit; also Edmunds v Simmonds, above, where the victim's residence in England and need for long-term care in England were powerful, persuasive factors in support of displacement under s 12.Google Scholar
99 In other words, the locus delicti, in this scenario, is a variable rather than a constant connecting factor, giving rise, in essence, to a conflit mobile (ie, change in identity of locus delicti connecting factor). The circumstances are similar to those cases, often concerning ingestion of drugs or poison, where the courts experienced doubt in identifying the locus delicti, in that the place of acting and the place of harm differed, there being an elapse of time during which the symptoms developed (in different legal systems);Google Scholarsee Crawford, op cit, at 302 n 78.Google Scholar
100 which, both at common law and under the Act, allow for the segregation of issues arising in claim.Google Scholar
101 Ie, the law having the most significant relationship with that issue.Google Scholar
102 Ie, displacement of the law generally applicable, by reason of another law being substantially more appropriate to determine that issue.Google Scholar
103 Clearly there could be difficulties in such an event, if, say, Scots law did not recognize the basis of the aggravation action. Under Scots law, the matter would be governed by s 12 of the Administration of Justice Act 1982 (see n 87 above).Google ScholarContra Dicey, & Morris, op cit para 7–037: ‘An English court has no power…to increase an award of damages if the injuries become aggravated after a final judgment has been delivered. These rules would undoubtedly be applied even though different rules might exist in the lex causae.’ Further, at para 35–053: ‘Thus even where according to a foreign law applicable under the [1995] Act damages for personal injuries can be re-assessed in the light of changed circumstances, the English court will assess them ‘once and for all’.’Google Scholar
104 Cf generally, Crawford, EB ‘The Adjective and the Noun: Title and Right to Sue in International Private Law’ (2000) JR 347.Google Scholar
105 The Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (‘Rome II’) COM (2003) 427 final (2003/0168[COD]) (hereinafter ‘the Proposal’). (See <http://europa.eu.int/comm/justice_home/news/intro/news_220703_l_en.htm>.) Chapter II, Section 1 of the Proposal deals with the law applicable to non-contractual obligations arising out of a tort or delict, and Section 2 deals with non-contractual obligations arising out of an act other than a tort or delict (but limited to unjust enrichment and agency without authority). Section 3 provides rules common to all non-contractual obligations..)+Chapter+II,+Section+1+of+the+Proposal+deals+with+the+law+applicable+to+non-contractual+obligations+arising+out+of+a+tort+or+delict,+and+Section+2+deals+with+non-contractual+obligations+arising+out+of+an+act+other+than+a+tort+or+delict+(but+limited+to+unjust+enrichment+and+agency+without+authority).+Section+3+provides+rules+common+to+all+non-contractual+obligations.>Google ScholarSee Carruthers, JM and Crawford, EB ‘Conflict of Laws Update’ (2004) SLT (News) 19.Google Scholar
106 Cf Cook, op cit, at 352: ‘many of these problems of the form of action fall at least within the “twilight zone’ of our distinction between “substance” and “procedure’, and must therefore be solved by keeping in mind the purpose in view in drawing the distinction.’Google Scholar
107 Compare and contrast Anton, AEPrivate International Law (1st ednEdinburghW Green & Sons Ltd 1967), at 542, with Anton op cit, at 743. In 1967 the view held was that ‘[t]here has been a constant tendency in England to extend the domain of procedure, but it is thought that the constant aim of the Scottish courts should be to restrict it. To classify a foreign rule as procedural is to except it from its normal application in Scotland and, on general principles, exceptions are to be strictly interpreted. Their application should be controlled rigorously by their purpose, and the reason why the forum applies only its own procedural rules is simply a practical one; to permit the Scottish court to decline to apply foreign rules, the application of which within the terms of Scottish procedures would be impracticable’ (Cf Wolff op cit, at 18: ‘The courts of this country go very far in their definition of “procedure”…’). Significantly, by 1990, the view was that ‘[t]here was formerly a tendency to extend the domain of procedure, but it is thought that this tendency has now been checked. This is exemplified in the new s. 23A of the Prescription and Limitation (Scotland) Act 1973 and in Article 10(l)(d) of the EC Contractual Obligations Convention…It is not as yet clear how far this approach will be developed.‘Google Scholar
108 Graveson, op cit, at 593.Google Scholar
109 Cook, op cit, at 344.Google ScholarCf Wolff, op cit, at 230: ‘Only such foreign rules—even though framed as procedural rules—should be applied by the English courts as are so closely connected with the applicable substantive rules of the foreign country that otherwise the foreign substantive law would be, as it were, adulterated.’Google Scholar
110 Anton, op cit, at 743.Google Scholar
111 Walker, op cit, at 20, and at 35: ‘The only useful and necessary decision is whether particular problems should be determined in a Scottish court by Scots law as lex fori or by some other system of law which may be deemed involved in some material way. One cannot make that decision on a priori categorization of topics as pertaining to substantive law or to “procedure”.’Google Scholar
112 Eg, Re Wilks [1935] 1 ch 645; In re Goenaga [1949] P 367; Re Craven's Estate [1937] 1 ch 423.Google ScholarSee generally Crawford, op cit, para 4.07.Google Scholar
113 Robertson, op cit, at 247. Contrast the historical viewpoint: ‘Historically…Dicey was justified in throwing wide the net of procedure’ (Graveson op cit, at 591).Google Scholar
114 Rodger, BJ and Doorn, J Van ‘Proof of Foreign Law’ (1997) ICLQ 154, citing Zweigert (1973) 44 Colorado L Rev 283, 298: a survey showed that in thirty-two out of forty cases where foreign law was pleaded, it was misapplied by the American courts. See also the weary perplexity of Wynn-Parry J, in Re Duke of Wellington, Deceased [1947] Ch 506, at 515.Google Scholar
115 Cook, op cit, at 344.Google Scholar
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