Correspondence
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01291.x |
| Date | 01 July 1970 |
| Published date | 01 July 1970 |
JULY
1970
CORRESPONDENCE
479
the basic
rule
the plaintiff will be limited to his pecuniary loss if this is all
the
lex
loci
de2kti
will
allow even if English law would be less restrictive.
There is therefore no question, under Lord Wilberforce’s basic rule,
of
the
lex
loci
delicti
playing
a
‘‘
subordinate
role,”
and indeed the proposition that
English law-that
is,
English law as the
lex
fo&“is not
to
be applied
as
the
dominant substantive law” must follow; the
Eex
fori and the
lex loci
delicti have equal control of the situation and
a
plaintiffs claim will fail to
the extent
that
he cannot satisfy both.
“his then is Lord Wilberforce’s basic rule. Yet, like his brethren, he was
prepared to allow the plaintiff damages for his non-pecuniary loss and
so
reached
a
result which the
lex
loci
dellcti would not have countenanced. This
was because he arrived
at
the further conclusion that, in applying his basic
rule, the claims of the
lex
loci
delicti must in exceptional cases defer to the
claims of the proper law which must then be substituted for
it,
that
Boys
v.
Chaplin was such an exceptional case, and that the proper law was English;
accordingly, the
“
fundamental assumption
”
that Lord Wilberforce was
“prepared to create
a
limited exception to the applicability of the
lex
loci
debicti”-that is,
as
the law
to
be applied side by side with the
lex
folG
is completely justified. English law was applied by Lord Wilberforce not
because,
as
the
lex
fad,
it was the dominant substantive law but because
it was the proper law
LW
well
LW
being the
lex
fori. Indeed, had not Lord
Wilberforce rejected the second
as
well as the
first
proposition implicit in
Machado v. Pontes-so that English law
as
to heads of damage could have
been applied once it was established that Maltese law would recognise
some
degree of civil liability-there would never have been any need for him to
trouble to explore the concept of the proper law and to base his decision
upon
a
limited acceptance of it.
THE
EDITOR,
Sir,
Mr. Goldberg, in his brief but passionately argued support for the view
that the general meeting may exercise the powers of the company not specially
delegated to the directors, does not do justice to his view of the law
(
(1970)
33
M.L.R.
177).
For he has, presumably because he is
a
Victorian, not
referred, for support of the view he puts forward, to the New South Wales
decision of Dowse v.
lllarks
(1913) 13
S.R.
(N.S.W.)
332.
In that case
Harvey
J.
(as
he then was),
in
interpreting clause
103
of the Articles of
Association of George Marlow Ltd.,
a
clause which whilst it differed in minor
contextual ways
to
Art.
80
of English Table
A,
was nearly
the
same clause,
held that the general meeting did have the power
to
“run the company.”
It
was argued in
this
case that
the
Managing Director, unlike the Board
of
Directors, was not subject to the control of the company
in
general meeting.
Reliance was sought by the Managing Director on the decision in
Cumghm’s
case
[1906]
2
Ch.
84.
However, Harvey
J.,
resting
in
the main on the
interpretation propounded by Neville
J.
in Marshalt’s
Vdve
Gear
00.
v.
Mannimg
Wardle
Q
Co.
Ltd.
[11909]
1
Ch.
207,
felt
that
in the absence
of
specifically delegated power,
the
Managing Director could not be said
to
exercise greater powers than the Board, which itself was “controlled” by
the general meeting, except where it was delegated special power. Outside
of this delegated field of authority the Board was
“
subject to control by the
vote of
a
simple majority of the company
in
general meeting
. .
.”
(13
S.R.
at p.
343).
It
may be argued that the decision in
Dow~e
v. Marks turns on its rather
unusual fact situation.
It
has not been distinguished by any later case,
although it was decided well before
Sharer‘s
case
[1935]
2
K.B.
113
and
Bcott
v.
Scott
[I9431
1
All
E.R.
582.
The
Modern
Law
Review.
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