Is the Original Domicile the Domicile of Origin?
| Published date | 01 May 1965 |
| Author | P. R. H. Webb |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01079.x |
| Date | 01 May 1965 |
MAY
1965
NOTES
OF
CASES
35
7
disputed that N.H.S. employees are Crown servants. The division
lay between the view of Lord Reid and Lord Evershed (with
Lord
Upjohn almost concurring), that
“
for
”
the services of the Crown
means: by Crown servants, in the course of their duties as such;
and the view of the minority, that the word
(‘
for
”
implies use
for the benefit of the Crown itself,
or
of Crown servants, as well
as by them. The minority view, as Lord Upjohn pointed out,
appears to involve the obviously untenable proposition that this
country maintains armed forces
for
the benefit of the servicemen
and not for the defence of the country’s inhabitants. This point
Lord Wilberforce, in
a
long and pointed speech, really fails to meet.
It
looks rather as if he meant to distinguish between defence as
being
for
the benefit of the Crown itself and health as being for
the benefit of the Crown’s subjects as distinct from the Crown.
Certainly nothing
in
his speech seems
to
suggest that he had any
other answer; and in a case as highly political in its implications
as
this such a distinction might well have appealed to him. But
the main argument of the minority seems to have been simply this:
that to accept the Crown’s contentions involved too great an
encroachment on the rights of patentees. This may be contrasted
with the characteristic observation of Lord Reid, that any grievance
is
for Parliament to remedy. The case thus opens up the interesting
possibility that the next few years may bring a change in the
House’s approach to the interpretation of statutes, and that in place
of
the firm adherence to the words of a statute typical of Lord Reid
the House may tend for a time to adopt a looser and more flexible
approach aimed primarily at producing what the House considers
a
reasonable result.
T.
A.
BUNCO
WHITE.
Is
THE
ORIGINAL
DOMICILE
THE
DOMICILE
OF
ORIGIN?
6‘
TEE
domicile that an infant acquires by reason of his father’s
removal to another country,” writes Professor Cheshire,
“
is
a
domicile of choice,
or
better perhaps
,of
quasi-choice, and
his domicile of origin continues to be that imposed upon him
at
birth.”’
A
rule
to this effect is accepted by all the
modern writers on conflict of laws except Westlake.2 The courts,
moreover, have accepted it-though implicitly rather than
explicitly; there is also
obiter
support for
It
has been left
1
Private International Law
(6th ed.,
1961),
p.
191.
2
Private International Law
(7th ed.,
1925),
pp.
344, 356.
3
Harrison
v.
Harrison
[1953] 1
W.L.R.
865
supports Cheshire, but Collingwood
J.
simply accepted counsel’s suggestion without giving
a
reaaoned judgment.
The case
has
been criticised by
J.
A.
C. Thomas
(1953) 2
I.C.L.Q.
633,
by
Prevezer in
(1954)
7
Current Legal Problems
114
at p.
121
et seq.,
and
Rayden
on Dicorce
(9th
ed.,
1964),
p.
36,
n.
(b).
That case was complicated
by
reason
of
the fact that the
propositus
had never been present in the country
of
his
immediate pre-majority domicile of quasi-choice.
Obiter
acceptance by
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