Machado v Fontes

JurisdictionEngland & Wales
CourtCourt of Appeal

Jurisdiction - Procedure - Alleged Libel - Publication in a Foreign Country - Action for Damages - Pleading.

An action will lie in this country in respect of an act committed outside the jurisdiction if the act is wrongful both in this country and in the country where it was committed; but it is not necessary that the act should be the subject of civil proceedings in the foreign country.

The rule enunciated in Phillips v. Eyre, (1870) L. R. 6 Q. B. 1, and The M. Moxham, (1876) 1 P. D. 107, applied.

APPEAL from Kennedy J. at chambers.

The plaintiff brought this action to recover damages from the defendant for an alleged libel upon the plaintiff contained in a pamphlet in the Portuguese language alleged to have been published by the plaintiff in Brazil.

The defendant delivered a statement of defence (in which, amongst other defences, he denied the alleged libel), and he afterwards took out a summons for leave to amend his defence by adding the following plea: “Further the defendant will contend that if (contrary to the defendant's contention) the said pamphlet has been published in Brazil, by the Brazilian law the publication of the said pamphlet in Brazil cannot be the ground of legal proceedings against the defendant in Brazil in which damages can be recovered, or (alternatively) cannot be the ground of legal proceedings against the defendant in Brazil in which the plaintiff can recover general damages for any injury to his credit, character, or feelings.”

The summons came before Kennedy J. in chambers, who allowed the plea to be added, but expressed some doubt as to the propriety of so doing, and gave leave to plaintiff to bring the present appeal.

Montague Lush, for the plaintiff, in support of the appeal. Although it may be that libel cannot in Brazil be made the subject of civil proceedings in which the plaintiff could recover damages, it is not an innocent act there, and can be made the subject of criminal proceedings. The plea is therefore bad, and should be struck out; for the authorities shew that an action will lie in this country in respect of an act committed abroad if such act is actionable in this country, and not “justifiable” where committed: Scott v. Lord SeymourF1; Phillips v. EyreF2; The M. MoxhamF3; The Halley.F4

Joseph Walton, Q.C., and A. J. Ashton, for the defendant. The plea amounts to this: that the publication of the alleged libel could not be made the subject of an action for damages in Brazil, and the defendant contends that if not actionable there it is not actionable here; and it is no answer to say that if there has been a libel there the State might cause criminal proceedings to be instituted in respect of it. The question as to whether the alleged tort is or is not actionable in Brazil is one of Brazilian law, and the proper course would be to send out a commission to thAt country for the purpose of inquiring into and ascertaining what the law on the subject is, instead of deciding the question on the materiAls now before the Court; and if it turns out that the plaintiff individually cannot by any civil proceedings in Brazil make the defendant...

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43 cases
  • Boys v Chaplin
    • United Kingdom
    • House of Lords
    • 25 June 1969
    ...they merely recognise them as the original of the copies which they themselves enforce". 21 I come to the much criticised decision of Machado v. Fontes [1897] 2 Q.B. 231 a decision of the Court of Appeal upon an interlocutory matter. This case was doubted by the Privy Council in Canadian Pa......
  • Chan Kwan Fong and Another v Chan Wah
    • Malaysia
    • Court of Appeal (Malaysia)
    • Invalid date
  • Sibir Energy Plc v Gregory Trading SA and Others
    • British Virgin Islands
    • High Court (British Virgin Islands)
    • 29 November 2005
    ...7. Grupo Torras v Al Sabah [2001] CLC 221. 8. Dubai Aluminium Co. Ltd v Salaam [1999] CLC 1469 9. Chaplin v Boys [1971] A.C. 356. 10. Machado v Fontes [1897] 2 Q.B. 231, C.A. overruled. 11. Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 A.C. 190. 12. Spiliada Maritime Corporation v Cansu......
  • Kuwait Airways Corp. v. Iraqi Airways Co. et al., (2002) 291 N.R. 1 (HL)
    • Canada
    • 16 May 2002
    ...N.C. 781 (C.P.D.), refd to. [para. 183]. Carr v. Fracis Times & Co., [1902] A.C. 176, refd to. [para. 184]. Machado v. Fontes, [1897] 2 Q.B. 231 (C.A.), refd to. [para. Scott v. Seymour (1862), 1 H. & C. 219 (Ex. Ct.), refd to. [para. 187]. Authors and Works Noticed: American Law In......
  • Request a trial to view additional results
3 books & journal articles
  • Edward John Eyre and the conflict of laws.
    • Australia
    • Melbourne University Law Review Vol. 32 No. 3, December 2008
    • 1 December 2008
    ...(1869) LR 4 QB 225. (3) See Kemp v Piper [1971] SASR 25, 27-8 (Bray CJ). (4) See The MMoxham (1876) 1 PD 107, 115 (Baggallay JA). (5) [1897] 2 QB 231, 233 (Lopes LJ), 235 (Rigby LJ). The defendant took out a summons for leave to amend his defence by pleading that by Brazilian law libel coul......
  • Tort
    • Canada
    • Irwin Books Conflict of Laws. Second Edition
    • 21 June 2016
    ...this case, see Rande W Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005). [1897] 2 QB 231 (CA) [1945] SCR 62 [McLean]. This conclusion is difficult to reconcile with the fact that the defendant was acquitted in Ontario proceedings......
  • Revolution and Evolution in Conflicts Law
    • United States
    • Louisiana Law Review No. 60-4, July 2000
    • 1 July 2000
    ...Privatrechts im Jahre 1992, No. 58 (Turkish residents of Germany have an accident in Turkey). [14] (1870) L.R. 6 Q.B. 1. [15] [1897] 2 Q.B. 231 [16] Private International Law (Miscellaneous Provisions) Act, 1995, ch. 42, § 10 (Eng.). [17] [1971] App. Cas. 356 (appeal taken from Eng. C.A.). ......

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