Mr. McGregor replies
| Published date | 01 July 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01290.x |
| Date | 01 July 1970 |
478
THE
MODERN
LAW
REVIEW
VOL
33
for writing is not to challenge Dr. McGregor to
a
syllogistic duel, but to
challenge the assumption-fundamental to his position-that Lord Wilberforce
was “prepared to create
a
limited exception to the applicability of the
lex
loci
delicti.”
Without the support of Lord Wilberforce, Dr. McGregor has
lost his majority, and his conclusions their value.
It
is submitted that
throughout his speech, Lord Wilberforce makes it perfectly clear that past
decisions-which he was not prepared to overrulethough giving some effect
to the
lex
loci,
have traditionally regarded English law as the dominant
partner, relegating the foreign law
to
the subordinate role of supplying, by
way of defence,
a
plea which, if effective according to that law,
will
in
some
circumstances be given effect to in England-
“a
person should not be permitted to claim in England in respect of
a
matter for which civil liability
does
not exist,
or
is excluded, under
the
law of the place where the wrong was committed.
. .
.
I
would therefore
restate
the basic rule of English law with regard to foreign torts
as
requiring actionability as
a
tort according
to
English law, subject to
the condition that civil liability
in
respect of the relevant claim exists
as between the actual parties under the law of the foreign country
where the act was done”
(per
Lord Wilberforce at p.
1102).
This
is
a
classic re-formulation of the rule
in
Phil@s
v.
Eyre
(1870)
L.R.
6
Q.B.
1
save
that
Lord Wilberforce insists that the
act
complained of
must give rise
to
dviZ
liability where committed, unless the connection between
the parties and the place of commission is too peripheral, ultroneous or
fortuitous to be legally relevant.
However, even assuming that Lord Wilberfurce were indeed
a
party to
Dr. McGregor’s heresy,
I
am wholly unable to comprehend why the over-
ruling of
Machado
v.
Pontes,
i.6.
insisting that henceforth the act complained
of must give rise
to
dd
liability according
to
the
lex
to&
&&ti,
involves
the proposition that “English law is not to be applied
as
the dominant
substantive law.”
Whilst
Boys
v.
Chaptin
has proved
a
few yards short of
a
milestone,
a
bare majority has, if nothing else, conferred the senior partnership on
English law
qua
lea
fori,
whilst the lex loci is the au
pair
with the
occasional
Sunday off.
Thus, although Dr. McGregor may have gained fresh insights into what
the law ought
to
be, it
is
unfortunate that they are not shared by
a
majority
of the House of Lords.
Znstitut
fiir
Internationales
und
Azurlandd8ches Pdvatrecht
P.
G~BEE.
der
UniversCtat
Kbln.
Mr.
McGregor replies:
With
respect,
bu,t equally with conviction,
I
regard Dr. Gerber’s above
analysis as totally misconceived. He fails to take into account the fact that
there are
two
propositions implicit in
Yochado
v.
Fmte8-a
fact reflected in
the two unsuccessful pleas of the defendant and brought
out
very clearly
by Diplock
L.J.
in the Court
of
Appeal in
Boys
v. Chapfin
[1968]
2
Q.B.
1,
-and that
both
these propositions are rejected by Lord Wilberforce.
The propositions are
that
the plaintiff was entitled to succeed in his claim
for general damages for libel
(1)
even if there was no civil as opposed to
criminal liability by the
leg
loci
delicti
and
(2)
even if there was civil liability
by the
Zex
loci
dekti
but extending only
to
allowing special damages. In
restating the basic rule
so
as
to
require civil liability by the
lex
loci
dekcti,
Lord Wilberforce clearly envisaged not only that the
existence
of civil liability
by the
lex
loci
deticti
must be shown but also that the
extent
of
that civil
liability must be as great as would be imposed by the
lez
fori.
Thus under
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