PHILLIPS v. EYRE REVISITED
| Author | Leonard Lazar |
| Date | 01 November 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb01240.x |
| Published date | 01 November 1969 |
PHILLIPS
v.
EYRE REVISITED
IN
the recent case of
Boys
v.
Chaplin
the English courts have been
subjected
to
two
conflicting pressures of basic importance-whether
to
take a narrow view of the rule in
Phillips
v.
Eyre,2
as enunciated
by Willes
J.,
in
the interests
of
certainty and simplicity
in
the law,
or
to
sacrifice those interests
in
favour of flexibility and the interests
of individual justice.
In
circumstances where justice indicated that the English law
should govern, but where
a
rigid construction
of
the rule
in
Phillips
v.
Eyre
would result in the Maltese law being applied, the
purpose of their Lordships
in
the House of
Lords,
as well as that
of the Master of the Rolls in the Court
of
A~peal,~ was quite
obvious, to find valid reasoning which would result in the appli-
cation
of
the English law. Thus ,the interests
of
justice
to
the
individual were paramount and the fascination
of
the case for the
conflicts lawyer lies
in
the use of the legal devices which were at
hand. The question could be classified as procedural for the
English law
to
govern as the
lex
fori;
the matter could be investi-
gated as one of public policy
on
the basis
of
the undesirability
of
forum-shopping,” the question then being whether the plaintiff’s
choice of an English forum
was
acceptable in the circumstances; the
rule in
Phillips
v.
Eyre
could be constructed on a narrow
or
a
wider basis;
or,
this rule could be abandoned in favour of a
current favourite, the proper law of tort.
The Master
of
the Rolls,
in
the Court
of
Appeal, delivered what
may turn out
to
be
a
mortal blow
to
the rule in
Phillips
V.
Eyre.
His
Lordship sought
to
interpret this rule as a general vehicle for the
application
of
the proper law of
tort.
The purpose of this article (which was originally written prior
to
the House of Lords appeal) is
to
demonstrate that
Lord
Denning’s
conclusion, with respect, is not borne out
on
a
detailed examination
of the reasoning of Willes
J.
Nevertheless, the effect of this attack
on
the rule
in
Phillips
v.
Eyre
is already apparent in the opinions
expressed in the House of
Lords.
This, despite the fact that the
rule has been most definitely affirmed by the Lords though, in
two opinions, construed
on
a wider and more flexible basis than
Willes
J.’s
actual words may convey
(Lord
Hodson and
Lord
Wilberforce)
6;
at the same time, the view is unanimous that the
1
[1969]
3
W.L.R.
322;
[1969]
0
All
E.R.
1085 (H.L.);
sub
nom.
Chaplin
v.
Bovs 119681 1
All
E.R.
283
(C.A.).
..
2
(1670)’L.R.
6
Q.B.
1.
3
Per
Lord Dennine M.R. r19681
1
Alcl
E.R.. at
DD.
286-290.
4
Lord
Hcdaon,
hd Wilberforce, Lord
‘DoGgvan,
Lord Pearson, Such
,affirmation
is
implicit
in
Lord Guest’s reasons.
5
Lord
Hodson
and Lord Wilberforce, in the interests
of
flexibility, considered
that
there
could
be exceptions
40
the general rule (as enunciated
by
Willes
J.)
638
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