REPORTS OF COMMITTEES LAW COMMISSION WORKING PAPER NO. 87*: CHOICE OF LAW IN TORT AND DELICT
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00851.x |
| Date | 01 July 1985 |
| Author | J. J. Fawcett |
| Published date | 01 July 1985 |
REPORTS
OF
COMMITTEES
LAW COMMISSION WORKING PAPER NO.
87*:
CHOICE
OF
LAW
IN
TORT AND DELICT
CHOICE
of law in tort and delict is an area ripe for reform. The
present rules, contained in
Phillips
v.
Eyre'
and
Boys
v.
Chaplin,2
are both anomalous and uncertain. The Working Party set up by
the two Law Commissions could have responded to this by merely
tinkering with the existing law. Instead, it has produced a set of
proposals which seeks to do far more than this.
The Working Party considered radical solutions for reform from
the United States3: governmental interest analysis, Cavers' principles
of preference and Leflar's choice influencing considerations.
Although these approaches were rejected as being unsuitable for
use in the English context and more familiar rules were preferred,
this should not be taken as a sign of half-heartedness by the
Working Party in the quest for the right conceptual solutions.
Much of the existing law is retained, albeit in modified form, but
this is justified by extremely sophisticated arguments and analysis,
often in policy terms.
The Working Paper is also extremely ambitious in its scope,
covering the complete field of tort and delict choice of law
problems. There are proposals for general rules to deal with basic
wrongs (personal injury, death, and damage to property) on which
this note concentrates. There are also special rules to be applied
for particular types of tort and delict,"
e.g.
accidents at sea and
economic torts and delicts; and for peripheral problemsY5 including
mixed tort and contract, and for special issues, such as where there
are multiple parties to an action.
The Alternatives: The Lex Fori, Lex Loci Delicti and Proper Law
It comes as
no
surprise to find a proposal that the much criticised
first limb
of
the rule in
Phillips
v.
Eyre,
requiring actionability by
English Law before the plaintiff can recover damages in England,
should be abolished.6 It was said that any choice of law solution
based on the
lex fori
would be too parochial, would be unfair to
the defendant, and would encourage forum shopping.' This leaves
the
lex loci delicti
and the proper law of the tort.
*
And Scottish
Law
Commission Consultative Memorandum
No.
62.
(1870
L.R.
6 Q.B.l.
[1971]
A.C.
356
3
See paras.
4.35-i.54.
'
See Part
V.
See Part
VI.
Part
111,
particularly paras.
3.1-3.10,
and Part
VII.
'
Paras.
4.24-4.34.
439
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