Posts Tagged Tort
Done but not dusted. Sophocleous v Foreign Secretary (historic human rights infringement): common law conflicts history (double actionability, tort) at the Court of Appeal.
 EWCA Civ 2167 Sophocleous v Foreign Secretary et al is a good reminder that conflicts rules past have a tendency not to be so easily forgotten. And in the case of the English law, one or two of them may well be revived post-Brexit (with the usual caveats). Judgment in first instance was  EWHC 19 (QB) which is reviewed here.
Longmore J: ‘The common law private international rule used by the courts to determine liability in an English court in respect of foreign torts (usually referred to as the double actionability rule) was prospectively abolished by the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”) for all torts except defamation. But it casts a long shadow because section 14(1) of the 1995 Act expressly provides that its provisions do not apply to “acts or omissions giving rise to a claim which occur before the commencement” of the relevant Part of the Act. The 1995 Act has itself been largely superseded by the provisions of the Rome II Convention (sic) but that likewise only applies to events occurring after its entry into force.
Claimants seek damages for personal injuries sustained in Cyprus, as a result of alleged assaults perpetrated in Cyprus by members of the UK armed forces, seconded British police officers and servants or agents of the then Colonial Administration. The appeal relates to alleged torts committed during the Cyprus Emergency sixty years ago between 1956 and 1958. Accordingly the old common law rule of double actionability applies. In the last edition of Dicey and Morris, Conflict of Laws published before the 1995 Act (12th edition (1993)) the double actionability rule was stated as follows in rule 203:
“(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both
a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and
b) actionable according to the law of the foreign country where it was done.
(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.”
The last element is known as the “flexible exception” – of note is that the exception can apply to the whole of the tort of only part of the legal issues it provokes: depecage, therefore, is possible.
In fact whether Cypriot law is lex causae is first of all relevant for determining whether the claim has exceeded the statute of limitation: again in the words of Longmore J: ‘the Foreign Limitation Periods Act 1984 (“1984 Act”) governs limitation in claims where the law of any other country is to be taken into account. Section 1 provides that where foreign law falls to be taken into account in English proceedings that includes the foreign law of limitation, unless the law of England and Wales also falls to be taken into account, in which event the limitation laws of both countries apply, the effective limitation period being the shorter of the two. However, section 2 provides an exception: where the outcome under section 1 would conflict with public policy, section 1 is disapplied to the extent that its application would so conflict. By section 2(2) the application of section 1 conflicts with public policy “to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings …”. It is therefore necessary to determine whether foreign law falls to be taken into account; this has to be determined in accordance with rules of private international law.’
To settle the issue the locus delicti commissi needs to be determined (the double actionability rule is only relevant where the tort is actionable according to the law of the foreign country where it was done). This is clearly Cyprus: at 21: ‘..there is only one tort. If that tort was committed by the primary actor in Cyprus, the fact that a person jointly liable for the commission of the tort was elsewhere when he gave the relevant assistance makes no difference to the fact that the tort was committed in Cyprus.’
On whether the flexible exception for determining lex causae as a whole applies (reminder: here relevant only for the issue of limitation), Longmore J disagrees with Kerr J, the judge in the first instance case at the High Court. The flexible exception remains an exception and must not become the rule. At 56 (after lengthy reflection of various arguments brought before him): ‘In the case at issue there are no “clear and satisfying grounds” required by Lord Wilberforce at page 391H of Boys v Chaplin for departing from the general rule of double actionability. There is a danger that if the exception is invoked too often it will become the general rule to give primacy to English law rather than law of the place where the tort was committed. That would not be right.’
And at 63, he agrees with Kerr J that the flexible exception does not apply singularly to the issue of limitation.
Conclusion: both the law of Cyprus and the law of England and Wales apply for the purpose of determining limitation. The remainder of the issues are to be held later.
Fun with conflicts – albeit evidently on not a very happy topic.
Jurisdiction re prospectus liability. CJEU reiterates Universal Music in Löber v Barclays. Unfortunately fails to identify the exact locus damni and leaves locus delicti commissi unaddressed.
I reviewed Advocate-General Bobek’s Opinion in C-304/17 Löber v Barclays here. The following issues in particular were of note (I simply list them here; see the post for full detail): First, the AG’s view, coinciding with mine, that the CJEU’s finding in CDC that locus damni for a pure economic loss, in the case of a corporation, is the place of its registered office, is at odds with precedent (he made the same remark in flyLAL). Next, on locus delicti commissi, the AG suggests that despite Article 7(2)’s instruction, a single ldc within the Member State in the case at hand cannot be determined. Further, for locus damni, I disagree for reasons explained in the post with the AG’s suggestions.
The Court held on Wednesday. At 26 it immediately cuts short any expectation of clarification on locus delicti commissi: ‘In the present case, the case in the main proceedings concerns the identification of the place where the damage occurred.’
The referring court’s questions were much wider, asking for clarification on ‘jurisdiction’ full stop. Yet the Court must have derived from the file that only locus damni was in dispute. A missed opportunity for as I noted, Bobek AG’s views on that locus delicti commissi are not obvious.
On locus damni then, I may be missing a trick here but the Court simply does not answer the referring court’s question. As the AG notes, Ms Löber in order to acquire the certificates, transferred the corresponding amounts from her current (personal) bank account located in Vienna, to two securities ‘clearing’ accounts in Graz and Salzburg. Payment was then made from those securities accounts for the certificates at issue. The Court refers to Kolassa and to Universal Music, to reiterate that the simple presence of a bank account does not suffice to establish jurisdiction: other factors are required, such as here, at 33,
‘besides the fact that Ms Löber, in connection with that transaction, had dealings only with Austrian banks, it is furthermore apparent from the order for reference that she acquired the certificates on the Austrian secondary market, that the information supplied to her concerning those certificates is that in the prospectus which relates to them as notified to the Österreichische Kontrollbank (Austrian supervisory bank) and that, on the basis of that information, she signed in Austria the contract obliging her to make the investment, which has resulted in a definitive reduction in her assets.’
The Court concludes that ‘taken as a whole, the specific circumstances of the present case contribute to attributing jurisdiction to the Austrian courts.’
That however was not seriously in doubt: the more specific question is which one: Vienna? (which had rejected jurisdiction) Graz and /or Salzburg? Article 7(2) requires identification of a specific court (which the AG had identified in his opinion: I may not follow his argumentation, but it did lead to a specific court): not merely a Member State, and the Oberster Gerichtsthof had specifically enquired about the need for centralisation of the claim in one place.
All in all a disappointing judgment which will not halt further questions on jurisdiction for prospectus liability.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.7
IM Skaugen v MAN. Relevance and location of indirect damage in case of misrepresentation, and forum non conveniens in Singapore.
I shall be posting perhaps tomorrow on yesterday’s CJEU judgment in Löber v Barclays (prospectus liability – see my review of Bobek AG’s Opinion here), but as a warming-up for comparative purposes, a note on  SGHC 123 IM Skaugen v MAN. I have not been able to locate copy of the judgment (I am hoping one of my Singaporean followers might be able to send me one) so I am relying entirely on the excellent post by Adeline Chong – indeed in general I am happy largely to refer to Adeline’s post, she has complete analysis.
The case concerns fraudulent misrepresentation of the fuel consumption of an engine model sold and installed into ships owned by claimants (Volkswagen echo alert). Defendants are German and Norwegian incorporated companies: leave to serve out of jurisdiction needs to be granted. Interesting comparative issues are in particular jurisdiction when only indirect damage (specifically: increased fuel consumption and servicing costs with downstream owners who had purchased the ships from the first owners) occurs there; and the relevance of European lis alibi pendens rules for forum non conveniens purposes.
On the former, Singaporean CPR rules would seem to be prima facie clearer on damage not having to be direct for it to establish jurisdiction; a noted difference with EU law and one which also exercised the UK Supreme Court in Brownlie. Note the consideration of locus delicti and the use of lex fori for same (a good example in my view of the kind of difficulties that will arise if when the Hague Judgments project bears fruit).
On forum non conveniens, Spiliada was the main reference. Of interest here is firstly the consideration of transfer to the Singapore International Commercial Court (SICC); and the case-specific consideration of availability of forum: the Norwegian courts had been seized but not the German ones; Germany had been identified by the Singaporean High Court as locus delict: not Norway; yet under the Lugano Convention lis alibi pendens rule, the German courts are now no longer available.
In this post I, unusually, offer questions rather than tentative answers. I hope you’ll enjoy the pondering and of course I have ideas of my own on all of these issues. Thank you Michiel Poesen for alerting me to Carles Puigdemont et al’s case in the Belgian civil courts.
The case is not about trying to employ the Belgian courts to have a Spanish Supreme Court judge removed from the case. (Contrary to what De Standaard report in their title – in an otherwise informative piece). Pablo Llarena had commented on the case (specifically: rejecting an argument raised by the defence) at an academic conference. Rather, as I understand the case (public detail is scant), applicants suggest the alleged violation of impartiality infringes their right to such impartiality which in Belgium at least, is a civil right, constitutionally guaranteed.
The case therefore is one in tort. The exact request to the court is as yet unknown: provisional measures? damages? One assumes the very finding by a Belgian court of a finding of partiality and hence infringement of fundamental rights, will be employed in any future trials in Spain.
So far a little context. Here are the questions:
- What kind of law is engaged here?: is this private international law? Is it public international law? (see prof Hess’ contribution to the Recueil, on the private /public divide).
- Are the proceedings ‘international’ enough to trigger the application of private international law; are they simply ‘Spanish’ and what impact does that have on the jurisdiction of the Belgian courts;
- Are such proceedings ‘civil and commercial’ within the meaning of the Brussels regime; specifically, what is the impact of a Supreme Court judge spending much of their time engaging in what has to be considered a ‘public’ function, now speaking at an academic conference. (Think Kuhn, Fahnenbrock etc.).
- If the Brussels I regime is triggered, what type of provisional measures is possible?
- If the Brussels I regime is triggered, how does Article 7(2) apply; where is the locus delicti commissi and where the locus damni; how does e-Date apply if at all;
- Along similar lines: how does applicable law apply given that defamation is exempt from Rome II; (see Belgium’s regime in Articles 99-100 WIPR in particular); and
- What is the impact, if any, of chances of enforcement of the judgment in Spain.
These are the issues I suspect will be of some relevance in the conflicts field. Happy pondering.
Sometimes I post a little late. Rarely outrageously overdue. Yet Four Seasons Holdings Inc v Brownlie  UKSC 80 needs to be reported on the blog for it is rather important, firstly, with respect to the topical interest in pursuing holding companies for actions (or lack fo them) committed by affiliated companies. And secondly, for jurisdiction in tort, to what degree jurisdiction on the basis of injury sustained abroad, can qualify as lasting damage in the UK. Findings on the latter issue were obiter therefore they need to be treated with caution.
All five judges issued a judgment, with a 3 to 2 majority eventually holding (again: obiter) that jurisdiction in tort in England against non-England based defendants, can go ahead on the basis of indirect damage – albeit in such cases it might still falter on forum non conveniens grounds.
Sumption J, outvoted on the indirect damage issue, wrote the most lengthy judgment.
I tweeted the ruling mid December. Students of international law will of course appreciate the personal background to the case, particularly if you have ever had the chance to be taught by prof Sir Ian Brownlie – Philippe Sands’ obituary is here.
Sir Ian died in a car accident while on holiday with his family in Egypt. His wife was also injured. She brought proceedings seeking: (i) damages for her own personal injuries, (ii) damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ian’s executrix, and (iii) damages for her bereavement and loss of dependency under the Fatal Accidents Act 1976.
The First Defendant, Four Seasons Holdings Inc (“Holdings”), is the holding company of the Four Seasons hotel group. It is incorporated in British Columbia. The Second Defendant, Nova Park SAE (“Nova Park”) is an Egyptian company which was identified by Lady Brownlie’s solicitors as the owner of the hotel building. The case falls outside the Brussels I Recast Regulation therefore. However reference to Brussels and particularly of course to Rome II is made in the various judgments, for even though the English Courts do not decide jurisdiction on the basis of Brussels, they do have to apply Rome I or II if the suit qualifies as one in contract cq tort.
The Court of Appeal [ EWCA Civ 665] had held that the jurisdictional gateways were not satisfied. There was no contract with Four Seasons Holdings, and given that Holdings was not the owner, there could be no claim in tort for vicarious liability.
David Hart QC has excellent (much more swift) analysis here and I am happy largely to refer. A few points of additional interest.
On the issue of suing holding companies, Sumption J writing at 14 ff dismisses service out of jurisdiction for there is no reasonable possibility of a claim succeeding: at 15:
‘there is no realistic prospect that Lady Brownlie will establish that she contracted with Holdings, or that Holdings will be held vicariously liable for the negligence of the driver of the excursion vehicle.’ That is because (at 14) it is entirely clear ‘that Holdings is a nontrading holding company. It neither owns nor operates the Cairo hotel, which has at all material times been owned by Nova Park, a company with no corporate relationship to any Four Seasons company. A Dutch subsidiary of Holdings called Four Seasons Cairo (Nile Plaza) BV entered into an agreement with Nova Park to operate the hotel on behalf of Nova Park, although at the material times the actual operator was an Egyptian subsidiary of Holdings, FS Cairo (Nile Plaza) LLC, which assumed the contractual obligations of the operator by assignment. Other subsidiaries of Holdings supplied advice and specific services such as sales, marketing, central reservations and procurement, and licensed the use by Nova Park of the Four Seasons Trade Mark’.
Judgment in Brownlie preceded the current cases referred to it on the subject of CSR and jurisdiction (see my previous postings on that, most recently Unilever). Yet it is clear that plaintiffs have to show much more than a corporate bloodline between mother companies and affiliated undertakings, for suits to have any chance of success.
The case could have ended here for all five judges agree on this point. Yet aware of the relevance of direction, discussion was continued obiter on the topic of suing in tort. Firstly it was clear that if a claim in tort could be brought in the English courts, it would be subject to Egyptian law per Article 4(1) Rome II. In the Court of Appeal, Arden LJ had taken analogy with that Article (and the whole Regulation)’s rejection of indirect damage as relevant for deciding lex causae. And of course Rome II’s stance on this point is influenced by the CJEU’s case-law going in the same direction, but then for jurisdiction, in Marinari and the like. Sumption J cites Canadian authority (Stephen Pittel has reference to it here) and is critical of too much emphasis put on a connection between jurisdiction and applicable law, for determining jurisdiction.
Big big pat on his back; readers of the blog know (see eg here) I am not at all enthused by too much analogy between jurisdiction and applicable law).
Sumption at 22
It is undoubtedly convenient for the country of the forum to correspond with that of the proper law. It is also true that both jurisdiction and choice of law can broadly be said to depend on how closely the dispute is connected with a particular country. But there is no necessary connection between the two. The Practice Direction contemplates a wide variety of connecting factors, of which the proper law is only one and that one is relevant only to contractual liabilities. For the purpose of identifying the proper law, “damage” is limited to direct damage because article 4 of Rome II says so in terms. It does this because there can be only one proper law, and the formulation of a common rule for all EU member states necessarily requires a more or less mechanical technique for identifying it. By comparison, indirect damage may be suffered in more than one country and jurisdiction in both English and EU law may subsist in more than one country.
Lady Hale is even more to the point at 49: ‘Applicable law and jurisdiction are two different matters. There is no necessary coincidence between the country with jurisdiction and the country whose law is applicable.‘
Yet for the case at hand ultimately Sumption J does curtail the relevance of indirect damage: at 23:
There is, however, a more fundamental reason for concluding that in the present context “damage” means direct damage. It concerns the nature of the duty broken in a personal injury action and the character of the damage recoverable for the breach. There is a fundamental difference between the damage done to an interest protected by the law, and facts which are merely evidence of the financial value of that damage. Except in limited and carefully circumscribed cases, the law of tort does not protect pecuniary interests as such. It is in general concerned with non-pecuniary interests, such as bodily integrity, physical property and reputation which are inherently entitled to its protection.
At 29 ff follows Sumption’s engagement with relevant CJEU authority, leading him eventually to reject indirect damage as a basis for jurisdiction. That same authority is also discussed by Lady Hale and more succinctly by the others, however they prefer to take the English law on this point in a different direction, particularly taking the CPR (the relevant English civil procedure rules) use of the word ‘damage’ at face value, meaning including indirect damage: residual English PIL therefore not determined by CJEU authority.
As noted in my introduction, even if jurisdiction can be established on the basis of indirect damage in England, forum non conveniens may still scupper jurisdiction eventually.
When I reported the first salvos in Goldhar v Haaretz I flagged that the follow-up to the case would provide for good comparative conflicts materials. I have summarised the facts in that original article. The Ontario Court of Appeal in majority dismissed Haaretz’ appeal in 2016, 2016 ONCA 515. In Haaretz.com v. Goldhar, 2018 SCC 28, the Canadian Supreme Court has now held in majority for a stay on forum non conveniens grounds. Both the lead opinion, the supporting opinions and the dissents include interesting arguments on forum non conveniens. Many of these, as Stephen Pitel notes, include analysis of the relevance of obstacles in enforcement proceedings.
If ever I were to get round to compiling that published reader on comparative conflicts, this case would certainly feature.
Have a good start to the working-week (lest it started yesterday in which case: bonne continuation).
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52.