The
UK Supreme Court (Lord Sumption; Lord Mance concurring) today gave judgment in
an important case, Cox
v Ergo Versicherung AG (‘Cox’),
involving three questions of private international law and some ancillary
points relating to the doctrine of mitigation. The Indian courts, faced with
similar (even identical) questions, have had to apply old common law rules that
have been legislatively abolished in the United Kingdom, and the contrast in
the results that they have reached is striking.
UK Supreme Court (Lord Sumption; Lord Mance concurring) today gave judgment in
an important case, Cox
v Ergo Versicherung AG (‘Cox’),
involving three questions of private international law and some ancillary
points relating to the doctrine of mitigation. The Indian courts, faced with
similar (even identical) questions, have had to apply old common law rules that
have been legislatively abolished in the United Kingdom, and the contrast in
the results that they have reached is striking.
In
May 2004, Major Christopher Cox was killed in a road accident in Germany. His
widow, Mrs Cox, who moved back to England soon after the incident, brought a
claim against the driver’s German insurer, Ergo, in the English court. This she
was entitled to do by virtue of the 2001 Judgments
Regulation about which nothing further needs to be said. But what was the
applicable law: German or English? This is governed by the Private
International Law (Miscellaneous Provisions) Act, 1995. The 1995 Act
largely abolished the common law choice of law rule for foreign torts—‘double
actionability’—which still applies in India (see below).
May 2004, Major Christopher Cox was killed in a road accident in Germany. His
widow, Mrs Cox, who moved back to England soon after the incident, brought a
claim against the driver’s German insurer, Ergo, in the English court. This she
was entitled to do by virtue of the 2001 Judgments
Regulation about which nothing further needs to be said. But what was the
applicable law: German or English? This is governed by the Private
International Law (Miscellaneous Provisions) Act, 1995. The 1995 Act
largely abolished the common law choice of law rule for foreign torts—‘double
actionability’—which still applies in India (see below).
Under
the 1995 Act, Mrs Cox’s claim against the insurance company was governed by
German law. §844 of the German BGB (which is in the section of the civil code
dealing with tort) provided, in essence, that Mrs Cox was entitled to damages
that would restore her to the financial position in which she would have been had
Major Cox not died ([5]). The
difficulty arose because Mrs Cox remarried after Major Cox’s death and had two
children with her new partner. Under German law, this meant that her new
partner was under a legal obligation to provide maintenance and this
‘benefit’ had to be taken into account in computing the damages to which she
was entitled under §844. However, in English
law, the Fatal
Accidents Act, 1976, provides that the court “shall not take into account the re-marriage of the widow or her
prospects of re-marriage”: if this Act could be invoked, Mrs Cox was
entitled to recover considerably more than under German law.
the 1995 Act, Mrs Cox’s claim against the insurance company was governed by
German law. §844 of the German BGB (which is in the section of the civil code
dealing with tort) provided, in essence, that Mrs Cox was entitled to damages
that would restore her to the financial position in which she would have been had
Major Cox not died ([5]). The
difficulty arose because Mrs Cox remarried after Major Cox’s death and had two
children with her new partner. Under German law, this meant that her new
partner was under a legal obligation to provide maintenance and this
‘benefit’ had to be taken into account in computing the damages to which she
was entitled under §844. However, in English
law, the Fatal
Accidents Act, 1976, provides that the court “shall not take into account the re-marriage of the widow or her
prospects of re-marriage”: if this Act could be invoked, Mrs Cox was
entitled to recover considerably more than under German law.
Mrs
Cox argued that §844 did not apply because it was a rule of ‘procedure’: it is
a well-established rule in the conflict of laws that questions of procedure are
governed by the lex fori. That rule
has been partly abolished in England but remains the law in India and was the
law in England at the time of Major Cox’s accident. The Supreme Court held,
casting some doubt on Lord Hoffmann’s speech in Harding
v Wealands, that §844 was a rule of substance, not procedure, because
it dealt with the ‘scope’ of the defendant’s duty. Lord Sumption also pointed
out that §844 is simply a rule of causation—and therefore a matter of
substance—because all it says is that a widow who remarries must give credit
for the benefits arising therefrom to the extent it reduces her loss (see [17]). Lord Sumption therefore appears
to treat mitigation as a rule of causation,
a view persuasively canvassed by Mr Dyson and Mr Kramer in the latest volume of
the Law
Quarterly Review. But Lord Sumption held that it was unnecessary to
characterise the Fatal Accidents Act because it did not apply to a German tort even if it was a rule of procedure: the Act, properly construed,
only contains rules about the assessment of damages for a cause of action arising under the Act. If, therefore,
the English court had to apply its own rules of assessment (and not §844), it
had to apply the common law rules (including mitigation), not the Fatal
Accidents Act. Mrs Cox’s case would fail on either hypothesis.
Cox argued that §844 did not apply because it was a rule of ‘procedure’: it is
a well-established rule in the conflict of laws that questions of procedure are
governed by the lex fori. That rule
has been partly abolished in England but remains the law in India and was the
law in England at the time of Major Cox’s accident. The Supreme Court held,
casting some doubt on Lord Hoffmann’s speech in Harding
v Wealands, that §844 was a rule of substance, not procedure, because
it dealt with the ‘scope’ of the defendant’s duty. Lord Sumption also pointed
out that §844 is simply a rule of causation—and therefore a matter of
substance—because all it says is that a widow who remarries must give credit
for the benefits arising therefrom to the extent it reduces her loss (see [17]). Lord Sumption therefore appears
to treat mitigation as a rule of causation,
a view persuasively canvassed by Mr Dyson and Mr Kramer in the latest volume of
the Law
Quarterly Review. But Lord Sumption held that it was unnecessary to
characterise the Fatal Accidents Act because it did not apply to a German tort even if it was a rule of procedure: the Act, properly construed,
only contains rules about the assessment of damages for a cause of action arising under the Act. If, therefore,
the English court had to apply its own rules of assessment (and not §844), it
had to apply the common law rules (including mitigation), not the Fatal
Accidents Act. Mrs Cox’s case would fail on either hypothesis.
The
Indian courts have considered virtually identical questions in recent years.
The starting point is that there is no statutory choice of law rule in India
that corresponds to the 1995 Act. As a consequence, any foreign tort litigated
in an Indian court is governed by the ‘double actionability’ rule. This was the
English choice of law rule until it was largely abolished by the 1995 Act. Double
actionability has been the choice of law rule in India since at least 1915. In 1960, the Rajasthan High Court applied
it to the Fatal Accidents Act and in 2010, the Punjab & Haryana High
Court applied it to the Motor Vehicles Act. This means that the defendant’s
act must be shown to be ‘wrongful’ (civilly, not criminally) both in the foreign country and under
Indian law, and this can often lead to difficult questions, as Boys v Chaplin amply demonstrates. In Sona Devi, it led to the conclusion that
the Motor Vehicles Accident Claims Tribunal in Punjab had jurisdiction to award
compensation with respect to a motor accident in Nepal, because the bus was
operated by an Indian company and was carrying Indian passengers.
Indian courts have considered virtually identical questions in recent years.
The starting point is that there is no statutory choice of law rule in India
that corresponds to the 1995 Act. As a consequence, any foreign tort litigated
in an Indian court is governed by the ‘double actionability’ rule. This was the
English choice of law rule until it was largely abolished by the 1995 Act. Double
actionability has been the choice of law rule in India since at least 1915. In 1960, the Rajasthan High Court applied
it to the Fatal Accidents Act and in 2010, the Punjab & Haryana High
Court applied it to the Motor Vehicles Act. This means that the defendant’s
act must be shown to be ‘wrongful’ (civilly, not criminally) both in the foreign country and under
Indian law, and this can often lead to difficult questions, as Boys v Chaplin amply demonstrates. In Sona Devi, it led to the conclusion that
the Motor Vehicles Accident Claims Tribunal in Punjab had jurisdiction to award
compensation with respect to a motor accident in Nepal, because the bus was
operated by an Indian company and was carrying Indian passengers.
The
third question considered in Cox is
perhaps even more important in India: when can statutes apply irrespective of proper law? That is, can
the Fatal Accidents Act—or other legislation, for example the Workmen’s
Compensation Act—apply to an incident that takes place outside India but which
has some connection with India? Where statutes explicitly provide that they
apply if some particular form of connection exists, there is no difficulty, but
statutes are usually silent about this. Mrs Cox argued that the Fatal Accidents
Act ought to apply even if the proper law was German because it was an ‘overriding’
or ‘mandatory’ rule of the forum. As Lord Sumption explains, the presumption
against extra-territorial operation—which at first sight might appear to be a
reason for not construing the Fatal Accidents Act in this way—in fact consists
of two distinct questions:
third question considered in Cox is
perhaps even more important in India: when can statutes apply irrespective of proper law? That is, can
the Fatal Accidents Act—or other legislation, for example the Workmen’s
Compensation Act—apply to an incident that takes place outside India but which
has some connection with India? Where statutes explicitly provide that they
apply if some particular form of connection exists, there is no difficulty, but
statutes are usually silent about this. Mrs Cox argued that the Fatal Accidents
Act ought to apply even if the proper law was German because it was an ‘overriding’
or ‘mandatory’ rule of the forum. As Lord Sumption explains, the presumption
against extra-territorial operation—which at first sight might appear to be a
reason for not construing the Fatal Accidents Act in this way—in fact consists
of two distinct questions:
28.
It is, however, important to understand what is meant when we talk of the extra-territorial
application of an English statute. There are two distinct questions, which are
not always distinguished in the case-law. The first question is what is the proper
law of the relevant liability. The answer will usually depend on the extent of any
connection between the facts giving rise to liability and England or English law.
If the proper law of the liability is English law, no question of extra-territorial
application arises. In principle the exercise is no different from that
which the court performs when it identifies the proper law of a non-statutory
tort, by reference to the connection between the facts and the various
alternative systems of law … The second question is one of extra-territorial
application, properly so-called. It is the question posed by section 14(3)(a)(i)
and 14(4) of the Private International Law (Miscellaneous Provisions) Act 1995,
which had its counterpart in the common law, namely whether the choice of law
arrived at in accordance with sections 11 and 12 is displaced by some mandatory
rule of the forum. This is not a choice of law principle at all, but turns on
the overriding rules of policy of the forum.
It is, however, important to understand what is meant when we talk of the extra-territorial
application of an English statute. There are two distinct questions, which are
not always distinguished in the case-law. The first question is what is the proper
law of the relevant liability. The answer will usually depend on the extent of any
connection between the facts giving rise to liability and England or English law.
If the proper law of the liability is English law, no question of extra-territorial
application arises. In principle the exercise is no different from that
which the court performs when it identifies the proper law of a non-statutory
tort, by reference to the connection between the facts and the various
alternative systems of law … The second question is one of extra-territorial
application, properly so-called. It is the question posed by section 14(3)(a)(i)
and 14(4) of the Private International Law (Miscellaneous Provisions) Act 1995,
which had its counterpart in the common law, namely whether the choice of law
arrived at in accordance with sections 11 and 12 is displaced by some mandatory
rule of the forum. This is not a choice of law principle at all, but turns on
the overriding rules of policy of the forum.
It
is thus entirely possible for a statute to apply to a transaction outside India
even though the statute is not expressly made applicable to it: while Lord
Sumption concluded that the presumption against extra-territorial operation was
not rebutted for the Fatal Accidents Act, the problem in general is a difficult
one in the conflict of laws, and frequently of practical importance in litigation
concerning international transactions (more detail is available in Professor Briggs’ article on the subject in the Singapore Journal of Legal Studies, 2005, at page 189).
is thus entirely possible for a statute to apply to a transaction outside India
even though the statute is not expressly made applicable to it: while Lord
Sumption concluded that the presumption against extra-territorial operation was
not rebutted for the Fatal Accidents Act, the problem in general is a difficult
one in the conflict of laws, and frequently of practical importance in litigation
concerning international transactions (more detail is available in Professor Briggs’ article on the subject in the Singapore Journal of Legal Studies, 2005, at page 189).
