ASSIGNMENT

PRIVATE INTERNATIONAL LAW

Topic: Phillips v. Eyre

SUBMITTED BY,

AFZAL M NAZEER

ROLL NO: 5

9TH SEM BALLB

INTRODUCTION

The problem of discerning the appropriate applicable law in the case of cross-border torts is
extremely complicated. The reason behind this is that at a very basic level of the facts of a
tort related claim there are multiple connecting factors such as the place of the tort, the
nationality and domicile of the parties, etc. To add to this basic concern, in the case of cross
border torts an added problem of determining the actual jurisdiction where the tort was
committed arises. In addition there are also a wide variety of tortious issues that may arise –
limitation, damages, etc. The question that then arises is whether the same law should govern
all of these issues. It is important to note that there are also different types of tort –
negligence, nuisance, defamation, etc. This then begs the question, should the same rule in
determining the applicable laws apply regardless of the type of tort? An additional issue to
consider is that application of a foreign law may lead to liability being imposed for torts that
are unknown in the domestic jurisdiction.1

An expansive set of solutions has been used by various nations in order to deal with this issue
and even among these solutions there has been considerable evolution over a period of time.
This paper discusses the various “choice of law rules” followed across jurisdictions – lex fori,
lex loci delicti, double actionability, etc. –focusing specifically on the position in England as
well as in India.

1
G.C. Cheshire, P.M. North & J.J. Fawcett, Cheshire and North’s Private International Law 605 (13 ed. 1999).
PHILLIPS V. EYRE

In the case of a Private International Law dispute, the court where the claim has been
brought, after deciding on the matter of jurisdiction – whether it has the power to hear the
case – must determine “which law” to apply in resolving the dispute. This process of electing
the applicable law is known as “Choice of Law.” The choice of law is not encompassing of
the case as a whole, i.e. choice of law does not function as “one case one law.” Each legal
issue in a case must be decided in accordance to the appropriate law and therefore choice of
law in a dispute is on the basis of the legal issues brought up in the claim; and it is important
to note that there can be any number of issues in a claim. A conflict of laws in choice of law
arises when there is more than one “connecting factor” (the point of contact, which matters
the most or is the most relevant) involved. In choosing between two laws, the intensity and
nature of the link between the law and the case plays a huge role. In determining the intensity
and nature of the relationship multiple factors such as domicile, nationality, place of incident,
can play a role. And sometimes, many of these considerations themselves have different
meanings under different legal systems.2 Therefore in order to deal with this extensive
ambiguity, certain sets of rules – lex fori, lex loci, lex causae, etc., – are applied in order to
determine the applicable law. These rules are referred to as “choice of law rules.” 3

Phillips v Eyre (1870) LR 6 QB 1 is a famous English decision on the conflict of laws in tort.
The Court developed a two limbed test for determining whether a tort occurring outside of
the court's jurisdiction can be actionable. In time this came to be referred to as the "dual-
actionability test" (or "double actionability test").

Choice Of Law In Cross Border Tort Disputes

Torts as commonly understood in Common law are civil wrongs against an individual, his
property, and/or reputation. This includes negligence, trespass, defamation, etc. In certain
instances the act may qualify as both a tort and a crime at the same time, for example assault.
A tortious act may also arise from a contractual background, in which case the injured party
is given the choice of suing either for breach of contract or damages for tort. The option of
claiming relief either in contract or tort is offered in English law4 as well as India.5

2
F.E Noronha, Private International Law In India 68-69 (1 ed. 2010).
3
R. Hayward & A. J. Mayss, Conflict of Laws 1 (4 ed. 2006).
4
J. Chitty & H. G Beale, Chitty On Contracts: General Principles 142 (1 ed.2012).
5
Manju Bhatia v. New Delhi Municipal Council, AIR 1998 SC 223.
In the case of a tort the most basic principle in the case of the law to be applied is lex loci
delicti – the law of the place where the tortious activity was committed.6 However, this
clarity is available only when the tort is domestic in nature and there is not conflict of laws
involved. There are newer more contemporary approaches adopted by various jurisdictions,
such as, the significant relationship rule,7 the governmental interest approach,8 and the
comparative impairment analysis approach.9 The most basic and chronologically the oldest
approach however, in the case of a tort or delict has always been lex loci delicti. The real
problem of choice of law arises in the case of cross border torts, i.e. with the arrival of a
foreign element. Two such scenarios are,
(a) when the act is committed in one country but the proceedings are brought forth in another;
(b) when the act is committed in one country but its effect is felt in another country.10
Now with the possibility of conflicting laws – in case
(a) the law of the forum where the claim is brought, i.e. lex fori, or the law of the forum
where the tort was committed, i.e. lex loci delicti; and in case
(b) the law of the forum where the tortious act was committed or the law of the place where
its effects were felt; the question that then arises is which of the competing laws must be
chosen and on what basis.
In order to solve this conflict in choice of law, in the case of cross border torts, the country
whose law will be chosen to solve the dispute is selected through application of the rules of
Private International Law.

Professor Hanford described the background to the case as follows:

In 1865 Edward John Eyre, the Governor of Jamaica, in the course of suppressing a revolt,
caused a leading activist to be tried and executed under martial law. Over the next three
years, a group of leading politicians and thinkers in England attempted to have Eyre
prosecuted for murder. When the criminal process failed, they attempted to have him sued for
trespass and false imprisonment. Though this case, Phillips v Eyre, was mainly concerned
with constitutional issues, Willes J laid down a rule for choice of law in tort which endured
for nearly a century before it was finally superseded.

6
Norris v. Taylor, 460 So. 2d 151 (1984, Supreme Court of Alabama).
7
Enron Wind Energy Sys. v. Marathon Elec. Mfg. Corp. (In Re Enron Corp.), 367 B.R. 384 (2007, he
U.S. Bankruptcy Court for the Southern District of New York).
8
District of Columbia v. Coleman, 667 A.2d 811 (1995, District of Columbia Court of Appeals).
9
Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976, Supreme Court of California).
10
A. M. Setalvad, Conflict of Laws 648 (1 ed.2007).
The particular activist concerned was one George William Gordon, a mixed-race member of
the local assembly. Bad blood existed between Eyre and Gordon before the rebellion. Having
had Gordon and William Bogle (the brother of Paul Bogle, the main leader in the revolt)
arrested on suspicion of treason, both were tried under martial law and then summarily
executed within two days. The entire suppression of the rebellion was undoubtedly extremely
violent. Some 439 people were killed by British forces, and a further 600 odd
were flogged and about 1000 houses burned down. Further there is evidence that some of the
British officers treated the task as "hunting sport".

Although most contemporary accounts seem to blame specific British military officers (under
the command of General Luke O'Connor) rather than Eyre, sensational reporting of both the
rebellion and its bloody suppression made Eyre a controversial figure in Britain. This came to
be known as the "Jamaica Question", which essentially boiled down to the question of
whether Eyre to be regarded as a hero who had fulfilled his duties as governor in suppressing
the rebellion and saving the white population of Jamaica from massacre, or a murderer who
should be prosecuted and held accountable for his crimes. Attempt to bring criminal
proceedings against Eyre failed, and so the various activists tried again bringing a civil
suit. [4] The activists referred to themselves as the "Jamaica Committee" and included liberal
thinkers like John Bright, Charles Buxton, Peter Alfred Taylor, John Stuart Mill, Thomas
Hughes, Charles Darwin, Thomas Huxley and Goldwin Smith.11

Judgment

Exceptionally the case was heard by a bench of six judges. Willes J gave the decision of the
court.

Curiously much of the case was dedicated not to the double actionability rule for which it
would later be cited, but to argument upon whether (i) a law which was retrospective in
nature was repugnant to natural justice, and (ii) whether the law was defective as a matter of
procedure as the Governor had passed a statute into law in respect of which he had a
direct conflict of interest. The findings on double actionability are relegated to a few short
passages near the end.

11
Phillips v Eyre - WikiMili, The Best Wikipedia Reader
The Court held that Eyre could not be sued for his conduct in Jamaica. In order to bring an
action the claimant must satisfy two requirements. First, the alleged conduct must "be of such
a character that it would have been actionable if it had been committed" in the local
jurisdiction. Second, "the act must not have been justifiable by the law of the place where it
was done." That is, it must be non-justifiable at the lex loci actus .

Due to the Act that Eyre passed just before leaving, the act was found to be justifiable by the
law of Jamaica and thus could not be actionable in England.

Significance

One of the especially contentious parts of Eyre's conduct was the fact that the law he enacted
was meant to cover all acts he had already done, making de facto powers de jure . There is a
presumption in English law against retrospective effect and Willes J, who gave the judgment,
noted that "The court will not ascribe retrospective force to new laws affecting rights unless
by express words or necessary implication that such was the intention of the legislature". It
was held in that case that Eyre's intention was clear.

The double actionability rule has now largely been abrogated in English law pursuant to
the Private International Law (Miscellaneous Provisions) Act 1995, although it still applies
to defamation claims. But the case remains good law in a number of other common law
jurisdictions.

The Position at Common Law

The settled position in Common law in the case of cross border torts, and as applicable to
defamation related claims even today is the “double actionability rule,” the foundation of
which rule was laid down in the case of Phillips v. Eyre.
Seven judges decided the case of Phillips v. Eyre. The brief facts of the case are: The
Governor of Jamaica, Edward Eyre declared marital rule in 1865 in order to put down an
insurrection. At this time Phillips was arrested at his house, handcuffed and put on a ship and
taken away. Post the suppression of the insurrection an act indemnifying the Governor of any
acts committed during the suppression was passed. Governor Eyre then returned to England.
Phillips had returned to England prior to the Governor. Phillips then brought a claim against
Eyre for assault and false imprisonment in an English Court. Eyre pleaded the act of the
Jamaican Parliament indemnifying him for anything done during the suppression period as a
defence. The Court of Exchequer Chamber sustained the defence, on the grounds that “the
civil liability arising out of a wrong derives its birth from the law of the place, and its
character is determined by that law.”
The basic rule in Phillips v. Eyre was laid down as follows:
“As a general rule, in order to found a suit in England for a wring alleged to have been
committed abroad, two conditions must be fulfilled. First, the wrong must be of such a
character that it would have been actionable if committed in England; …Secondly, the act
must not have been justifiable by the law of the place where it was done.”
The “Double Actionability Rule” was thus established as the general rule relating to cross
border torts. The two limbs of the rule are:
(a) The act must be “actionable” as a tort in England; and

(b) The act must be “non-justifiable” by the law of the place where it was committed.

The first limb originated in a case decided by the Privy Council two years prior to the case
of Phillips v. Eyre – The Halley case in 1868. In this case the Privy Council dismissed a claim
on an employer’s vicarious liability on the grounds that such a tort was not recognised in
English Law.
The second limb as initially formulated in the case of Phillips v. Eyre was overruled in the
case of Boys v. Chaplin. This was due to the interpretation of the term “non-justifiability” in
the case of Machado v. Fontes.12 In the Machado case it was held that even if the nature of
liability of the act committed was not civil in the lex loci delicti, it would satisfy the second
limb as formulated in the Phillips v. Eyre case. In the Machado case even criminal liability
under lex loci delicti was held to satisfy the “non-justifiability” requirement. This was later
overruled in the case of Boys v. Chaplin, where the term “non-justifiable” was replaced with
the term “actionable.” The Boys v. Chaplin case additionally established an exception to the
general rule of double actionability, by way of making the awarding of reliefs a procedural
matter. Thus the decision of the Boys v. Chaplin case ousted the law of the forum of place of
tort and restored the law of the forum as far as the awarding of damages and other reliefs was
concerned. This position was later clarified to some extent in the case of Red Sea Insurance
Co Ltd v. Bouygues where the general rule was held to be double actionability, providing for

12
Machado v. Fontes, 2 Q.B. 231 (1987, Queen’s Bench).
an exception in appropriate cases, where the plaintiff could rely on either lex fori or lex loci
delicti individually for his or her claim to be actionable.

Position In India

The Indian position on choice of law rules in the case of cross border torts is in the early
stages of development. There seem to be only two decisions on the matter. For the most part,
Indian jurisprudence on the matter follows the early English Court decisions, prior to the
engrafting of exceptions to the “double actionability” rule by the English Courts.

The first decision on the matter is of the Madras High Court.13 The court was dealing with a
claim of defamation. The facts of the case are: The then Raja of Cochin (which was at the
time an independent Indian State), sent a communication to the plaintiff excommunicating
him from his caste. This communication was then sent to British India. The Madras High
Court applying the “double actionability” rule dismissed the claim stating that as the
communication was from a superior to a subordinate with no trace of malice, the defence of
qualified privilege would apply thus not giving rise to civil liability under the laws of the
State of Cochin.
The second case is that of The Kotah Transport Ltd. V. The Jhalawar Bus Service Ltd.14 In
this case the plaintiff filed for damages for injury caused due to rash and negligent driving by
the defendant’s driver. The accident took place in Jhalawar, and the action was brought in
Kotah; both these places were then independent Indian States. The court found for the
plaintiff as there was nothing in the law of the state of Jhalawar that justified his actions, and
the act was a tort under the laws of the state of Kotah, and thus the requirements of “double
actionability” was satisfied.

13
Govindan Nair v Achuta Menon, (1915) I.L.R. 39 Mad 433.
14
The Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd., A.I.R.1960 Raj. 224
CONCLUSION

In conclusion as far as choice of law in the matter of cross border torts is concerned, the real
problem is not really what theory to apply – lex fori, lex loci delicti, or proper law – but how
to apply the theory in such a way that it provide certainty and is still flexible enough to
accommodate complex cases.
As far as India is concerned, our courts are yet to develop a concrete position on the matter. It
would be advantageous if they could evolve a rule independent from those already in place,
by adopting the best of both Civil and Common law, i.e. a flexible version of lex loci
delicti akin to the proper law or social environment theory.
Bibliography

1. F.E Noronha, Private International Law In India 68-69 (1 ed. 2010).

2. G.C. Cheshire, P.M. North & J.J. Fawcett, Cheshire and North’s Private International
Law 605 (13 ed. 1999).
3. Phillips v Eyre - WikiMili, The Best Wikipedia Reader.
4. OGBOYE & YEKINI: Phillips v Eyre and its Application to Multi-State Torts in
Nigeria: A Critique.