#10016 - Substance And Procedure - Conflict of Laws

SUBSTANCE AND PROCEDURE

OPENING

1. Generally, substance governed by lex causae, procedure governed by lex fori

2. Dicey, Morris and Collins – procedure governed by Lex fori means English domestic law

3. Pfeiffer (High Court of Australia) – issues of substance are those relating to the ‘existence, extent or enforceability of the rights or duties of the parties’

4. Clarkson & Hill – procedure is rules of law, method of trial

5. Clarkson & Hill – the dividing line between procedure and substance isn’t always clear

6. Carruthers – English law, particularly where influenced by European developments, is now adopting a more balanced approach to what constitutes a substantive matter

HOW IT WORKS

1. Briggs – lex fori governs procedural issues, with the only reservation being that the legislative definition of ‘procedure’ in European Regulations may be rather different, and perhaps narrower, than the counterpart definition in the common law of private international law

HISTORY

1. Lorenzen – historically English lawyers gave the widest possible definition to procedure

2. Dicey, Morris and Collins – this is no longer true

COMPETENCY

1. Briggs - this is a procedural matter, however, it’ll be applied with a degree of flexibility, as demonstrated by:

2. Bumper Development v MPC (CA) – ruined Hindu temple which enjoyed legal personality under Indian law was recognised as competent to sue

3. Art 13 Rome 1 relevant?

TRIAL

1. Currently English law, including interim relief (unless legislations says otherwise) determines

2. Collins – argues that interim relief being governed by procedure is the main prize when issues of jurisdiction are fought

3. LIMITS TO INTERLOCUTORY ORDERS

1. Van Uden – worldwide freezing injunction should probably not be ordered unless English court seised of the substantive proceedings. This case also shows that court has discretion not to grant interlocutory reflief, even though Regulation might authorize it to

2. Allianz – English court can’t grant an anti-suit injunction, even on an

interlocutory basis and even though it might be thought of as a procedural order, where this would have the effect of interfering with the right and duty of a judge in another MS to apply the Regulation to the proceedings in his court

3. Owusu – English court can’t grant a stay of proceedings in favour of a court in a non-MS where the order means that it will, in effect, not exercise the jurisdiction which the Regulation confers upon it

EVIDENCE

1. Clarkson & Hill – traditionally all matters of evidence were procedural

2. Re Fuld’s Estate – under CL burden of proof was a matter for procedure BUT

3. Rome 1 and Rome II – both say that evidence and procedure excluded from their scope, but say that burden of proof and presumptions are governed by applicable law

• Rome I – Art 1(3) says evi and procedure excluded, Art 18 says burden of proof under applicable law

• Rome II – Art 1(3) says evi/procedure excluded, Art 22 says burden of proof under applicable law

4. Briggs – if English law requires evidence in writing and lex causae doesn’t, Briggs suggests there should be no reason why English evidence rules should apply

5. Yates v Thomson – admissibility of evidence by lex fori

6. Wall v Mutuelle (EWCA) [2014]

• the issue of which expert evidence the court should order should be determined by the lex fori (English law), but it was said (obiter) that the applicable law included judicial practices, conventions and guidelines, such as the tariffs for permanent aesthetic loss published by the Paris Court of Appeal

• so foreign damages tariffs apply in cross-border cases

ENFORCEMENT

1. Brussels I doesn’t affect rules of procedure of national law, save only that these may not be applied to the extent that they would jeopardize the practical effect of the Regulation

LIMITATION

1. Used to be procedural under common law until

2. Foreign Limitation Periods Act 1984 – this provided that where any matter is governed by the law of a foreign country, then that country’s law on limitation shall apply irrespective whether it classifies the rule as substantive or procedural except where it conflicts with public policy

3. Briggs – says that this doesn’t make limitation substantive, it provides a statutory rule which overrides the common law doctrine of characterization

4. Dicey, Morris and Collins – that the foreign limitation Periods Act includes both statutory and procedural law! Shows how they can blend (ie. England decides when limitation starts and foreign law decides when it ends)

REMEDIES

1. Traditionally the remedy is a matter of procedure, so whether specific performance, injunction etc applies

2. Flack v Holm (1820) – remedy is a matter of procedure for the lex fori BUT

3. Clarkson & Hill – modern approach is to limit procedure to matters which govern and regulate the mode and conduct of proceedings, so that this might not extend to remedies

4. Briggs – he suggests that English remedy will only be ordered where it dovetails with rights of lex causae for which they were claimed AS SHOWN BY:

5. Phrantzes v Argenti (CA) – English CA dismissed a claim brought by a Greek daughter seeking an order that her father constitute a dowry, as no English remedy corresponded to so foreign a right SO

6. GENERAL RULE:

1. Lex Fori grants remedies only where:

1. lex causae gives C some remedy similar in character to that granted in English proceedings AND

2. the English remedy must ‘harmonise with the right according to its nature and extent as fixed by the foreign law’

7. Briggs – suggests that Regulation 12 means that the lex causae now determines remedies, with as little contribution as possible from the lex fori

DAMAGES

1. ROME II – lex causae now governs assessment of damage for non-contractual obligations, except for defamation which thus means assessment by lex fori, which is from CL cases like:

2. Boys v Chaplin (HL) – the kind of loss for which damages are recoverable (ie. non-pecuniary pain and suffering) are governed by lex causae. But quantum of pain and suffering was procedure, so lex fori. Another way of putting this is that rights = causae, remedies = fori

3. Harding v Wealands – re-affirmed quantum point from Boys v Chaplin

4. Clarkson & Hill – remoteness of damages by lex causae

5. ROME I – seemingly says that assessment is by lex causae, but there is strange untested wording in Art 12(1)(c) about within the powers conferred by procedural law which is uncertain. Seemingly still lex causae though

CURRENCY OF JUDGMENT

1. Used to be that English procedural rule that courts could only ever give judgment in sterling UNTIL

2. Miliangos (HL) – decided that English court can give award in foreign currency. This reflected the fact that there was a period of instability with sterling which could cause unfairness to claimants and also endanger England as a center of commercial litigation

3. Briggs – this case highlights the flexibility of the courts – not as fixed rules about what’s procedural and what’s not as one might think

WHAT DO WE MEAN BY LEX FORI?

1. Briggs – even if procedure is governed by lex fori, the lex fori may contain rules of European law which alters the shape of MS’s procedural law. Briggs says it’s clear that this is happening:

1. ‘Service Regulation’ – supplements national law otherwise to be found in CPR

2. ‘Taking of Evidence Regulation’ supplements national law and contains a mechanism for obtaining evidence in other Member States for use in national proceedings

2. These two regulations highlight how EU legislation is bringing closer together rules on MS procedural laws. So even when we say lex fori, it would be a mistake to think we’re applying the law as derived by English bodies

3. CONTRAST – but then equally, even when lex causae applies, this can be modified by the...