Codifying private international law: making law dead but accessible?

The news that Professor Adrian Briggs has become an Honorary QC has encouraged me to republish my address 21 years ago  to a House of Lords Special Public Bills Committee, chaired by Lord Brightman.   In this bill the Law Commission, which I then chaired, was seeking to codify three elements of our private international law, of which the third (torts and delicts) was far the most controversial.  Part III of the Bill was strongly opposed by Lord Wilberforce, who was a member of the committee I was addressing, and also, for his part, by Adrian Briggs, then a brilliant young Oxford don, who opposed it just as strenuously on the grounds that it would make the teaching of private international law much less fun.

My talk illustrates the chasm that often exists between those who wish to make the law more accessible, so that lawyers up and down the country can advise their clients confidently without having to have ready access to a sophisticated law library or an unlimited budget with which they can accompany their clients on an exciting but expensive journey to the higher courts, and those who want the law to breathe as a living instrument, regardless of the fact that this approach makes the law less certain and less easy to apply on a day to day basis.

I see that I said at one point, after referring to Boys v Chaplin:

“There were no other rules of English private international law which could be looked up, still less were books reasonably handy for most practitioners to understand what Lord Wilberforce told them the courts must do. The relevant part of his speech in Boys v Chaplin is on pages 19 and 20 of Volume 1. He said that the courts had to identify the policy of the alternative rule, to inquire to what situations and with what contexts it was intended to apply, and to identify any interest the rule was intended to protect. This was very much the stuff for an All Souls seminar on the frontiers of liability in this field. But it was not a working statement of law which the average practitioner in Wigan or Inverness could use very easily in order to advise his clients what the law was. It is hardly surprising that only two cases reached the English courts in the 15 years up to 1984 when the possibility of this exception was even mentioned.”

I remember that on one occasion when I was presiding in the Court of Appeal after five law lords had made five different speeches on the vexed question whether a mother could recover damages for negligence for the birth of an unwanted child following a botched sterilisation operation, Jeremy Stuart-Smith QC, who appeared for the appellants, asked us to explain in intelligible language how the law now stood because the law lords were contradicting one another.  A practitioner’s nightmare, but an academic lawyer’s dream.  One of the five delinquents, Lord Steyn, later had the grace to apologise.

In my address I tried to articulate what I had learned from my common law Law   Commissioners, Jack Beatson and Andrew Burrows – I was phenomenally lucky in the company I kept in my days at the Law Commission – about the techniques of light touch codification, so that the law could be put back on the rails, while at the same time being given room to breathe.

I am relieved that although we took his toys away from Adrian Briggs on that occasion, he has still found enough  to play with to enable him to attain the giddy eminence of honorary silk…

 

 

The Private International Law (Miscellaneous Provisions) Bill

An opening statement to a House of Lords Special Public Bills Committee on 16 January 1995.

I am grateful to your Lordships for giving me this opportunity to address you before you start to hear evidence on the Bill on Wednesday. I am speaking on behalf of my own Commission, but I believe the Scottish Law Commission would agree with everything I am going to say. What I want to do is to say something to you about how the work represented by this Bill fits into the general pattern of the work which Parliament has asked us to do on their behalf. I will then talk to you about each Part of the Bill, and mostly, of course, about Part III. In relation to that part I will describe to you the nature of the issues which confronted the Commissions’ Joint Working Party between 1979 and 1984; the possible options for change (or no change) on which the Commissions invited responses on consultation,; the solution the Commissions agreed upon in their 1990 report; the changes the Government has made in the Bill presented to your Lordships; and the effect of any cases decided in the courts since 1984. And I will end by saying a little bit about the very serious contemporary problems in Scots law, which the Lord Chancellor will know all about.

I have prepared two volumes of papers to support what I have to say. Volume 1 is entirely my own words. In it I have put together a number of papers of different kinds to illustrate some of the points I will be making. I hope your Lordships will find it convenient to have these at hand throughout the hearing of the evidence, because they include most of the key texts which are mentioned by different people. Volume 2 is much more technical. This constitutes the source material from which I have derived most of the summary of the relevant principles of private international law in 16 different overseas countries which appears on pages 5 to 13 of Volume 1. The early pages were prepared by the British Institute of International and Comparative Law over the last two weeks, and the Commission is very grateful to the Institute for their help. We invited them to look at the Appendix of our 1984 Working Paper, which contains a summary of the relevant law in 13 European countries. Lawyers who know the laws of seven of those countries (Germany was in two parts in 1984) have kindly brought us up to date there – France, Germany, Italy, the Netherlands, Austria and Switzerland – and have added two further countries, Belgium and Denmark. I have also included in Volume 1 a summary of the 1984 position in Spain, Portugal, Poland and Hungary. Real enthusiasts will also find the 1984 position in Luxembourg, Turkey and the then Yugoslavia at the back of the Working Paper.

The other part of Volume 2 consists of a fairly brief note, prepared by a research assistant on the staff of my Commission, on what appears to be the present position in four common law countries, the United States, Canada, Australia and New Zealand. So far as I know, all this material is accurate, but it is inevitably in summary form. The only purpose of including it is to give your Lordships a snapshot view of the laws in most of the major countries whose laws are based on what were originally European systems of law. I will refer to this evidence again quite briefly in due course. At present all I will say is that no non-Commonwealth country possesses anything resembling our English rule that the law of the forum – the home court – must be applied in all but exceptional cases.

First, then, I will put the Bill in its context. As your Lordships know, the two Committees were founded in 1965 to keep the whole of the law of our two countries under review. I have included the relevant wording of section 3(1) of the 1965 Act at the start of Volume1. The key words are “systematic development and reform”, “codification”, and “simplification and modernisation”. One of our working tools is our programmes, and you will see that Parliament has told us to prepare programmes from time to time for the Lord Chancellor’s approval for the examination of different branches of the law with a view to reform.

So far as my Commission is concerned, Private International Law came onto one of our programmes in 1973. The Scottish Law Commission had a similar programme item. You will see on page 1 that we were to take under review, when considered appropriate, the rules of Private International Law relating to obligations, property, family relationships and any other matter which might be the subject of negotiations or agreements between Member States of the EEC or the Hague Conference. We were to do this work in co-operation with the Scottish Law Commission, acting through a joint Working Party. The only reason why Part 1 of this Bill does not apply to Scotland is that Scots law does not have the same problem that we have with our Judgments Act.

This Bill comes to you as almost the last flowering of work done under this programme item. On Wednesday you will hear evidence from Dr Peter North, the Vice-Chancellor of Oxford University. Dr North is the author of one of our leading textbooks on Private International Law, and he was one of the five English Law Commissioners between 1978 and 1984, when he led our work in this field. The English private international law I learned in the 1960s was very largely common law. Today, with the exception of the law of tort and parts of our property law, it is virtually all in statute form, thanks largely to the very distinguished joint team of English and Scots lawyers in the 1970s and 1980s, and if this Bill is passed the time will be close when all this part of our law could be in a single statute. Your Lordships now have before you a Bill based on three of the last four joint Commission reports under these programme items, leaving only our important 1987 report on the law on domicile behind.

I have spoken of the common law, statute law and codification. I must tell your Lordships a little bit more about all this. Much of the stimulating lifeblood of our English law, in contrast to the laws of civil law countries, has been derived from the development of the principles of the common law and equity by English judges over successive centuries. Where the law is in a state of development, to accommodate new thinking or new social attitudes, experience has shown that it is often much wiser for Parliament to leave it to the judges, and not fetter them by the restrictions of statutory language which might make further beneficial development impossible. In other cases Parliament may make a minimalist statutory intervention to get rid of blockages which are restricting the judges’ ability to develop and improve the law on a case by case basis.

On the other hand what is one of the greatest strengths of our law is also in some respects one of our greatest weaknesses. Certainty and accessibility are two of the hallmarks of a high quality system of law, and if complicated areas of law are being developed on a case by case basis, it is very difficult for ordinary people and ordinary practitioners, let alone the courts, to have access to the law they need in an efficient and economical way. Your Lordships will recall the evidence of Professor Anton, one of the leading Scottish authorities on Private International Law, who has referred your Lordships, in relation to the rules of private international law for tort and delict, to the needs of solicitors outside the charmed triangle of London, Oxford and Cambridge who have no access to legal materials which would enable them to identify, even in a simplistic way, the content of potentially applicable foreign legal rules.

Part of the accumulated wisdom of the two Commissions is this ability to recognise the areas where the law is so problematic that statutory intervention is necessary to put it on clear, principled, accessible lines, and the areas where it is very much better that Parliament should leave well alone. There will always be judges and scholars in every field of law who prefer Parliament to stay out of things, almost as a matter of religious belief. About ten years ago, in his Maccabean lecture, Lord Goff of Chieveley said that the problem with codification is that it represents a still photograph of the law as it is (or how people would like it to be) at a given moment in time. The object of the photograph is not then allowed to develop and grow afterwards: in other words, the law is frozen. In 1962 I was doing a job of work as a Bar student for Lord Denning, and I came to your Lordships’ House to see him on the day that the late Lord Birkett made that moving speech, a few days before he died, in defence of Ullswater. He said this about the Manchester Corporation’s plan to turn a living lake into a reservoir:

“We have only to look at Thirlmere as it is today; we have only to look at Haweswater as it is today. Both lovely lakes have been murdered. They are now dead water reservoirs: no human life; sterile shores.

Under this Bill it can be taken for a certainty… that these lovely shores of Ullswater, where people picnic, where the ponies come down, will be just sterile shores like one sees at Thirlmere.”

Proposals to codify the common law have almost always raised equally strong passions, and this one is no exception. One of the tasks which your Lordships will have is to determine whether the two Commissions’ unanimous judgment that the common law needs to be replaced by statute in the field covered by Part III of this Bill should be supported by Parliament.

Next Monday, your Lordships will be hearing evidence from Professor Jack Beatson. He was the English Law Commissioner responsible for completing the work on tort/delict on which Part III of this Bill is largely based. Throughout his five years as our common law Commissioner he was constantly having to make fine judgements as to whether statutory intervention was needed in areas of law now covered by the common law. Under his guidance the Commission very often had to steer a difficult course between the competing demands of certainty and accessibility on the one hand and the need for an immature part of the law to develop in an unrestricted way on the other. He will be able to talk on this subject far more authoritatively than I can.

Your Lordships will know that a number of distinguished and experienced judges or former judges are in favour of leaving the area covered by Part III of the Bill to judicial development. Against them, if this is a numbers game, are Lord Justice Staughton, who has immense experience of commercial law, and the English and Scottish judges who were connected with this project since 1984; two of them signed the eventual report. Lord Justice (Roger) Parker also supported a solution along the lines of the Commission’s eventual proposals on consultation in 1985. I would particularly invite your Lordships to bear in mind the need for the law to be usable as an ordinary working tool. Will the average lawyer handling his clients’ affairs in Wigan or Inverness find the proposals in our Bill easier to follow when he has to advise his clients on the law to be applied, and will they leave the law on a sounder and more principled basis than it is at present? I will come in due course to the questions your Lordships will have to address on Part III of the Bill. For the moment I want to repeat that difficult questions like this are the stock in trade of the work of the ten Law Commissioners. Sometimes, we recommend the intervention of statute. If we have any doubts, we will counsel that the common law should be left alone.

That is all I wanted to say by way of introduction. I do not have much to say about Parts I and II of the Bill. As to Part I, your Lordships will have seen that tis change has been welcomed on all sides. Most of this October 1983 report was implemented by rule changes a very long time ago, and we hope that the availability of the Jellicoe procedures will mean that a delay of over 11 years on a useful proposal like this will never occur again. Your Lordships will have seen Lord Justice Staughton’s evidence about the injustice which Parliament’s failure to implement this proposal caused in a case he decided in September 1987. The English judgment interest rate then was 15 per cent, and the going US rate was, he thought, 6 per cent. The difference is 9%, and 9% of $300 million is $27 million a year. It is hardly surprising that the defendants thought that they could not risk an appeal. My Commission has no quarrel with the Government’s decision that there should be a fixed rate of interest on the judgment at the appropriate rate, rather than a variable rate, pending any overall change in the arrangements or domestic judgments along the lines suggested by Lord Justice Staughton. I also see no reason to adopt the suggestion[1] that the appropriate overseas rate should be changed to the UK rate when the time comes to enforce the judgment. If the rates are out of kilter, the plaintiff should receive interest at the appropriate rate until he is paid.

I also do not want to say much about Part II. This is based on a 1985 report. As Your Lordships will know, since 1983[2] the law has been that a man domiciled here who goes to Karachi or Lahore to get married can contract a marriage which is recognised by English law because his wife is not allowed to take more than one husband under Muslim law. On the other hand, if a woman domiciled here goes out there to get married, in the eyes of English law this is a void marriage because it is potentially polygamous: under Muslim law her husband may take more than one wife. When we deplored the delay to this Bill in our last Annual Report, we knew of the number of Muslim women domiciled here who go abroad to get married, and the great potential hardship being caused to them because this uncontroversial change in the law was being delayed year after year. Dr North will be able to answer the technical points raised by Professor Lipstein. Dr Eric Clive, who will give evidence on behalf of the Scottish Law Commission on Thursday, will be able to confirm that because Scots law on capacity to enter into a marriage in polygamous form is still undeveloped, it is still not considered necessary to make the clause relating to Scotland retrospective.

I now come to Part III. The Commissions first became involved in this topic as a result of proposals for an EEC Convention on the law applicable to both contractual and non-contractual obligations. In March 1978 it was decided to confine this convention to contractual obligations only, but it was agreed that negotiations should be resumed on non-contractual obligations later, with a view to preparing a separate convention on that subject. In 1979 the two Commissions set up a Joint Working Party to provide advice to the UK delegation which would be concerned with any such negotiations, and also to consider the reform of the choice of law rules in tort and delict at home. The formulation of this second EEC Convention was then called off, at any rate for the time being, and the Working Party therefore confined its attentions to questions of possible law reform in this area on the domestic front.

On page 2 of Volume 1 you will see the membership of this joint Working Party in 1984. It was chaired by Professor Aubrey Diamond, and it contained the editors of four leading textbooks on the subject on each side of the border. It also contained Lord Maxwell, who had been a judge in Scotland for over ten years, and two other Law Commissioners with experience of the law in practice, Mr Bertram and Mr Davenport. Its Working Paper, which ran to 293 pages, was not surprisingly an intellectual tour de force.

On pages 3 and 4 of Volume 1 you will find the state of the law in each country, as described by the Working Party in 1984, plus the briefest of notes on the recent Privy Council case. Your Lordships will see that the relevant law is slightly different in each country. In England things are dominated by the law of the forum, our own English law of tort, which we have to apply in every tort case with an international aspect apart from the most exceptional. In this, as I have already said, we are virtually alone in the world (apart from the Commonwealth countries which still follow us). If we find that the plaintiff would have succeeded in England but that he would not have succeeded in the place where the tort was committed, then except in the most exceptional of cases the plaintiff will go away empty-handed. This “double whammy” in favour of defendants, which is called the “double actionability “ rule, is also virtually unique in systems of law which have a European foundation.

The Working Paper observes that since a House of Lords decision in 1969[3] it had generally been assumed that there may be exceptional cases in which the double actionability rules are not followed, in whole or in part, but there had been no clear indication of the principles which would be followed in order to identify such cases. Only one law lord out of the five, Lord Wilberforce, had referred to the subject in detail, and he said that the general rule would apply unless clear and satisfying grounds are shown why it should be departed from, and what solution, derived from what other rule, should be preferred. There were no other rules of English private international law which could be looked up, still less were books reasonably handy for most practitioners to understand what Lord Wilberforce told them the courts must do. The relevant part of his speech in Boys v Chaplin is on pages 19 and 20 of Volume 1. He said that the courts had to identify the policy of the alternative rule, to inquire to what situations and with what contexts it was intended to apply, and to identify any interest the rule was intended to protect. This was very much the stuff for an All Souls seminar on the frontiers of liability in this field. But it was not a working statement of law which the average practitioner in Wigan or Inverness could use very easily in order to advise his clients what the law was. It is hardly surprising that only two cases reached the English courts in the 15 years up to 1984 when the possibility of this exception was even mentioned.

In Scotland, the double actionability rule is the other way round, and even more constrained. The Scots courts give predominance to the law of the place of the tort in determining the rights of the parties, but the pursuer can only succeed to the extent that the specific heads of damage he seeks are recoverable both under that law and also under Scots law, and that the same type of claim is also available under Scots law. That was the decision of the Inner House of the Court of Session, composed of seven judges, nearly fifty years ago, and it has remained the law of Scotland to this day, without any hint of any exceptions.

The Working Party also looked at the law in European countries, and it is all set out in the Appendix to that paper: we have tried to bring it up to date for the benefit of your Lordships. On pages 5 to 8 of Volume I I have picked out in bold print the governing rule in these countries, and almost without exception they apply the law of the place of the tort, with occasional variations. Sometimes, but not invariably, the law of the forum is employed as between two nationals or two people domiciled in the home state who are involved on either side of a tort committed abroad, as in a car accident between two German drivers on the roads of France.

The Working Party also referred from time to time to United States and Commonwealth cases. Your Lordships will see from pages 11 to 13 that the courts of Canada and New Zealand apply our double actionability rule. In Australia, a federal country with a greater incidence of inter-state torts, there has been a lot of recent litigation about the rule, and a recommendation from their Law Reform Commission urging reform along the same sort of lines as Part III of the present Bill. In the United States the position has been quite different. They started with a fairly rigid rule based on the law of the place of the tort, and ran into all sorts of difficulties with it. There is a huge amount of American jurisprudence on the subject, because inter-state torts of course occur very frequently, and the American Law Institute tried to bring order out of chaos in 1968 by suggesting a reformulation of the governing principles. This is on pages 9 and 10 of Volume I, and your Lordships will see that they favoured an approach whereby the rights and liabilities of the parties with respect to an issue in tort should be determined by the local law of the state which with regard to that issue has the most significant relationship with the parties under principles stated elsewhere in the Restatement. It was this text that Lord Wilberforce had in mind in 1969, and Lord Hodson also referred to it, but none of the other law lords adopted what they said, and the principles set out there have never been adopted in any English case. Your Lordships will see on pages 9 to 11 of Volume I the way in which the law has been moving in leading states like New York, California, Texas and Louisiana. Of course, the law in each of these states began from a completely different starting point to the law in England, which has always been fairly rigid based on the application of English law as the law of the forum.

By chance I have at home the Inns of Court Law School Manual for Bar students, published in 1989. In the law of tort in Private International Law it says this:

“This is another important, although rather confusing, area of conflicts law. As we tend to go abroad more and more these days and, alas, injure ourselves more often, this is a developing area of the law.”

It then refers to what Lord Wilberforce said in Boys v Chaplin and goes on:

“However as there is little case law it is difficult to predict when the general rule will be displaced.”

All the help it could give students was from two cases, one from Queensland and one from Victoria, plus what it called “suggestions” by two English textbook writers. For rules to clarify the locus, or place, of the tort, it said this:

“It is sometimes difficult to tell where a tort is committed, eg a problem may arise where a negligent act is committed in country A and damage sustained in country B. Case law is very sparse for choice of law rules in tort but some help may be gained from jurisdictional cases under the old Order 11 of the Rules of the Supreme Court.”

For your Lordships’ convenience I have set out the principles governing jurisdictional issues, which are different from choice of law issues, on pages 26 and 27 of Volume I, since some of the witnesses refer to them.

For the importance of this topic I would refer your Lordships to something written by the late Dr John Morris in the 1984 edition of his student text book, a companion book to Dicey and Morris:

“Just as the law of contract responded to the pressures of international trade in the 19th century, so in the 20th century the law of torts has responded to the pressures of the technological revolution as applied to the manufacture and distribution of products and to the means of transport and communications. Most of these pressures operate regardless of national or other frontiers. Dangerous drugs can cause babies to be born without arms or legs thousands of miles from the laboratory where the drugs were made. Unfair competition is no longer confined to a single country. Every year English motor-cars visit the continent of Europe in their thousands; accidents occur; people are injured or killed. English television aerials receive programmes from continental Europe, and even (with the aid of satellites in space) from America and Australia; private reputations sometimes suffer. For all these reasons the conflict of laws can no longer rest content with solutions designed for 19th century conditions.”

Five years later Bar students were being given advice which was as vague as what I have just quoted to your Lordships. Why was English law in this state?

[There followed an analysis of relevant English case-law, from The Halley[4] onwards, a description of the different models for law reform which had been debated by the Working Party, and a discussion of a number of other relevant issues. My address ended in these terms:]

Like the Lord Chancellor, I have no idea what would happen if Parliament left this intensely complicated and uncertain problem to judicial development. The result of contested litigation depends so much on the issues at stake and the quality of the arguments and the advocates deploying them in a single case. In 1969 two out of five law lords preferred to apply a rule based on the latest model to hand, which was the 1968 American Restatement Second. If the matter is to be left at large to English law lords, who are of course free to depart from their own earlier decisions if they wish, there can be no certainty that counsel might not persuade them to prefer a different formula to govern the exception, even if they were to leave the main rule in its present form. They might, for instance, wish to turn to English scholarship, as evidenced in the papers before your Lordships, rather than American scholarship, based on American principles of law and American needs, for a solution, if Parliament is willing to allow them to indulge in further judicial legislation. Certainly Dr Morris’s formula[5] might come under very sustained attack, if the amounts at stake were large enough and counsel had mastered all the different arguments set out in the Joint Working Paper in favour of different solutions to the one preferred by two of the law lords in 1969.

[There followed a reference to the even more serious situation affecting Scots law. I finished by saying:]

All I will say is that serious uncertainty will remain north of the border if Part III of the Bill is not enacted in some form or other, and nobody can have any idea how many claims have had to be abandoned and not litigated because Sots law is so clear and so unjust.

I will end by saying that the Commissions believe that their central proposals will greatly enhance our law, by introducing a clear, workable, fair, comprehensive scheme, which does not have to depend on the results of very high level and very expensive litigation in order to ascertain the governing principles. It has been welcomed by the English Bar and by the Law Society in both countries, and the Commission hopes that after your Lordships have considered all the evidence you will be disposed to give it a similar welcome.

 

[1]             By Ms Pippa Rogerson.

[2]             See Hussain v Hussain [1983] Fam 26.

[3]             Boys v Chaplin [1971] AC 356.

[4]             (1868) LR 2 PC 193.

[5]             I had earlier referred to the restatement of the governing rule which, it was believed, had appeared in every edition of Dicey and Morris since Boys v Chaplin was decided. It contained an apparently authoritative proposition of law which was not, in fact, what was decided in that case.

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