ASSIGNMENT

PRIVATE INTERNATIONAL LAW

TOPIC : RULE IN PHILLIPS V. EYRE

SUBMITTED BY,
SREEDURGA M U
ROLL NO: 68
9TH SEM BALLB
TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………………… 2
FOREIGN TORTS..................................................................................................................... 3
PHILLIPS V. EYRE…………………………………………………………………………..3

FACTS .................................................................................................................................... 4
JUDGMENT ........................................................................................................................... 5
SIGNIFICANCE ..................................................................................................................... 5
CHOICE OF LAW ................................................................................................................. 6
CHOICE OF LAW IN CROSS BORDER TORT DISPUTES ............................................. 6
THEORIES RELATED TO CHOICE OF LAW IN THE CASE OF CROSS BORDER
TORT DISPUTES .................................................................................................................. 8
THE LEX FORI THEORY .................................................................................................. 8
THE LEX LOCI DELICTI THEORY .................................................................................. 9
THE PROPER LAW OR SOCIAL ENVIRONMENT THEORY ........................................ 10
POSITION IN ENGLAND .................................................................................................... 10
POSITION IN INDIA .......................................................................................................... 12
CONCLUSION ........................................................................................................................ 13
BIBLIOGRAPHY……………………………………………………………………………14

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INTRODUCTION
Choice of jurisdiction and applicable law are two questions that usually confront both
litigants and the courts. Both have different rules guiding their application. What determines
the jurisdiction of a court is different from what informs which law is applicable to a matter.
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.
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.This is what is known as the rule in Phillips v Eyre.

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FOREIGN TORTS
Torts committed abroad have always been triable in English Courts, provided they expressly
fulfilled the following conditions:

1. The wrong must be of such a character that it would have been actionable if committed in
this country.1
2. The act must not have been justifiable by the law of the place where it was committed.2 It
is not necessary that the wrong should have been actionable where committed ; it is
sufficient if it was unlawful.
3. The act complained of must not be a tort of a purely local nature, such as a trespass to, or
ouster from, land.3, or a nuisance affecting hereditaments.
No action will lie in England for an act committed in a foreign country if it either was lawful
by the law of that country at the time of its commission4, or was excusable, or was
subsequently legitimized by virtue of ex post facto legislation in such country. 5

Though the act complained of should be wrongful both by the law of England and by the law
of the country where it was committed, yet it is not necessary that it should involve liability
to civil proceedings in the foreign country. Unless the act was innocent or justifiable by the
law of the foreign country it was immaterial to consider what the remedy might be by the law
of that country. Again, it is no defence to an action for a tort committed in a foreign country
that by the law of that country no action lies till the defendant has been dealt with criminally,
for that is a mere matter of procedure.6

Phillips v. Eyre and conflict of laws

Phillips v Eyre7 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").

1
Carr v. Francis & Co. 52 Wn. App. 880, 765 P.2d 40.
2
Phillips v. Eyre, (1870) LR 6 QB 1
3
British South African Co. v. The Companhia de Mocambique, [1893] A.C. 602.
4
Blad v. Bamfield, (1674) 3 Swans 604.
5
Supra n. 2.
6
Scott v. Seymour, 105 S.C. 42 89 S.E. 398.
7
Supra N. 2.

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Facts

Edward John Eyre had been the governor of Jamaica during the Morant Bay rebellion. As
governor he ordered a forceful response, which led to the deaths of numerous Jamaicans, and
the arrest and summary execution of various political figures whom Eyre believed to be
instigators of the uprising. At the end of his term as governor, the colonial assembly had
passed an Act of Indemnity covering all acts done in good faith to suppress the rebellion after
the proclamation of martial law.

When he returned to England, several Jamaicans sued him for trespass to the person and false
imprisonment in the Courts of England.

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.

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".8

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
8
Handford, Peter. "Edward John Eyre and the Conflict of Laws" (PDF). Melbourne University Law Review.
[2008]: 822–860. Archived from the original (PDF) on 5 July 2015. Retrieved 5 July 2015.

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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. 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.

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.

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

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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.

Choice Of Law

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.9 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.” 10

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
9
F.E Noronha, Private International Law In India 68-69 (1 ed. 2010).
10
R. Hayward & A. J. Mayss, Conflict of Laws 1 (4 ed. 2006).

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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 law11 as well as India.12
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.13 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,14 the governmental interest approach,15 and the
comparative impairment analysis approach.16 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.17
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. There are three main theories in relation to choice of law in cross
border tort cases, they are:18
 The lex fori,
 The lex loci delicti, and
 The proper law or social environment theory.

11
J. Chitty & H. G Beale, Chitty On Contracts: General Principles 142 (1 ed.2012).
12
Manju Bhatia v. New Delhi Municipal Council, AIR 1998 SC 223.
13
Norris v. Taylor, 460 So. 2d 151 (1984, Supreme Court of Alabama).
14
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).
15
District of Columbia v. Coleman, 667 A.2d 811 (1995, District of Columbia Court of Appeals).
16
Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976, Supreme Court of California).
17
A. M. Setalvad, Conflict of Laws 648 (1 ed.2007).
18
P. Diwan & P. Diwan, Private International Law: Indian and English 551 (4 ed.1998).

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Theories Related To Choice Of Law In The Case Of Cross Border Tort
Disputes

The Lex Fori Theory

According to this approach the applicable is the law of the forum where the claim has been
brought. The application of lex fori is rather simplistic and straightforward as there is no need
to determine where the tortious activity occurred, or to prove that it was in fact a tort in the
law of the country where the act occurred.19 On the other hand this could work to the
disadvantage of the defendant as the plaintiff could then indulge in forum shopping –
choosing a forum that is most favourable to him. The defendant may become liable for an act,
which may amount to a tort in the forum state – lex fori – but not in the place where it was
committed – lex loci delicti20. Contrarily, if the act committed is not a tort under lex fori, but
it is under lex loci delicti – the plaintiff does not suffer as even if he cannot successfully bring
a claim in the forum state, he can bring it in the place where the act has been committed.21
Friedrich Karl von Savigny an advocate of the lex fori method proposed that tortious liability
is comparable to criminal liability and thus is closely related to the public policy of the forum
state and therefore should be governed by lex fori.22 This view is criticised by C. F. Forsyth,
who says that Savigny’s view opinion has been discredited to a large extent, as there is a clear
demarcation between crime and tort today. Forsyth also goes on to criticize the lex
fori approach for being “fickle” as it is only established “ex post facto” once the plaintiff
decides where he wishes to sue.23
There are barely any proponents of the application of the lex fori theory in the contemporary
world24 as even with its simplicity, if it were applied as a general rule, it would result in
arbitrariness and unfair decisions. Thus in a quest for a more fair basis for choice of law, we
move to the lex loci delicti theory.

19
Supra n. 18, at 649.
20
Supra 18, at 648, 649; L.A. Collins, A.V. Dicey & J.H.C. Morris, Dicey and Morris on The Conflict of
Laws 913 (12 ed.1993); Hayward & Mayss, supra iii, at 131.
21
Collins, Dicey & Morris, supra 21, at 913.
22
F. K. Savigny & W Guthrie, Private International Law 205-206 (1 ed.1869).
23
C. F Forsyth, Private International Law: The Modern Roman-Dutch Law Including The Jurisdiction of The
Supreme Court 304 (3 ed. 1996).
24
Supra n. 19, at 552.

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The Lex Loci Delicti Theory

In accordance to this theory the applicable law in the case of a cross border tort ought to be
the law of the place where the tortious act has been committed. Willis, J., observed in
Phillips v. Eyre 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.”25 Similarly, Westlake has also opined
on the matter that in the event of tortious act that disrupts the social order of any country, it is
the law of that country where the act has been committed that must then apply as it would be
the best authority of the matter.26
The problem with the lex loci regime arises when the facts amounting to the tortious act take
place in more than one country, i.e. the act is committed in one country and the injury is felt
in another. It then becomes hard to decide which country is then the loci delicti – the place
where the act commenced or the place where the effect of the injury was felt.27 This can be
dealt with to a certain extent if one adopts the view that the lex loci delicti theory is based on
the “vested rights doctrine.” In which case, a plaintiff’s claim is derived from the law of the
jurisdiction where the injury occurred and depends entirely upon such law for its
existence. Thus, when the place where the act commenced or the place where the effect of
the injury was felt is two different states, the substantive law of the state where the injury
occurs applies.28
Additionally there can also be problems in applying this theory when the parties have almost
no connection to the place where the tort occurred, i.e. the lex loci delicti may be entirely
coincidental and by chance. For example a couple living in state X are on vacation in state Y,
there is an accident while they are driving in state Y and the wife is injured. She wants to sue
her husband. The application of the laws of state Y in such a case would merely be by chance
and in the event that the laws of state Y do not support her claim (but state X’s laws do) this
would be highly unfair and application of state Y’s laws will be arbitrary.
The real problem with the lex loci delicti theory is not that is inherently unfair and arbitrary,
but that it is not flexible and cannot address every single question in complex

25
Phillips v Eyre, 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
26
J. Westlake, A Treatise on Private International Law, or, The Conflict of Laws with Principal Reference to its
Practice in The English and Other Cognate Systems of Jurisprudence 282 (7 ed.1858).
27
See W. W. Cook, The Logical and Legal Bases of The Conflict of Laws 345 (2 ed.1942); See also W. W.
Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale Law Journal 457, 466 (1924)
28
Myers v. Hayes International Corp., 701 F. Supp. 618 (1988, United States District Court Middle
District of Tennessee).

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situations.29 The possibility of unfairness only arises in complex situations, like in the
instance of the lex loci delicti being entirely fortuitous. In order to deal with this inefficiency
of the lex loci delicti theory there was a move towards creating a “proper law,” which is
based on “the most significant connection with the chain of acts and circumstances in the
particular case in question.”

The Proper Law or Social Environment Theory

In accordance to this approach the applicable law must be the one that has the most
significant connection with the facts and circumstances in a particular claim/case. 30 Lord
Denning reiterated this position to a certain extent in the case of Boys v. Chaplin, where he
said that a proper law of tort ought to be determined by establishing which law has the most
significant connection to both the parties as well as the act done. 31 The proper law theory
seeks to fill the gaps in the lex loci delicti theory. In the words of Morris, “a proper law
approach, intelligently applied, would furnish a much-needed flexibility”32 in the process of
choice of law.
The main criticism to this theory of choice of law is that it results in a fair amount of
uncertainty and unpredictability; and while it is conceded that in most situations there
wouldn’t be a need to look at a law outside of lex loci delicti it is still prudent to have an
approach that is flexible enough to include complex situations as well as the normal ones.

Position In England

With regards to the position of choice of law in the case of cross border torts, there are three
considerations – (a) position at common law, (b) statutory reform, and (c) reliefs. While the
position at common law in England was previously settled, there was a drastic alteration of
English law on the matter through the enactment by Parliament of the Law Reform
(Miscellaneous Provisions) Act 1995, under which a different set of choice of law rules were
introduced. The position on defamation related torts is still unchanged and is still the same as
settled in common law. Additionally the matter of relief in English law is considered to be a

29
P. Terblanche, Lex Fori or Lex Loci Delicti? The Problem of Choice of Law in International Delicts, The
Comparative and International Law Journal of Southern Africa 243, 250 (1997).
30
J.H.C. Morris, The Proper Law of a Tort, 64 Harvard Law Review 881, 888 (1951).
31
Boys v Chaplin, 2 Q.B. 1 (1968, Queen’s Bench).
32
Morris, supra 31, at 885.

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procedural matter and so the choice of rules that apply to them is lex fori. This paper will
only discuss the position at common law as it also relevant to India, as the few cases that
have dealt with the question of choice of law in India have placed reliance on English
Common Law Decisions.
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.
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 Halley33 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.34 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

33
The Halley, 2 L.R. P.C. 193 (1868, Privy Council).
34
Machado v. Fontes, 2 Q.B. 231 (1987, Queen’s Bench).

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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
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.35 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.36 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.

35
Govindan Nair v Achuta Menon, (1915) I.L.R. 39 Mad 433.
36
The Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd., A.I.R.1960 Raj. 224

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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.

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BIBLIOGRAPHY
1. J.H.C. Morris, The Proper Law of a Tort, 64 Harvard Law Review 881, 888 (1951).
2. P. Terblanche, Lex Fori or Lex Loci Delicti? The Problem of Choice of Law in
International Delicts, 30 The Comparative and International Law Journal of Southern
Africa 243, 250 (1997).
3. P. Diwan & P. Diwan, Private International Law: Indian and English 551 (4
ed.1998).
4. Foreign torts - LawPage.

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