Leroux v. Brown

It is the standing illustration of the wide characterisation — a forum widening the category of procedure until it recaptures its own law and displaces the governing foreign law. Every criticism of the substance/procedure rule is built on this case.

An oral agreement of service for more than a year was made in France, where it was perfectly good. English law, under the Statute of Frauds, required such an agreement to be evidenced in writing. The plaintiff sued in England for its breach.

The Statute of Frauds was characterised as a matter of procedure. The lex fori therefore applied, and the agreement was unenforceable in England although valid where it was made. The judgment has been widely criticised.

Step one — the rule being applied. Procedure is for the lex fori, and it is the lex fori that decides what is procedural.

Step two — the classification made. The Statute said that no action should be brought unless the agreement was in writing. Read as a bar on the action rather than on the obligation, it looks procedural.

Step three — the consequence. France created the right; England refused the remedy; and nothing of French law survived the classification.

Step four — why the criticism is right. The classification was not neutral. In the developing period of the subject the English courts gave an extended meaning to matters falling under procedural law in order to avoid what they regarded as an inconvenient foreign choice-of-law rule. A rule that can be widened at will to recapture the forum's own law is not a choice-of-law rule at all.

It opens: Distinguish substance and procedure, and criticise the distinction. State Huber v. Steiner for the rule, De la Vega v. Vianna for its justification, and this case for its abuse.

Give the corrective, which is the mark-winning part: not everything appearing in written form in the law of evidence is to be treated as procedural, but only provisions of a technical and procedural nature, such as rules about the admissibility of hearsay. A rule about what must exist before a right arises is substantive even if housed in an evidence statute; a rule about how a fact is proved in this court is procedural. On that test the Statute of Frauds looks substantive.

Group it with De Nicols v. Curlier and Ogden v. Ogden as the three characterisation cases: testamentary or contractual, form or capacity, procedure or substance. In each the applicable law and therefore the result is settled before any foreign rule is read.

It does not decide that the agreement was void; it was good in France, and the decision goes only to its enforceability in England.