Phillips v. Eyre (1870)

This is the rule of double actionability, and for a century it was the whole of the English choice of law in tort. Every question on tort in this module starts here, and the criticism that follows — The Halley, Machado v. Fontes, Boys v. Chaplin — is criticism of these two sentences.

It matters also as a lesson about how a rule can acquire an authority its origin never justified. This course is dry about it: "It is unlikely that the case would have attracted much legal notice had it not been for the attempt of Willes J to state a general rule. His words have been scrutinised by generations of commentators as if he were seeking to legislate for all time."

Eyre, Governor of Jamaica, contravened the plaintiff's civil liberties in putting down a rebellion. The legislature then passed an Act of Indemnity validating his acts retrospectively. The plaintiff sued in England for assault and false imprisonment.

The action was dismissed. Willes J.:

"As a general rule, in order to found a suit in England for a wrong 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".

On the facts, the Act of Indemnity made the acts justifiable by the law of the place where they were done, so the second condition failed.

Step one: refuse the two extremes. The lex fori alone would invite forum shopping; the lex loci delicti alone would make the English court enforce a liability unknown to its own law. The rule takes something from each.

Step two: read the asymmetry, because it is the whole of the criticism. Limb one demands actionability by the lex fori. Limb two demands only non-justifiability by the lex loci delicti. This is not a rule requiring the wrong to be a tort in both places. It requires it to be a tort in England, and merely not innocent abroad.

Step three: see what each limb does in practice. The Halley is the only authority for limb one: foreign shipowners sued the owners of a British steamer for collision damage caused by the negligence of a compulsory pilot in Belgian territorial waters; Belgian law made the owners liable, English law then did not, and the Privy Council dismissed the action, "holding that it would be contrary both to principle and authority to award a remedy for an act that constituted no wrong by English law."

Limb two was reduced almost to nothing by Machado v. Fontes: a libel published in Portuguese in Brazil attracted no civil liability there, but criminal proceedings were possible, so the act was not justifiable; the Court of Appeal held limb two "would be Satisfied unless it could be demonstrated that the act in question was authorised, innocent or excusable in the country in which it was committed", and the plaintiff recovered in England.

Step four: state the consequence of that reduction. The whole substance of the obligation then came from English law — a system "involved in the case solely because the plaintiff decided to bring his action in England." So the rule as applied collapses into the lex fori theory, together with its invitation to forum-shop.

Step five: note that on the facts the second limb did real work. The Act of Indemnity made the conduct lawful where it occurred, retrospectively, and that defeated the claim. The limb is not empty; Machado is what emptied it.

It opens: every question on choice of law in tort. State the two limbs in Willes J.'s words, then the asymmetry, then the two illustrating cases, then the House of Lords.

Finish with Boys v. Chaplin. Two Englishmen in Malta; Maltese law allowed only special damages of £53, English law general damages bringing it to £2,250; the House of Lords was unanimous that the higher English sum was recoverable, but "the reasons and the principles of law have been differently stated by the judges who participated in the decision and a chance to elucidate the law on this topic has been lost."

The observation that lifts the answer. A rule stated in 1870 by a single judge in a case about a colonial indemnity Act governed English choice of law in tort for a century before the House of Lords examined it directly, and when it did it could not agree. A rule of that provenance is a rule ready for legislation — which is why the syllabus pairs this head with a European instrument.

And the comparative point for a critically examine question. Each solution cures the last one's defect and creates a new one: the lex fori invites forum shopping; the lex loci delicti cannot locate itself in a modern tort; the proper law of the tort is flexible at the cost of predictability. Contract has one governing law and tort has none, and that asymmetry organises the module — the proper law doctrine works in contract because there is a contract to consult, and Phillips v. Eyre survived a century because nobody could find a replacement.

It does not decide: what law governs damages, remoteness or the measure of recovery; nor does it say that the lex loci delicti is applied at all — under this rule foreign law operates only as a negative condition.