MCELROY V. MCALLISTER: HISTORICAL DEVELOPMENT AND CURRENT THEORIES OF PRIVATE INTERNATIONAL LAW

Authors:

Amit Patel DSNLU, Vishakhapatnam

Prachi Ganeriwala, Amity University, Kolkata

Editor:

Shristi Singh, UWSL, Karnavati University

INTRODUCTION

The aforesaid case was bought in the Court in Scotland against a person domiciled there. The pursuer claimed the prerogative to solatium, loss of support, funeral, and other expenses caused by the demise of her husband, subject to the claim falling to be governed under the law of England, whereby damages for the pecuniary loss sustained by the pursuer, under the Fatal Accidents Acts, 1846 to 1908, along with entitlement to damages under the Law Reform (Miscellaneous Provisions) Act, 1934, in respect of loss caused and funeral expenses, as executrix-dative of her late husband was claimed.

FACTS

The accident perpetrated in England, whereby, due to the negligent act of the defender committed in breach of duty to exercise reasonable care which caused the demise of the husband of the appellant. She tabled the cause of action as the defender’s fault and contended that it was her statutory right to take action against him in England. She further admitted that had she obtained jurisdiction against the defender in England, she would not have been able to enforce liability on the defender. Hence, she took recourse to the Scottish Court which is bound to apply the private international law and provide her with an adequate remedy.

The case was heard before the First Division (consisting of the Lord President, Lord Jamieson, and Lord Russell) on 13th July 1948, when the Court made avizandum. Subsequently, a Seven Judges consisting of the Lord President, the Lord Justice-Clerk, Lord Mackay, Lord Carmont, Lord Jamieson, Lord Russell, and Lord Keith, on 4th and 5th November 1948 carried out the hearing sessions.

ISSUES

The first issue in front of the court was regarding the maintenance of the widow's claim to damages for the patrimonial or pecuniary loss under the Private International Law.

The next question in issue is whether or not the claim made for the loss of support suffered by the pursuer on the death of her husband is permissible by the law of Scotland.

The third issue is regarding the sustenance of claim in her capacity as executrix of her deceased husband.

RULE OF LAW

The provisions of law that were taken into consideration are:

· Fatal Accidents Acts, 1846 to 1908

· Law Reform (Miscellaneous Provisions) Act, 1934

JUDGEMENT

The plaintiff moved to the court of Scotland against the employer of her husband, but the accident which caused the death of her husband took place in England. The plaintiff asked the court to apply the law of Scotland. There were mainly three claims of the plaintiff which she pleaded before the Scottish court,

(a) To get compensation,

(b) Loss of support as her husband died and

(c) The expenses suffered by her at the funeral.

The court believed that according to the “lex loci delicti” the claims should be determined by the law of England, whereas the defendant claimed that the action can succeed only if it is wrong under both the law of England and the law of Scotland. The court adjudged that the first claim of the plaintiff is recognised under the law of England. Court of Scotland can only give compensation if it is wrong under the law of England[1] and the claim was not entertained by the Scottish court.

The second claim of the plaintiff was permissible under the law of Scotland and of English law in terms of Lord Campbell’s Act. But the claim should be made within twelve months from the accident[2]. Whereas in these particular case the plaintiff claimed after fourteen months. The claim was dismissed by the Scottish court.

The third claim regarding the funeral expenses under the Law Reform Act 1934. Such a claim was also made in a similar case of Stewart v. London, Midland and Scottish Railway Co.[3] where the claim was rejected. A Precedent was followed by the court and it dismissed the claim irrespective of the fact that the defendant was ready to pay for a funeral.

Pursuer reclaimed and the case was heard before the first division bench consisting of seven judges. While hearing the matter the first question that arose was whether the Scottish court is entitled by the principle of private international law to entertain the case. The court believed that this course is not followed in either country and that the court should follow its lex fori[4]. The court insisted on applying foreign law to the appellant and to explain the laws to the forum which was not sufficiently provided and explained by the appellant. The court also gave its opinion on the matter if the party reversed the position and went to an English court or Accident would have happened in Scotland it would be convincing and she would be able to receive the compensation for the accident caused by negligent act of defender but as this was not the case, thus the first claim was dismissed.

While hearing the second claim recalled the British Law under which the claim should be made within twelve months[5] but was made after fourteen months. The appellant argued that her claim has extinguished her right of action in England, but not in accordance with the law of Scotland as the principles of ‘Private International Law’ are accepted and applied in the courts of Scotland. The court was of the opinion that the principles of Private International Law cannot be applied to extinguishing liability it is used to treat such time limitation imposed on the law of land where the tort is being committed. Accordingly, the matter of liability is time barred and should be determined by lex fori (law of land where the action is brought), which in the present case imposes no such time limitation. Scottish court decided to apply internal domestic law and dismissed the claim. The court of forum upheld the judgement of the third claim.

ANALYSIS

The widow’s claim to the patrimonial and pecuniary damages was given the paramount importance and hence dealt first. The first question in front of the court was regarding the countenance of the case itself. It adhered that it was maintainable, the primary function of the Scotland court would be to apply the English laws the same way, had the action arisen there to figure out the maintenance, liability, and the damages from the same. But this wasn’t followed in either of the countries. The court of the forum, on contrary, insisted the pursuer to satisfy that the wrong complained, is actionable according to the law of the forum, and that matters of "remedy," being truly matters of procedure and not of a substantive right, fall to be dealt with according to the law of the forum. Insistence on the importance of the law of the forum tended to lead both Scots and English law to the illogical conclusion that, whereas prosecutable in the forum is of utmost importance, a pursuer can invoke the Court of the forum without having established prosecutable under the place of the commitment of the tort. Prosecutable under the law of the country where the tort is committed was held to be in principle an absolute condition; otherwise, a quite unjustifiable emphasis is given to the law of the forum. A Scots Court can discover the prosecutable under the lex loci delicti only by proceeding on admissions of parties or evidence led before it. The absence of the same was considered fatal to the widow's case; hence the claim by the executrix was rejected.

CONCLUSION

It was held that by refusing the reclaiming motion, no hardship was being inflicted upon the pursuer. If a person suffers wrong in a foreign country, it is the primary court of that country, which will provide the remedy. Difficulties may arise in unravelling the jurisdiction against the defender in the foreign forum, but that risk is minimal, where the foreign forum is England. In any event the risk of failure to discover jurisdiction against a defender, is a risk which every pursuer must face, irrespective of the locus delicti. But, if a pursuer chooses to elect some other court to sue, the onus of the insurmountable travail faced is on him. Moreover, it is nugatory to minimise the practical difficulties which would arise if an attempt to carry this action to a conclusion was made. Further, it would be inconvenient and unjust to either party by providing remedies on the basis of a branch of English law, unknown to the law of Scotland.

[1] Naftalin v. London, Midland and Scottish Railway Co., 1933 SC 259. [2] Goodman v. London and North Western Railway Co, (1877) 14 S.L.R. 449. [3] Stewart v. London, Midland and Scottish Railway Co, 1943 SC 19. [4] Machado VFontes (1897) 2 Q. B. 231 [5] Supra note 4.

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