John-Paul Swoboda and Spencer Turner instructed by Dushal Mehta of Fieldfisher recently represented a Claimant in a claim which involved the common law double actionability rule and the circumstances in which the “flexible exception” to the rule can apply.
The claim was brought by the widow of Mr Haggerty in England. Mr Haggerty died from mesothelioma following exposure to asbestos in Scotland in the 1970’s. The Claimant’s position was that Scots law applied to the claim. If Scots law was found to apply to the claim, the Claimant could bring a claim for ‘loss of society’ under section 4 of the Damages (Scotland) Act 2011, which had the potential to substantially increase the value of her claim. Relatives unable to claim in English law would also be able to join the action if Scots law applied.
This blog post considers the principles relevant to the determination of the applicable law in this claim.
Applicable Law and the ‘Double Actionability’ Rule
The applicable law in this claim fell to be determined by the common law double actionability rule because the alleged tort occurred before the Private International Law (Miscellaneous Provisions) Act 1995 and the Rome II Regulation came into force.
The origins of the English common law position are set out in Phillips v Eyre (1870) L.R. 6 Q.B. 1 in which Willes J stated that:
“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 of where it was done.”
Willes J’s decision came to be regarded as requiring the existence of a civil liability for the harm done which was imposed by the law of place of the tort. However, any civil liability would only be actionable in England if the circumstances of the case, had they occurred in England, would have also given rise to an actionable claim in tort.
The House of Lords considered the applicable law rules in relation to torts committed abroad in the case of Boys v Chaplin  A.C. 356. The majority of the court affirmed the general rule of double actionability as was stated in Phillips.
The rationale for the double actionability rule is twofold. Firstly, it seeks to ensure that a person should not be liable for something which is lawful in the place that it is done and secondly, to provide that a person who is given protection by the laws of one country is protected against legal proceedings in other countries.
The Exception to the ‘Double Actionability’ Rule
In Boys, Lord Wilberforce emphasised that double actionability was to be the general rule but it was not invariable and was subject to a “flexible exception” where the court considers it just to apply it. The exception provides that a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence of that issue and the parties. The exception was not precisely defined in Boys when Lord Wilberforce said that there was:
“great virtue in a general well-understood [double actionability] rule covering the majority of cases provided that it can be made flexible enough to take account of the varying interests and considerations of policy which may arise when one or more foreign elements are present.”
Boys arose out of a road traffic accident in Malta. The Claimant and the Defendant were both normally resident in England but at the time of the accident were stationed in Malta as members of the armed forces. Maltese law provided that general damages could not be recovered for PSLA. The question for the House of Lords was whether or not the Claimant could recover the general damages in his claim brought in England.
The House of Lords determined that, although the Claimant’s claim would fail under the general rule of double actionability, there were clear and satisfactory grounds on which to apply the flexible exception. Lord Wilberforce particularly emphasised the fact that the parties were both normally resident in England and that no policy or interest of Malta would be adversely affected by the application of an English rule in a claim brought by one English party against another.
The difficulty with the exception is that the court in Boys did not provide a set of firm guidelines for determining when the exception could be invoked.
The flexible exception to the double actionability rule was considered again by the Privy Council in Red Sea Insurance Co Ltd v Bouygues SA  1 A.C. 190 (PC). In Red Sea Lord Slynn said that the exception could be invoked in cases in which the law of the place where the tort was committed was more significantly related to the case as a whole or to a particular issue than was the law of the country in which the action was brought.
The Court of Appeal further considered the exception in Pearce v Ove Arup Partnership Ltd  Ch. 403 (CA). In that case there was a claim in respect of a breach in the Netherlands of a Dutch copyright which would not have been actionable if committed in England. The Court of Appeal said that “the plaintiff’s claim would be defeated if the court were to refuse to apply the exception. But the claim … is one where the English court would have given a remedy, under United Kingdom copyright law, if the facts alleged had occurred in England. This is not a case in which the claim is in respect of some wrong which is conceptually unknown in English law. In our view this is a case where … the exception to the double actionability rule enables the English court to apply Dutch law; and the English court ought to do so.”
In Sophocleous v Secretary of State for the Foreign And Commonwealth Office  EWCA Civ 2167, the Court of Appeal restated the comment made by Lord Wilberforce in Boys, that there needed to be “clear and satisfying grounds” for the flexible exception to be applied. The Court of Appeal stressed the importance of the general rule and emphasised that the courts should not apply the exception readily.
Lord Hope in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5)  2 AC 883 said of the exception that “unless a rigorous approach to this question is adopted, the application of the exception is at risk of giving rise to much uncertainty and to the criticism…that it has become instinctive and arbitrary”
The instant matter was listed for a preliminary hearing to determine whether Scots law or English law applied in whole or to any part of the claim.
The Claimant’s position was that there were clear and satisfying grounds for the Court to find that the applicable law to the claim was Scots law, arguing that:
- The exposure took place in Scotland.
- The Damages (Scotland) Act 2011 provided for a significantly larger damages claim than under the Fatal Accidents Act 1976 and there was the potential for different family members to be compensated under different regimes which would be incongruous.
- A group of potential claimants in Scotland may have had their claims extinguished if Scots law did not apply to the claim. It would therefore be unjust to minimise damages by reducing what was recoverable to the lowest common denominator as between Scots law and English law.
- The stated goal of English law was ‘to fulfil foreign rights, not destroy them’, as per KXL v Murphy  EWHC 3102 (QB).
The Defendant’s position was that:
- The parties were domiciled in England.
- The consequences of the tort were and will continue to be experienced in England.
- The Claimant chose to sue in England rather than in Scotland.
The matter was set down for a preliminary hearing in the High Court to determine the applicable law. Shortly before the matter came before the court the Defendant accepted the Claimant’s position that Scots law should apply to the claim.
The case provided an interesting insight into the authorities surrounding the principle of double actionability and the flexible exception the rule. This case demonstrates that the common law rules are by no means obsolete. Given the majority of asbestos cases involve exposure before the Private International Law (Miscellaneous Provisions) Act 1995 came into force, it is not expected that this will be the last time that practitioners and the courts have to grapple with the issues which arose in this case.