Civil Wrongs Non-EU

Overview

Conflicts of law issues may arise where a civil wrong is committed in one jurisdiction, but injury results in another.  There is a wide range of civil wrongs ranging from nuisance, defamation and trespass, where liability may be strict, to negligence and to torts requiring intent or recklessness such as fraudulent misrepresentation.

Conflict issues may arise in relation to the broad range of liability and exemption issues such as capacity, liability/responsibility, defences, limitations on recovery and time limits.

Generally, the wrong is deemed to be committed where the harm is suffered.  Complicated questions may arise if the act causing the harm takes place in one country but the harm is suffered in another country.  There are no fixed rules.  The Courts may apply either or both possibilities.

Irish law applies if the wrong happened in Ireland.  In some cases, the courts may apply Irish law if the wrong happened abroad between persons whose habitual residence is in Ireland.

Place of Tort Approach

If a tort/ civil wrong occurs in Ireland, then the general rule is that Irish law applies.  This is the case, although there may be factors associated with another country, such as the claimant and the defendants being residents of that country.

In the vast majority of cases, the place where the civil wrong is committed is the appropriate governing law. Where a civil wrong has been committed in Ireland, then Irish courts will apply Irish law.  This will apply irrespective of the parties’ nationality or place of residence and however limited their connection with Ireland is otherwise.

This rule is commonly applied in Continental Europe and was formerly the universal rule in the United States.

Significant Relationship

In the 1960s, the US courts restated the rule as the law of the place with the most significant relationship with the event or the parties.  In this case, an accident occurred in Canada in which the parties were two New York state residents. The courts emphasised an approach based on the governmental interest.

The English courts have also allowed a degree of flexibility following the modern approach undertaken by the US courts since the 1960s.  The British courts, prior to UK statutory reforms, were prepared to apply a significant relationship test.

This traditional rule may be subject to the modern flexibility operated in the converse situation of torts/  civil wrongs abroad by Irish residents. There are different views as to the extent to which this may be a possibility.

More generally, Common law recognises that an issue between the parties may be governed by the law of the place with the most significant relationship with the occurrence or with the parties.

Proper Law Approach

The American restatement of conflict of laws considers the so-called proper law of the tort.  This is intended as a flexible approach, which generally applies the law of the place of the wrong but is flexible enough to allow for exceptional situations where a new rule may apply.

The proper law of the tort looks at the entirety of the circumstances, social factors, consequential harm and policies involved.  It recognises that the place where the wrong happens to be committed may, in some exceptional cases, be arbitrary and inappropriate in the context of the traditional rule.

The English courts have taken different views as to the extent to which the proper law of the tort approach is taken in England. There is still uncertainty over whether it is possible to apply the civil wrongs of another country, which is neither that of the home country nor the place of the wrong.

The Irish Supreme Court in the 1980s took the view that the Irish courts should be sufficiently flexible to respond to individual issues presented in each case and the social and economic dimensions of applying a particular choice of law rule in proceedings.

Suit for Wrong Abroad

A claimant may recover damages for a tort/ civil wrong committed abroad. He or she could sue for a civil wrong in Ireland, and it is a civil wrong in the place concerned.  Therefore, it must be possible to bring the claim both in the jurisdiction in which the persons reside and where the action occurred.  If it is possible to bring a defence, it is not possible to bring the case in Ireland.

There is an exception to the rule. It is applied when the requirement that the matter be a tort in both jurisdictions would lead to an unjust decision and should instead be governed by a single law.  In these cases, the rights and liabilities of the parties are determined by the law of the State, which has the most significant relationship to the occurrence and the parties. The general rule would apply unless there are good reasons to the contrary.

The Irish Courts appear to adopt a flexible approach whereby they may allow service outside the jurisdiction if a significant element has occurred in the jurisdiction.  There is, however, a burden on the Court to examine the circumstances.  The Irish Courts indicate that they should be flexible and capable of responding to the individual issues presented by a case and to the social and economic dimensions relating to a particular choice of law.

Suit Abroad Issues

The general rule is that the civil wrong must exist under domestic law and the law of the place where the wrong took place.  Therefore, a claimant, who seeks compensation in Ireland for what is a wrong or civil wrong in accordance with the place where it is committed, must also show that if the act was done in Ireland it would have constituted a civil wrong under Irish law.

The claimant must prove that the act is actionable under the foreign law. If the action was justifiable under the law of the place where it occurred, the courts will not generally find liability.  This effectively means that it must be wrong or actionable in the law of the place where it occurred.  The courts have been cognisant of not encouraging forum shopping.

The English courts have sometimes allowed claimants to rely exclusively on the foreign law of the place where the wrong was committed, even if the claim would not be actionable under domestic law.  This is by way of exception to the general rule, which applies unless there are clear and satisfactory reasons why it should be departed from it.

The exception can be applied to the whole claim and not just particular parts of it. It is unclear whether the exception would apply if the effect is that the claimant would recover less than under the general rule or where it leads to no recovery at all.

Limits to Proper Law Approach

In the case of claims based on statute, it may be on the true interpretation that it is not intended to apply outside the jurisdiction at all.  In this case, no action would lie for something occurring in another state, even between residents of the jurisdiction.

Domestic courts will not entertain claims arising from civil wrongs concerning land abroad.  Therefore, claims of trespass to foreign land may not be brought within the jurisdiction.  The Irish courts have no jurisdiction whatsoever in such cases.

At Sea

Civil wrongs committed on ships in the high seas are committed in the country of the ship’s flag, the state to which it is registered. Where a civil wrong is committed on the seas and is confined to one ship, the law of the flag controls the position.

Collisions between ships within Irish territorial waters are subject to Irish laws.  Where they are not confined to one ship and take place in foreign waters, the law of the ship\’s flag is irrelevant.