Source: All England Reporter
Publisher Citation: [2006] All ER (D) 183 (Jun)
Neutral Citation: [2006] EWHC 1450 (Comm)
Court: Queen's Bench Division (Commercial Court)

Aikens J

Representation Stephen Males QC (instructed by Middleton Potts) for the claimant.
  Andrew Onslow QC and David Quest (instructed by DLA Piper Rudnick Gray Cary UK LLP) for the defendant.
Judgment Dates: 16 June 2006


Conflict of laws - Tort - Proper law of tort - Factors connecting tort with relevant law - Whether law of pre-existing contractual relationship between parties relevant factor for determining proper law of tort - (Miscellaneous Provisions) Act 1995, s 12.

The Case

In s12(1) of the the court was invited to make a comparison of the significance of the factors which connected a tort with the country whose law would be the applicable law under the 'general rule' and the 'significance of any factors connecting the tort with another country'. Emphasis should be given to the words 'any factors'. Section 12(2) was inclusive, not exclusive in its terms. It provided that the court could take into account ' in particular, factors relating to the parties' as factors that might connect the tort with 'another country' for the purposes of s12. The phrase 'factors relating to the parties' was broad; it only had to 'relate' to the parties. It could include the fact of a pre-existing relationship between the parties, whether contractual or otherwise. It would also include the law that the parties had chosen for that pre-existing relationship. If that relationship could be said to have given rise to events constituting the alleged tort in question, then the factual and contractual context in which the events took place and the law governing any related contracts had to be within the phrase in s12(2) ' relating to any of the events which constitute the tort in question or to any of the circumstances or consequences of those events'. The governing law of a contract was a 'factor' for consideration under s12.

Practice Areas

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