Scottish Court of Session Decisions

At advising on 10th December 1948, when only the Lord President, Lord Carmont and Lord Keith were present,—

LORD JUSTICE-CLERK (Thomson) (read by the Lord President).—That Naftalin was rightly decided I have no doubt. Solatium is not recognised by the lex delicti. It can be defended as a relevant ground of claim only if it can be regarded as an element to be considered in measuring damages. If it could be so regarded it would fall within the scope of the lex fori as being a matter of remedy and not of substantive right. Looking to the nature of solatium as it has been expounded in a series of authorities, I find it impossible to regard it otherwise than as a separate right peculiar to the law of Scotland. The argument to the contrary can be supported only by placing on the word "remedy" a meaning wider than it can bear consistently with the accepted principles of private international law.

On the other issues raised I deal first with the widow's claim to damages for patrimonial or pecuniary loss.

When a pursuer comes to a Scots Court with an action for damages based on a wrong committed in England, the first question is whether the Scots Court is entitled by the principles of private international law to entertain the action. Looked at from the strictly logical point of view it would be tempting to think that, granted that the Scots Court had jurisdiction against the defender, the function of the Scots Court was to discover and, having discovered, to apply the law which an English Court would have applied had the action been raised in England. The Scots Court, it might have been thought, would ask:—(i) Is the action good in England? (ii) If so, what is the extent of the rights of the pursuer and of the liability of the defender according to English law? And (iii), if the Scots Court held that the pursuer had made out his case, it would proceed to award damages.

But this is not the course which has been followed in either country. The Court of the forum has insisted (1) that the pursuer must satisfy it that the wrong of which he complains is actionable according to the law of the forum, and (2) that matters of "remedy," being truly matters of procedure and not of substantive right, fall to be dealt with according to the law of the forum.

There are sound reasons for this attitude. So far as remedy is concerned the reasons are practical, though the line between what is matter of remedy and what is substantive right may be difficult to draw. So far as actionability is concerned, it would be too much to expect the Court of the forum to entertain an action for what is not a wrong by the law of the forum. The Court of the forum must in fundamentals be true to its own law. Moreover, the Court of the forum cannot authoritatively lay down the foreign law. All that it can hope to do is, on the admissions of parties or on the evidence led by them, to make findings as to what it thinks is the foreign law. Any such finding is subject to all the imperfections which attend any finding in fact.

Insistence on the importance of the law of the forum has tended to lead both Scots and English law to the illogical conclusion that, whereas actionability in the forum is a sine qua non, a pursuer can invoke the Court of the forum without having to go so far as to establish actionability under the lex delicti. The persistent use of the word "justification" in the English cases is symptomatic of this tendency. The high-water mark of this tendency in England is Machado v. Fontes, while in Scotland M'Larty v. Steele seems to suggest that the commission of a moral wrong in the locus delicti is enough. In my view this tendency is wrong. Actionability under the lex loci delicti seems to me to be in principle a sine qua non. Otherwise a quite unjustifiable emphasis is given to the lex foci.

A Scots Court can discover whether there is actionability under the lex loci delicti only by proceeding on admissions of parties or on evidence led before it. Accordingly there must be adequate averment by a pursuer of the foreign law applicable to the situation. He must say what that law is and explain how it establishes his right to claim damages in respect of the wrong founded on. Precise averment is the more necessary where it is matter of controversy whether the test of actionability under the lex delicti falls to be applied at the date of the act complained of or at the date of the raising of the action. In the present case there are no sufficient averments. This, in my view, is fatal to the widow's case.

Had there been a relevant averment of actionability under English law an interesting question would have arisen as to whether the pursuer was entitled to ask the Scots Court, as the Court entitled to deal with "remedy," immediately to proceed to assess damages on the same principle as it would assess damages in an ordinary action at the instance of a widow for patrimonial loss, or whether it was incumbent on the pursuer to aver and prove the character and scope of the rights conferred on her by English law on the basis of which the Scots Court would ultimately assess damages. As this question does not arise, I express no opinion on it.

So far as the claim by the executrix is concerned, I see no difficulty in rejecting it. Actionability by the law of the forum is a sine qua non. The executrix could not have insisted in this claim had she been suing in respect of a wrong committed in Scotland.

LORD MACKAY (read by the Lord President).—This action, dependent on the death in England of a husband, M'Elroy, has been referred to a Court composed of the original three Judges and four consulted Judges, of whom I am one, chiefly, if not entirely, because of a challenge cast out against the comparatively recent decision of the Second Division of this Court in Naftalin v. London, Midland and Scottish Railway Co., and as essentially raising a pure question of private international law, as our Scottish High Courts apply it.

While I do not and cannot challenge the right and propriety, if circumstances and justice call for the course, of certain of the consulted Judges opening points of difficulty of a much more subtle and recondite kind than were actually argued before the seven Judges, I am bound to commence with these straightforward conclusions:—(1) As regards the alleged conflict between the full Division in 1933 and certain supposed contra—indications by two Judges in the year 1878—Horn v. North British Railway Co. —I certainly was under the impression that every one of us who heard the full debate was of the mind to support the result and the reasoning of the Naftalindecision., at any rate, was of that opinion absolutely, and I now need do no more than say that I concur in the result of Naftalin, and in particular (while rejecting none) in the excellent course of reasoning of Lord Murray, at pp. 272–275. (2) On the original pleadings the pursuer sued as a relative of the deceased, not as a representative in any sense, and she propounded her own alleged suffering and losses, and not those of the deceased gentleman. As such I cannot and do not understand that anything emerges in her favour, once Naftalin is received. But (3) it was shown us that at some period there was an amendment proposed and allowed, by which the pursuer adopted for herself a very different character, to wit, that of executrix of the deceased. As executrix-dative, of course, she might have been any one who obtained the appointment at the Sheriff's hand, and such executor might conceivably have had no claim of any kind at Scots law. She amends the instance to read, not alternatively, as I think it should have been, but cumulatively; and now the conclusion runs for damages of £2000 and of £2000, and sued out in two distinct capacities. Pleas in law (1) and (3) seem referable to the original action. Plea in law (2), stated separatem, asks for cumulative damages "as an individual under the Fatal Accidents Acts, 1846 to 1908" (a group of English statutes) "and as executrix-dative under the Law Reform (Miscellaneous Provisions) Act, 1934" (also an English Act, and containing provisions quite other than any remedies given by the Scottish Act of nearly corresponding date, Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940). (4) These new pleadings in both their parts seem to me to claim at the hands of a Court in Scotland remedies only competent under English law, and those, one and all, referred not to any common law of that country but to particular statutes. (5) As regards the new atmosphere introduced by these amendments, I am quite clear that two wholly unrelated actions, on wholly unrelated grounds, are figured, and that the only way to judge with clarity is to suppose that they are separated and are in effect two actions—so to dispose of the original action as a claim to solatium and lack of support personal to the widow, and therefore as the claim of a favoured relative in her own name; to treat, similarly, the amended pleadings as a representative action by this person vested in the "estate" of the late Mr M'Elroy, and competent, if at all, in virtue of a recent, and an English, statute.

Having made my position quite clear thus, I turn first, a little reluctantly, to deal with the private international law question as decided by Naftalin Although I am returning opinion as a consulted Judge, I think I may take it as known that your Lordship in the chair (as well as most or all others) takes the same view as I do, that the choice of law is rightly decided to be the lex loci delicti—that a wrong of a personal sort (negligent driving) committed by the servant there acting, albeit a servant of a Scottish domiciled employer, provides remedies and jura actionis to be entirely justiciated (wheresoever in the world a forum may happen to be found) by the law of the place—that is the law of England.

It is here at this stage alone that the full discussion in Naftalin had, and has, place. The Judges then fully discussed the doctrine, and reviewed the bearing in Scottish private international law, in particular of Horn, Goodman(per Lord Shand), Kendrick, Convery, in Scotland; also, of Machado v. Fontes (a case which resulted in a refusal to allow a specific amendment by a plea which was of no authority binding here; while it is also true that it has undergone much criticism), Phillips v. Eyre, The M. Moxham, Scott v. Lord Seymour, all the latter group from the neighbouring country. Counsel were not able to convince me (a) that any of these cases culled from England raised up a solution of the choice of law, within a conflict of laws, of a different sort from that received here in 1933; or (b) that the disposal of them by (in especial) Lord Murray was in any the slightest manner erroneous; or (c)that in principle the Naftalin decisionshould now be questioned.

I shall therefore confine my remarks on this head to these few:—(1) Lord Murray was right as regards Phillips (see per Willes, J.) and Moxham that the whole decisions turned on the (in their circumstances) fatal fact that the lex loci gave no jus actionis and did not even recognise the matter of complaint as a wrong. Any other remarks appearing in any English opinion therein must be held as obiter dicta. (2) The authority of the supposed counter decision, that of Horn in 1878, is of no weight to-day, after so much further discussion has passed upon and about the conflict of laws problem. Indeed, having read with double care what must be always regarded as the principal opinion, that of Lord Clifford, who both presided at the trial and expressed more fully the views of the Court who refused a new trial moved for under the 1815 statute, I am convinced that the foundation of that opinion was not rested upon a question of private international law at all. The reasoning rather was pitched (as plainly it was his Lordship's main concern) upon his special doctrine of "ticket"; the ticket issued at Kickball to cover a multiple—railway journey to England was at considerable length developed as containing or embodying a railway contract to carry safely over all associated lines covered by that journey, and accordingly the question standing for consideration by jury and Judges was, in his opinion, one in which as a question of contract, not dependent on tort, he could ask: Were the associated railway companies the servants, or at least the agents, of the Scottish company so that the latter company by the very issue of their ticket were under their contract liable to pay damages for all the breaches of contract which their agents might commit? At any rate, and even if that decision of 1878 has any bearing on the international law question, I am prepared to concur in overruling it; its attack and its logic have no impetus on my logical and legal understanding; Lord Orbital's dissent remains unanswered. (3) Lastly, I have read Good man with great care, and I think that Lord Hand, in a long and able judgment, covered all the points subsequently picked up in Natal and all the points which, even in the most sketchy way, were touched on in this Court. Moreover, I am of opinion that the argument was wrong which claimed that Lord Dune din's approval in the later case of Convey (at p. 119) was in any way limited in character and, in particular, should be used as doing less than approving Lord Hand's whole treatment of the problem. His Lordship obviously, to my mind, approved of the whole of the important passages of Lord Hand, occurring on p. 451 (first and second columns). I find my mind completely in consonance with Lord Hand's course of reasoning, which was neither as fully expounded as it might well have been, nor was it adequately and fully attacked. Mr Walker's way out from its close reasoning was merely to suggest to us that Lord Hand had decided a question of fact, being a question of what was a certain foreign law, as if it had been a legal question and that he did so without proof. I have troubled to verify whether that attitude had justification, and it does not abide examination. Lord Hand had a full admission of counsel, (a) that the two laws were different, and (b) as to what was the foreign law of England.

The limited idea, later broached, that one could separate out a widow's claim for "pure" solatium as for wounded feelings only, from any monetary claim for prospective support, does not appear to me to be worthy of further examination. The right conferred in Eisten is one and indivisible. The doctrines of Natal, and of the textbooks and other authorities relied on, do not proceed upon the mere nature of "pure solatium" as such, but rely on the view that the whole apposite Scottish common law, as expounded in Eisten and now in other cases down to the recent decisions of Kirkpatrick v. Anderson and M'Kay v. Scottish Airways, confers a very special jus actions on a very special, and arbitrarily limited, class of suitors, and is placed on a very special and individual basis.

The later English law, as often expounded in comparative judgments, while to a very limited extent it aped or copied the general pattern of the Scottish common law, did clearly not embody it in full, or even in substance, in the statute of 1846. It gave by force of statute a much more limited right of action, to a differently chosen set of relatives, and subject to inherent conditions regulating the right to sue so conferred. All differed vastly from the rights of the Scots common law. The faint submission that the inherent conditions of the new conferred jus were only of the nature of a subsequent "limitation of action" will not do. For they are given unico contextuwith the jus and cannot be divorced from it.

Now, in matters involving private international law, a choice between two systems, my long-fixed belief is that, although in the end of the day, and in dubio only, each forum must decide what is the state of international law for it, yet it is legitimate in such conflicts to look at and to use both academic writers, and dicta from Judges in any relevant touching jurisdiction, in order to inform the mind; also, and this even more important, that, if necessary to inform that judicial mind, it is legitimate to consider, and if necessary construe, both the statutes, if expressed in intelligible English, on which either party or both parties found, and decisions which have already contrasted the two systems; and this for the purpose of ascertaining (a) whether there is a definite and distinct set of laws relating to remedies for the party suing and for the act complained of, in that country and in this; and (b)whether the difference amounts to a variant law, to different jura actionis, or only to a mere matter of form of remedy—of "procedure" or of "evidence," as the matter is sometimes called—but to me neither of the chosen words, neither "evidence" nor "procedure," quite expresses the proper distinction.

On these considerations I have no doubt whatever that Lord Campbell's Act of 1846 and, again, the cited English Act of 1934 contain a different law, one expressed in favour of different classes of persons, and having very distinctly different modes of arriving at whether any remedy exists on given facts, and as to what is its mode of ascertainment. In other words there are two laws competing for application according as one takes the lex loci or as one takes the lex fori—the latter here being the law of Scotland. But in the present simple international problem much of the above is needless. For Mr Walker completely admitted that the systems (under his Part I) were different, and it was for that reason he had tried to allege English law; but, in my judgment, he failed in the result to make any good averment to go to proof. For it is not a reasonable averment of a foreign system, merely to aver that by that system one has a right of recovery.

With that I dispose of the question remitted under the first half of the action. I know of no further distinction, subtle or other, which arises on the authorities. Even if I should admit some very slight difference of statement in older English dicta, it is still the private international law of Scots Courts that is the determinant. It is not possible, in an action brought at a date too late in England for any remedy whatever to be achieved, to set up for a span (as it would be) of twenty years to come a foundation in Scotland for an action of damages, which is thereupon to succeed by the proof of any English law as yet shown to me, that is, of remedies given only by an English statute (and then only sub modo, and passed only in 1846).

The second part of the amended action seems to me still less hopeful. Here the reversal by the House of Lords authority—Stewart—of the case of M'Enaney v. Caledonian Railway Co., as having been ill decided, puts an end, within the ambit of Scots law, to any right residing in the executor or executrix of a deceased man, as such, to sue for any remedy in damages redounding to his estate, unless he should have actually brought an action into Court while in life.

By strong contrast, English statute law, and that only since 1934, has apparently (construing for myself this English statute as best I may) reversed the solitary English rule which provided that actio personalis moritur cum persona, and which applied it with utter hardness, and now has allowed causes "to survive … for the benefit of his estate." The Scottish law has not been similarly amended. I am quite clear, so far as the arguments went, (a)that the amended cause is irrelevant in that, while referring to this statute by name, it does not profess to propone any apposite English law as collated with the only facts alleged, and (b) that it does not even state formally the necessaries under the new statute for presuming an estate claim. Moreover, again, I hold that it is impossible by suing in Scots Courts or in French Courts, or by betaking oneself to any other selected foreign Court, to set up a right of action for £2000 at the instance of the personal representatives, which would not be sustained by the Courts of the primary jurisdiction. Indeed, we are here driven back to the still more simple requirement that the law of the "secondary" or accessory forum, as distinct from the primary forum, must also provide to the same class of suitor, and by the same or approximately the same rationes, a comparable, if not the exact, remedy. These grounds were the actual rations decidendi as it happened in the cases of Phillips and of The Moxham. The phrases I have used in debate Were "primary" and "secondary" fora;but I see that another word seems to be in use and approved—the "accessory" fora. It is unnecessary for me to say so, but I incline strongly to think that by the very English authorities on the new statute itself the "cause of action" conferred is necessarily, if laid under the 1934 statute, a cause to be maintained only in the English Courts, and only for actions primarily pursuable there. Thus, under section 1 (3) of the Act, there is an inherent condition (or conditions) of the new remedies so far as pursuable "against" the estate, and it seems to me at least doubtful whether the "surviving" actions either way are so set up as to be taken to "accessory Courts." This whole matter may be perhaps convincingly treated if one considers reversing the positions here, and if one assumes, in an action laid for a negligent wrong committed in Scotland, that the claimant were to prefer to go to English Courts for the remedy which Scotland (ex hypothesi) has now refused, and should found on the statutory word "cause of action … maintainable"; while averring that the place of such "cause of action" is not in the land where the amended law applies. On that footing, such cause may equally well be in Scotland, or in any foreign country where a pretence of jurisdiction could have been set up.

My vote in the question submitted is therefore of necessity that in both portions of the attempt the present action fails, and it does not matter much whether one calls it a mere failure on relevancy (in that regard I think the amended pleadings leave much to seek); or that the two proposed craves for cumulo awards of £2000 are each excluded by the facts alleged and admitted. I personally, however, would stress that we gave Mr Walker every chance, and even invitation, to amend this record again, and that he stood silent. To my thinking he is well aware that suitable amendment is not open to him and that he must stand or fall with the Naftalin decision. I do not therefore feel that our proposed decision would be one pronounced merely on imperfect pleadings.

I would accordingly dismiss the action.

LORD RUSSELL (read by Lord Carmont).—The pursuer seeks to obtain in a Scottish Court an award of damages by way of reparation in respect of loss and injury suffered by her consequent on the death of her husband from fatal injuries negligently inflicted on him by the defender. The liability of the defender is averred as resting on delict committed by him in England in respect of the negligent driving there of a motor vehicle which directly caused personal injury resulting in the husband's death. Since the wrong complained of was perpetrated in England it is clear, in my opinion, (first) that the rights and liabilities of the parties must be regulated by English law, and (second) that the law of Scotland (as the lex fori) and the law of England (as the lex loci delicti) must be shown to concur in recognising as legally valid her cause of action and in recognising as legally enforceable the defender's obligation to pay damages thereunder. There is ample authority to vouch those two propositions; and, as the relevant precedents have been cited already in the opinions delivered by your Lordships, I do not recapitulate them.

By the common law of Scotland the pursuer as an individual would, qua widow, if the delict had been committed in Scotland, have a cause of action in a Scottish Court to enforce her actio injuriarum so as to render the wrongdoer liable in damages. In such an action she would be entitled to claim an award of damages for such loss and injury as she could establish, including, inter alia,an award for solatium for injured feelings, and also an award for the loss of natural support. She avers and pleads that by the law of England she has a similar cause of action, conferred by statute, enabling her to enforce liability against the defender for "pecuniary loss"; and that, although a claim for solatium would admittedly be rejected by the law of England, its validity in this case falls to be determined by the lex fori as relating to and forming an element in the remedy sought by her, and is therefore unexceptionable. On that aspect of the case it was conceded in argument that, if the case of Naftalin is accepted by this Court as well decided, it negatives the validity of her claim for solatium in the present case. It was maintained, however, that Naftalin was wrongly decided. On the argument addressed to us on that topic I am content to agree with the reasoning and conclusions set out in the opinion of the Lord President with whom I concur in holding that Naftalinshould be approved and that Horn v. North British Railway Co. and M'Larty v. Steele should now respectively be regarded as of no authority.

On the remaining item of her claim as an individual—for"pecuniary loss"—the pursuer avers and pleads that she is entitled by the law of England to put forward such a claim by virtue of the provisions of the Fatal Accidents Acts, 1846 to 1908. It appears, inter alia, from these statutory provisions that in the circumstances averred by the pursuer in the present case the defender would "be liable to an action for damages" for the benefit of, inter alia, the widow of the deceased; that the widow would have a title to sue such action; and that "every such action shall be commenced within twelve calendar months after the death" of the deceased. It is admitted that the present action was not commenced until more than fourteen months after the death of the deceased. The defender, relying on the twelve months' time limitation, has argued, in conformity with his averments and pleas, that the pursuer's right of action is a special statutory right of action which remains alive for twelve months and no longer; and that on the expiry of twelve months after the deceased's death, without action commenced, the statutory right of action available to the pursuer by the lex loci delicti suffers annihilation and is extinguished. The pursuer in reply argues, on very scanty and unspecific averments and pleas, (a) that her cause of action arose and became vested in her on the death of her husband resulting from the negligent act of the defender committed in breach of the duty of exercising reasonable care; (b) that being thus possessed of that cause of action there becomes available to her a right of action conferred by statute; (c) that, although the time limitation by which that right is qualified would operate in the Courts in England to nullify her right, it does not extinguish her right of action in Scotland because, by the principles of private international law accepted and applied by Scottish Courts, the latter are in use to treat such a time limitation imposed by the lex loci delicti not as extinguishing the liability, but merely as a formality of domestic procedure concerned with the manner in which a remedy must be pursued; and (d) that, accordingly, in a Scottish Court the question whether a liability is time-barred will be determined by the lex fori, which in the circumstances of the present case imposes no such time limitation upon the commencement of a widow's common law actio injuriarum.

In the consideration of the question raised by those opposing arguments as thus briefly summarised, it is desirable to note that in referring to the lex loci delicti to ascertain by what rules the rights and liabilities of the parties to this action are there regulated this Court refers to the internal domestic law of that locus and not to its private international law. The reference is thus to the English rules regulating a purely domestic case similar to the case presently under consideration. If so, it appears to me that decisions pronounced by English Courts affirming and applying their principles of private international law—to the effect that foreign statutes of limitation affecting rights enjoyed in that foreign country, if merely such as to specify a period of time after which such rights cannot be enforced by action there, affect procedure only, and that accordingly such matter of procedure falls to be regulated by the lex fori—are not binding on a Scottish Court. No doubt they are always regarded with respect, and, if the principle on which they are decided is in harmony with the view of private international law accepted by a Scottish Court, they will very readily be followed here. Reverting to the present case I find that the pursuer's attitude is capable of simple statement. She says in effect:—

"I table my cause of action—husband's death caused by defender's fault. I table my right to take an action against him in England—the statutory right. I admit that, if I had obtained jurisdiction against the defender in England and had commenced my action there on 23rd May 1947, I would have been at once non-suited as being out of time, and I could not have enforced liability against the defender. But, although in England the defender would have had a valid defence to my action, the Scottish Court in which I am now suing him is bound by its private international law to apply the law of the forum and to give me a remedy against the defender."

I realise that, in general, foreign law is a fact requiring admission or proof as to its content. In the present case, however, I am disposed to think that, without usurping the functions of an English lawyer, I might consider and give—so far as not admitted—a rational meaning to the relevant terms of the English statute which is the foundation of the pursuer's right of action. The only point relevant to the matter in hand that is not admitted concerns the effect of the time limitation. The pursuer submits that its effect is to regulate the procedure by which her cause of action may be enforced in an English Court by prescribing that it is maintainable by her there only if commenced by an action raised within twelve months after her cause of action has arisen; and that quoad ultra her cause of action remains unaffected in any other forum. For my own part I consider that, inasmuch as the statute which gives the right of action expressly limits the endurance of that right, the right itself and the cause of action which it is designed to enforce both cease to exist at the expiry of the period of endurance where, as here, an action has not been commenced within that period. In other words the effect of the so-called time limitation is to extinguish at its expiry the liability of the defender. If that view be well founded it leads to the dismissal of the pursuer's individual claim for "pecuniary loss."

There is, however, another aspect of the matter which, in my opinion, leads to the same result. If the pursuer is correct in asserting that the statutory time limit attached to her right of action by the lex loci delicti is to be disregarded, it follows that we are being asked not merely to allow the pursuer to come before us depending on foreign law for the foundation of her case, but also to deny to the defender the benefit of the limitation on his liability which that law—in conformity with its own domestic legal rules—would itself impose. If the pursuer had raised her action in Scotland within twelve months of her husband's death (as she might have done) the Scottish Court would, in my opinion, have been bound to entertain her action and to allow her to recover, as against the defender, her pecuniary loss (exclusive of solatium). She gives no explanation why she delayed so long before commencing her action. That the right of a pursuer to obtain damages in Scotland should be more ample than that afforded by the lex loci delicti appears to me prima facie to be unreasonable and contrary to natural justice. It was to the lex loci delicti that the defender was subject at the moment of his negligent act, and it would seem just and equitable that his liability, if any, should by that law be regulated, measured and adjudged. On principle, therefore, I should be unwilling to apply private international law so as to produce a result which I would deprecate as being difficult to reconcile with natural justice unless there is authority binding on this Court which compels me to do so. In my opinion, no such authority has been produced. On the contrary, as long ago as 1877, a case which in its circumstances is indistinguishable from the present was decided by Lord Shand in the Outer House. He dismissed the action. The ratio of the decision was that, as the grounds of action had arisen entirely in England, the rights and liabilities of the parties must be regulated by English law, and that, since by that law the action (when raised in Scotland) was not maintainable (by reason of the expiry of the time limit), it must be dismissed. That decision—Goodman—and Lord Shand's opinion have been subsequently approved by Lord Stormonth Darling and the Lord Justice-Clerk in Rosses; by Lord President Dunedin in Convery; and by Lord Murray in Naftalin. I am therefore for affirming the ratio of Lord Shand's opinion in Goodman and for dismissing the action quoad the pursuer's individual claim for "pecuniary loss."

As regards the pursuer's claim qua executrix I am of opinion that for the reasons stated by the Lord President, with which I agree, that claim also in view of the principle affirmed in the case of Stewart cannot be entertained in this action.

LORD KEITH .—On the question which was mainly argued to us, namely, whether Naftalin v. London, Midland and Scottish Railway Co. was rightly decided, I entertain no doubt. It was, in my opinion, a sound decision in conformity with the principles of private international law as understood in this country. I cannot regard the right to solatium claimed in this action as other than a substantive right, if not peculiar to Scotland, at least unknown in England; and accordingly, the pursuer's claim being in respect of a delict committed in England, she cannot obtain an award of solatium in the Scottish Courts. I find it superfluous to add anything to the grounds of judgment in Naftalin's case.

There remain, however, more difficult and, I think, much more important questions under the other heads of the pursuer's pleadings. It may be that there are deficiencies here in the pleadings which render a complete answer difficult, but the argument raised some broad points of principle which, I think, call for observation.

There were two points in particular raised in argument; first, the effect of the limitation under the Fatal Accidents Acts on the pursuer's right to recover damages in England, in respect of the expiry of twelve months, since the date of the death, without action being raised; second, the effect of the statutory right conferred in England on the pursuer as executrix of the deceased to sue, under the Law Reform (Miscellaneous Provisions) Act, 1934, in respect of the injuria by which the deceased met his death.

It would seem that in England statutory limitations on a right of action are treated as matters of procedure and that in some cases at least they do not destroy the right, but merely bar the remedy of action or set-off. Whether this is the position in the case of the limitation under Lord Campbell's Act I do not know, and there are no averments on the matter made by the pursuer. The defender contents himself with averring that the pursuer "has no right to damages under the Fatal Accidents Acts, 1846 to 1908, either by the law of England or otherwise." But behind this there lies another question. Is it necessary to show an actionable wrong in England at the time the action was raised in Scotland? There was a jus actionis, for at least a period of twelve months, in respect of the deceased's death, assuming it was caused by the fault of the defender, and, although the right of action may be barred after twelve months, the act which brought about his death would, as I conceive it, remain a wrong or an unjustifiable act. There is considerable authority in English law that a foreign tort can found a suit in England if (first) it would have been actionable in England, if committed there; and (second) was not justifiable by the law of the place where it was done. This was the language used by Willes, J., in Phillips v. Eyre, and repeated in subsequent cases, notably by Lord Macnaghten in Carr v. Fracis Times & Co., and Viscount Cave in M'Millan v. Canadian Northern Railway Co. It is also, I think, the foundation for dicta of Lord Kinnear in Evans & Sons v. Stein & Co., and Lord Murray in Naftalin, and has been formulated as Rule 188 by Dicey in his Conflict of Laws. I shall come back to this rule when I come to the next point in the case. But I would observe here that, if the words of Willes, J., be read strictly, the rule is satisfied in this case. His second condition is that "the act must not have been justifiable by the law of the place where it was done." If we have to look at the nature of the act when the act was done, the fact that by lapse of time any right of action emerging from an unjustifiable act is subsequently lost or becomes unenforceable is really irrelevant. In other words, the lex fori looks to the juridical nature of the act done according to the lex loci and not to limitations that may be placed on the right of action by the lex loci. If this view is right, and it would seem to conform to the English view of statutes of limitations (see Phillips v. Eyre and Harris v. Quine ), then the pursuer's claim here for pecuniary loss, as distinct from solatium, is, I think, relevant and sufficiently averred. I have found nothing in the authorities that requires us to look for concurrent rights of action by the lex fori and the lex loci at the date of the raising of the action. Extinction of a right or obligation by the lex loci raises a different question. In tort or delict an act of indemnity or prescription would alone seem to have this effect. And an act of indemnity operative in the locus delicti is not truly an exception because it has retroactive effect making justifiable what was previously unjustifiable. This was the case in Phillips v. Eyre, )and there Willes, J., said (at p. 29):

"As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country; but if the foreign law extinguishes the right it is a bar in this country equally as if the extinguishment had been by a release of the party, or an act of our own Legislature. … So that where an obligation by contract to pay a debt or damages is discharged and avoided by the law of the place where it was made, the accessory right of action in every Court open to the creditor unquestionably falls to the ground. And by strict parity of reasoning, where an obligation, ex delicto, to pay damages is discharged and avoided by the law of the country where it was made, the accessory right of action is in like manner discharged and avoided."

That the act complained of must normally be judged as at the time when it was done is clear if the converse be taken. If, for instance, an act done abroad is not a wrong committed by one person against another at the time it was done according to the lex loci, although a wrong by our law, the fact that by supervenient legislation of the foreign country it later becomes a wrong there would surely not entitle the party claiming to be wronged to raise an action in our Courts.

We are not, of course, bound by the law of England, and I turn now to the law of Scotland. Defender's counsel, in support of his proposition that the present action is not maintainable here unless there is a jus actionis both in Scotland and in England at the date of the raising of the action, professed to find authority in Lord Shand's judgment in the case of Goodman v. London and North Western Railway Co., which he said was approved by the dicta of certain Judges in Rosses v. H. H. Sir Bhagvat Sinhjee, Convery v. Lanarkshire Tramways Co. and Naftalin. I am prepared to accept it that Lord Shand, as one of his grounds of judgment, applying English law for himself, held that the action could not be maintained in Scotland because, at the time it was raised, there was no subsisting right of action in England under Lord Campbell's Act, in respect of the expiry of the twelve month limitation without action raised. He cites no authority in support of this view, and it is perhaps noteworthy that the defenders settled the action for a substantial payment after a reclaiming note was taken against his judgment. But I find no support in the other cases cited by defender's counsel for thinking that the Judges in these cases were expressly approving Lord Shand's view as to the point of time to which the Scottish Courts must look in deciding whether there was an actionable wrong, in the eyes of the lex loci. Questions of extinction or indemnity apart, I can see no reason in principle for looking to any other date than that of the commission of the alleged wrong. To take an illustration with which we are all familiar, under the Public Authorities Protection Act no action shall lie unless it is commenced within six months next after the act, neglect or default complained of, with an extension of time in the case of continuing injury or damage. The policy of the Act has not been noticeable for its welcome by the judiciary, but is it to be suggested that, in an action raised in France for a wrong committed in Scotland to which the Act applies, the French Courts should in accordance with our municipal law apply that Act to a claim raised more than six months after the commission of the wrong? I should hesitate to accept any such principle. In the circumstances of the present case I am not prepared to hold that the pursuer's claim as an individual is irrelevant merely because the time limit fixed by Lord Campbell's Act has expired.

We are not in a position to give judgment on this ground of action at this stage because the matter turns partly on foreign law which has not yet been proved and partly on the proper law to be applied in these Courts on which we have not yet, in my opinion, had a full argument. But prima facie, on a consideration of the principles involved to which I have adverted, I think the facts sufficiently raise a legal issue of great importance and that parties should be allowed a proof of English law so far as relevant to that issue. The question is not, as I see it, whether the pursuer is entitled to damages for pecuniary loss by the law of England, but whether she suffered a wrong by the law of England in respect of which she is entitled to claim damages by the law of Scotland. If it is thought that the pleadings should be amended to raise the issue more clearly, I should be prepared to allow parties an opportunity to do so. If the judgment of Lord Shand in Goodman v. London and North Western Railway Co. may be thought to be a decision contrary to the view I have expressed, then the judgment should, in my opinion, be reconsidered.

I turn now to the pursuer's claim as executrix. This is a claim in respect of a wrong which is actionable in England at the instance of the pursuer as executrix of her husband against whom the wrong is alleged to have been committed. It is said for the defender that the pursuer has no remedy in Scotland because the law of Scotland does not recognise a right of action in an executor in respect of a wrong suffered by the deceased, except in special circumstances which are not said to apply here. This follows from the doctrine of concurring remedies to which I have already referred. Counsel for the defender supported his submission by the high authority of Lord Kinnear in Evans & Sons v. Stein & Co. Lord Kinnear went further than Willes, J., in Phillips v. Eyre, in desiderating an actionable wrong in the country where the wrong was committed. But this is not material in the present case, for the question turns on the first of the conditions stated by Willes, J., that the wrong must be of such a character that it would have been actionable under the lex fori. While this statement has been repeated by other Judges in both England and Scotland in subsequent cases, so far as I can discover the dicta have always been obiter, in the sense that the question in all these cases related not to whether the wrong was a wrong by the lex fori, but whether it was a wrong by the lex loci delicti. The dictum is based on the case The "Halley," and, as I read the decision in that case, the dictum of Willes, J., goes further, or rather imposes a stricter test than that case warrants. The question was whether the "Halley" and her owners were liable in damages in respect of a collision in Belgian or Dutch territorial waters. The vessel was under the charge of a compulsory pilot when the collision happened, but under the foreign law this did not excuse the defendants. By English law, however, in these circumstances no responsibility attached to the ship or her owner for the pilot's fault. Selwyn, L.J., at page 202, stated the question as being "whether an English Court of Justice is bound to apply and enforce that law in a case when, according to its own principles, no wrong has been committed by the defendants and no right of action against them exists." And he concludes, at page 204, "but it is, in their Lordships' opinion, alike contrary to principle and to authority to hold that an English Court of Justice will enforce a foreign municipal law and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed." The case was thus one where no wrong was committed at all by the defendants according to English law, and, if so, the emphasis is on wrong committed rather than on right of action arising. There could be no right of action if there was no wrong. Willes, J., seems to assume a wrong and then requires that it "be of such a character that it would have been actionable if committed in England." Even so the requirement of an actionable wrong by the lex fori has been much criticised (see Cheshire, Private International Law, (3rd ed.) pp. 372–374), and judicial approval of the rule has been characterised by one writer as "blind adherence to a verbal formula without any regard for policies or consequences." Bar (Gillespie's Translation, (2nd ed.) at p. 636) would recognise the lex loci actus as alone controlling the claim to damages for delict. The present case is a typical case where insistence on the double rule enunciated by Willes, J., may work injustice. A wrong has been committed in England against the deceased, and the pursuer as his executrix has a right of action in respect thereof. In Scotland the wrong is also recognised, but by Scots law an executor cannot sue on such a wrong if committed in Scotland unless in special circumstances. There is no case that decides that a foreign executor may not do so in such circumstances as apply here, and there is no authority or principle, in my opinion, that drives us to that result. The fact that the pursuer here is a Scottish executor does not seem to be material. We are not bound to follow English authority, particularly where the principles applied do not seem to be sound.

There does not appear to me to be anything incongruous or contrary to justice in opening our doors to an executor entitled to sue for a wrong by the law of England, although we would exclude an executor suing in respect of a Scottish wrong in similar circumstances. The machinery of action is available. In cases of patrimonial loss an executor can sue according to Scottish law. If the deceased himself has raised action, and possibly even if he has intimated a claim, his executor can pursue the action after his death. The procedure, therefore, of the lex fori is appropriate and effective. It is not on the ground of procedural difficulties that an executor suing in respect of a wrong suffered by a deceased is excluded, but on principles of substantive law. I can find no principle why the pursuer here should be subjected to the substantive law both of England and Scotland, and to do so in many cases would work an injustice. The position might be otherwise if the cause of action were repugnant to public policy. As Professor Cheshire writes (Private International Law, p. 371):

"A liability recognised in the place of wrong should be enforced unless to do so would be utterly repugnant to the distinctive policy of the forum."

I am not, accordingly, prepared to say that the pursuer's claim as executrix is incompetent or irrelevant, and it should, in my opinion, be allowed to proceed.

No difficulty, in my opinion, arises from the fact that this action combines two claims, one by the pursuer as an individual and one as an executrix, nor from the fact that remedies available by the lex loci and the lex fori may not precisely coincide. It is not expected of the lex fori to endeavour to equate its remedy to that of the lex loci. There may be differences in matters of assessment of damages but there the lex fori rules. A father's claim for loss of support by the death of his son as the result of a wrong committed in England was entertained in Naftalin. As regards the claim here by the pursuer as executrix, I see no difficulty in assessing damages as if the claim were one raised by the deceased before his death. I doubt if English law can enter at all into these matters, but it is not necessary at this stage to express an opinion on that point.

LORD PRESIDENT (Cooper).—On 4th March 1946 the deceased, Joseph M'Elroy, sustained fatal injuries in a road accident in England as a result of the alleged fault of the defender. On 23rd May 1947 the pursuer instituted in the Court of Session an action of damages against the defender framed on a pattern of unusual intricacy. She sues in two capacities, concluding as an individual for payment of £2000, and as executrix of her deceased husband for an additional £2000. In her condescendence her case is put alternatively on the assumption that the rights of parties fall to be ascertained by (a) Scots law, and (b) English law. Under Scots law her claim is the familiar widow's claim for solatium and loss of support. Under English law her claim as an individual is for damages for her "pecuniary loss" under the Fatal Accidents Acts, 1846 to 1908; and her claim as executrix is under the Law Reform (Miscellaneous Provisions) Act, 1934, for "funeral expenses and the loss caused in the death of the said Joseph M'Elroy."

The defender met this multiple case by a series of averments and pleas in law, those material for immediate consideration being directed to the contentions:—(i) that the rights of parties fall to be determined by English law as the lex loci delicti; (ii) that the action so far as laid on the Fatal Accidents Acts is not now maintainable by English law; and (iii) that the pursuer has no title to sue as an executrix. The pursuer contented herself with a simple denial as an answer to all these challenges.

In respect of a concession by the defender of liability for funeral expenses and other outlays, the Lord Ordinary granted decree in the pursuer's favour for £40, and quoad ultra dismissed the action. The pursuer now reclaims.

It is a pity that the important legal issues presented in argument had to be raised on pleadings so defective in specification and clarity that I still remain in doubt as to the precise extent and nature of the claims made under the several heads, especially as the pursuer's conclusions and the issue which she has lodged are framed on the basis of demanding £2000 as an individual in addition to £2000 as executrix. But we were not moved to deal summarily with the pleas to the competency or relevancy by condemning the deficiencies of the pleadings as they stand, and forcing the pursuer to amend under pain of dismissal. On the contrary, the defender's attack upon the pursuer's pleadings was only made consequentially upon his argument on the wider legal issues; and to these I now turn.

The pursuer's main effort was directed to discrediting the decision in Naftalin v. London, Midland and Scottish Railway Co. and to reviving the authority of Horn v. North British Railway Co., which was doubted in Naftalin, and not followed. The facts in Naftalin were indistinguishable in material respects from those of this case, and it was there held that the rights of parties fell to be determined by the lex loci delicti; that the right to solatium under Scots law was a substantive and independent jus actionis and not a mere item in a claim of damages; and that, as the claim to solatium was not admitted by the lex loci delicti, it could not be admitted by the lex fori. These conclusions were supported by reasoned opinions in which the matter was reviewed both in principle and on authority, and I consider that these conclusions are sound. I shall not attempt to carry further the effort to formulate in a single rule all the conditions which determine whether or not the Scottish Courts will entertain a claim ex delicto by a pursuer in respect of a wrongful act committed abroad, nor to examine the elusive distinctions arising from the use in varying senses of such terms as "actionable," "justifiable" and "punishable." The principle which I am content to extract from Naftalinand to reaffirm is the negative one that the Scottish Courts will not recognise in such a pursuer any specific jus actionis which is denied to him by the lex loci delicti. In other words, when considering whether the act or omission complained of is "actionable" by the lex loci delicti, the Scottish Courts will not limit the inquiry to the question whether the act or omission is "actionable" in the abstract, but will extend it to the further question—On whom does the lex loci delicticonfer a jus actionis, and for what? This is surely the reasonable view and the only one which will do substantial justice not only to pursuers but also to defenders, whose interests in matters of private international law are too apt to be overlooked. Pursuers should not be encouraged to improve their position vis-à-vis of their opponents by invoking some secondary forum in order to exact compensation for a type of loss which the primary forum would not regard as meriting reparation. Upon any such view the ground and extent of the defender's liability would vary with the forum at the will of the pursuer (cf. Cheshire, Private International Law, (3rd ed.) p. 855).

Mr Walker's powerful argument failed to satisfy me that the decision in Naftalin was wrong, or that the reasoning on which it was based erred in any significant particular, or that anything has occurred since 1933 to affect its validity. To restate the full arguments would be superfluous. I therefore move that Horn should now be formally overruled and Naftalin approved.

Before parting with this branch of the case I desire to add one further point. Much reliance was placed by the pursuer on two similar cases dealing with defamation—M'Larty v. Steele and Machado v. Fontes . We need not concern ourselves with the latter decision except to note the mixed reception which has been accorded to it in the land of its birth (Dicey, Conflict of Laws, (5th ed.) p. 775; Cheshire, op. Cit. 378ff and the references there given). But as regards M'Larty v. Steele, I consider that there is force in the criticism in Glegg on Reparation, (3rd ed.) p. 87, that its underlying assumption was destroyed by the later decision in White v. Mellin; and, in so far as the decision proceeds on general principles of private international law, it will not stand with the ratio accepted in Naftalin. To that extent I consider that M'Larty v. Steele must now be regarded as of no authority. Both M'Larty v. Steele and Horn were decided at a time when the principles of private international law as accepted in Scotland were less developed than they have since become.

It follows that the pursuer's claim to solatium based on Scots law must fail. The right accorded by our law to certain near relatives to recover damages by the actio injuriarum as described in Eisten v. North British Railway Co. (at p. 984) covers not only solatium for wounded feelings but also damages for the loss of support which the deceased afforded to the pursuer, or might in future have afforded. It gives no right to recover for certain other forms of pecuniary loss sustained by the pursuer as a result of the death—Quin v. Greenock and Port Glasgow Tramways . The next question, therefore, is whether the pursuer is entitled to insist on her claim to loss of support.

In Naftalin the attention of the Court was directed wholly to the claim for solatium, and I think that it is implicit in the opinions and explicit in the interlocutor in that case that the claim for loss of support was allowed to proceed. I confess that I have difficulty in satisfying myself precisely what elements could properly enter into the assessment of the claim in such a case, and in particular whether the claim would fall to be assessed as if it were a purely Scottish claim, or whether it would be necessary to take into account the specialties which evidently affect the assessment of the parallel but not identical claim under the Fatal Accidents Acts. We have no judicial knowledge of these specialties, but cases such as Davies v. Powell Duffryn Collieries sufficiently indicate their existence and the unfamiliar results which their application produces. This is a matter on which I reserve my opinion, for the matter can be disposed of on a different view.

The pursuer's claim for loss of support and other pecuniary loss, in so far as arising under English law, depends on the Fatal Accidents Acts; and in any such matter of foreign law the claim must be sufficiently averred as a matter of fact. The pursuer's averment is of the most meagre character. It consists simply of a bare assertion that the pursuer is entitled as an individual to damages for the pecuniary loss she has sustained under these Acts. When we look at these Acts (as we would look at any other written document referred to in pleadings), we find ex facie of them that in England there has been conferred upon a deceased person's representatives, whom failing certain near relatives, a statutory right to recover damages or compensation under prescribed conditions and restrictions. As Lord Murray observed in Naftalin (p. 273), these conditions and restrictions have no place in Scots law. Further, we are entitled to take it from Lord Sumner in Admiralty Commissioners v. S.S. Amerika (at p. 52), that Lord Campbell's Act "provided a new cause of action and did not merely regulate or enlarge an old one," there being no such cause of action at common law. Lord Campbell's Act evidently gave England an approximatecounterpart of the Scottish actio injuriarum, but the English jus actionis is not given to the same people, nor on the same terms. "The remedies under the English Act pursued a course of their own" (per Lord Wright in Stewart v. London, Midland and Scottish Railway Co., at p. 46). In that situation the defender's counter averment is that by the operation of section 3 of the Act of 1846 the pursuer has no right to damages under the Fatal Accidents Acts by the law of England, no action having been raised within a year of the death. Especially when confronted by such a challenge, it was, in my view, the plain duty of the pursuer to meet it, and she has not even yet attempted to do so. She might conceivably have averred and offered to prove that by the law of England section 3 of the Act of 1846 does not import an inherent qualification of the new statutory right by virtue of which that right is extinguished if not enforced within the year, but merely prescribes a limitation of the remedy, having no effect except by the lex fori and in English Courts. Whether she could have so averred with any hope of success I do not know, though it would certainly be odd if section 3 could be evaded by the simple expedient of founding jurisdiction elsewhere than in England. But the important point is that no such averment has been made, and its absence is, in my view, a fatal omission. A pursuer who sues not in the forum delicti but in another forum, and there seeks a remedy founded on foreign law, must make a sufficiently specific and relevant case as to her rights by that foreign law, and this pursuer has, in my view, failed to do so. The matter may be tested by considering the next step which would require to be taken by us if we accepted Mr Walker's argument on this head. That next step would involve remitting to probation, inter alia, the issue of English law, upon which experts in that system would have to be adduced as witnesses. On the record as it stands, the main intelligible issue of foreign law is not properly raised at all and the proof would lead nowhere.

That is sufficient for the disposal of this branch of the case, and it is unnecessary for me to deal with the defender's argument that on the pursuer's averments the same jus actionis is not now concurrently available both by the lex fori and the lex loci delicti. Equally I find it unnecessary to express concurrence with or dissent from the decision of Lord Shand in Goodman. In that case the Scottish action was not raised until three years after the accident; and Lord Shand held that, as the action was not then maintainable by the law of England, it could not be maintainable in Scotland. It is not clear from the imperfect report whether or not the English law was a matter of admission, or whether Lord Shand construed the Act of 1846, and particularly the effect of section 3, for himself. While I have no disposition to disagree with Lord Shand's conclusion or his line of reasoning, I am reluctant to appear to assert any right in a Scottish Court to determine for itself the construction of an English Act as a matter of law. If in Goodman the English law was admitted, I respectfully concur with the decision, which was referred to with approval in Ross, Convery and Naftalin.

It remains to dispose of the pursuer's claim as executrix under the Law Reform (Miscellaneous Provisions) Act, 1934. The averment merely is that under that Act the pursuer as executrix is entitled to "damages … in respect of the funeral expenses and the loss caused in the death of the said Joseph M'Elroy." As the funeral expenses and outlays have been conceded, I assume that the major remaining item can only be a claim for loss of expectation of life. I regard it as more than doubtful whether the combination of this representative claim with the widow's individual claim in a single action is technically competent, for it is a sheer accident that in this case the widow happens to be executrix and sole beneficiary. But I do not proceed on that ground. At this point there appears to me to be complete disparity between the lex fori and the lex loci delicti.

In Stewart authoritative confirmation was given to the rule of Scots law that all right of action in respect of personal injuries due to negligence dies with the injured person unless he has instituted legal proceedings before his death, and therefore that his executor has no title to sue either ex delicto or ex contractu, the jus actionis being essentially personal to the victim. If we now read the pursuer's averment of foreign law and particularly the Act of 1934 to which she refers us, it is plain that what that Act does is, in the words of Lord Russell of Killowen in Rose v. Ford (at p. 840), not to "create any cause of action in any one for damages resulting from death," but "to preserve, notwithstanding the death of a person, all causes of action vested in that person when he died." So to say is not to construe the English Act as a matter of law, but simply to read it as part of the pursuer's averments of fact.

I find it impossible to equate the two legal systems in relation to this matter. "English law has had a different starting point and a different development. A comparison of the two systems shows how indigenous and peculiar to each system is the form taken by the rule in either country" (per Lord Wright in Stewart, at p. 45). In particular, as the pursuer in her capacity of executrix has no jus actionis in respect of the act complained of under Scots law, it is of no avail to her to allege that she would have such a jus actionis under English law. As executrix the pursuer sues as representing the deceased, and in a question with the deceased the defender's alleged negligence was not "actionable" by Scots law. It is not for us to invent a new jus actionis to meet the needs of any pursuer who chooses to come into the Scottish Courts complaining that she has suffered loss by an act committed abroad which would afford no right of action to her if committed in Scotland (cf. Lord Kinnear in Evans, at p. 71). This head of the claim accordingly falls to be dismissed.

In proposing as I do that we should refuse this reclaiming motion, I do not consider that any hardship is being inflicted upon persons in the position of this pursuer, or that we are taking any but the inevitable course. If a person suffers a wrong in a foreign country, the primary Court from which to seek redress is the Court of that country, which will presumably provide the remedy which the lex loci delictiaffords and which knows how to do so. Difficulties may of course arise in founding jurisdiction against the defender in the foreign forum, but I should consider that risk a slight one where the foreign forum is England. In any event the risk of being unable to found jurisdiction against a defender is a risk which every pursuer must face, irrespective of the locus delicti. But, if a pursuer chooses to sue not in the primary Court but in some other Court of his own selection, he has only himself to thank if he finds himself encumbered by difficulties which (as in this case) prove insuperable. Moreover, it is useless to minimise the practical difficulties which would arise were we to entertain an action such as this, and attempt to carry it to a conclusion. It would be necessary for a Scottish Judge, and perhaps a Scottish jury, to assess the pursuer's claim in conformity with the evidence, perhaps conflicting, of expertwitnesses on a branch of English law of which we have no judicial knowledge, with a view to giving for the first time in the history of our Courts remedies unknown to the law of Scotland. It is difficult to imagine a proceeding more inconvenient or less calculated to do justice to either party.

In the whole matter I would adhere to the Lord Ordinary's interlocutor with this variation that it is sufficient to sustain the second plea in law for the defender. While I have rested my conclusions on narrow grounds, I am not to be taken as dissenting from the wider views expressed by my colleagues who have reached a like result.