Are cumulative causes of action permissible under the common law conflicts principles Essay Example

argues that a claimant has no choice to choose the applicable law, as this is determined by the lex fori-a fairly circuitous argument when one considers the English position that the lex fori does offer such a choice and the claimant is therefore entitled to such choice. North's analysis doesn't get us anywhere in terms of asking the broader question of whether such choice is to be granted in the first place (see Briggs' criticism in this regard in 2003 LMCLQ).The lex fori in the context of England does permit the pleading of cumulative causes of action (See Henderson; however for an opposite view, see Tai Hing). Therefore in accordance with Otto Kahn-Freud's view, one could argue in favour of synchronising the English conflicts position with the domestic position, so as to strengthen the internal consistency of common law rules.The main authority for the availability of concurrent causes of action in common law conflicts rules is Coupland.

In an action by an employee claiming causes of action in both tort and contract, Robert Goff stated that a claimant may advance his claim in either tort or contract, as he wishes. However, the judgment did not elaborate on why this ought to be so and did not deal with any competing arguments in this regard. Much on the same lines as Coupland, there have been Canadian (Mclean v Pettigrew) and Australian (John Pfeiffer) judgements to this effect. However, just as in Coupland, none of these cases dealt extensively with the competing arguments, but at best, could be said to have acknowledged the availability of such concurrent causes in passing.Nevertheless, from all the above, it can be

seen that there is no common law authority that has challenged the proposition that under common law, a claimant may urge cumulative causes of action, subject of course to the rule against double recovery (which rule appears to stem from public policy).The European instruments:The main impetus for starting to question the role of concurrency with common law conflicts principles has been the advent of European legislative instruments such as Council Regulation 44/2001 (Regulation) and the Rome Convention (RC).

In the context of the Regulation, the ECJ has been very hostile to concurrency. Kalfelis which stated that a claim couldn't be both a tort and a contract for the purposes of the Regulation is the best example of this attitude. Source v TUV Rheinland demonstrates that claims that are based on the same underlying obligation would be clubbed under one head.However, as to whether these watertight compartments created under the Regulation would apply when determining the choice of law as well is a debatable issue. After all, the Advocate General in Jacob Handte was careful enough to point out that despite the strict categorisation under the Regulation, a court was then free to categorise the issues differently when it reached the "choice of law" stage. More importantly, it is unclear as to the extent to which the ruling under the Regulation would be adhered to when it comes to interpreting the Rome Convention.

Possibility of such adherence is strongly inferred from the fact that while drafting these two instruments, it was stated that the terms of one could be used to interpret the other. This is more so as even the Rome Convention is transitioning to the

status of a "Council Regulation". This philosophy is reflected in Arcado v Havilland as well, where a definition in the Rome Convention was used to interpret Article 5(1) of the Regulation.However the judgement of Moore Bick J in Base Metal Trading Metals seems to cast doubt on this view. The learned judge rejected the conclusion that the ECJ's approach in Kalfelis virtually eroded the possibility of accumulation within the context of the Rome Convention.

The judges view may perhaps partly stem from a realisation that Kalfelis related to "special jurisdiction" principles under the Regulation- the fact that these provisions derogated from the Domiciliary Jurisdiction principle under Article 2 meant that they ought to be interpreted restrictively (See Marinari and Dumez).No doubt, the underlying philosophies of these two instruments may be different, but they do have commonalities as well, the primary one being the attainment of uniform results within the community (See Article 18 of the Rome Convention). Having said this, the desire for uniformity within the EU cannot be overstated, at least in the context of the Rome Convention, as there is one important limitation. Unlike the Regulation which at some level is targeted towards member states, the Rome Convention has no such tall claim-it applies irrespective of who the parties and whether or not the dispute involves member states.These European instruments have made deep inroads into the domestic conflicts rules of several European nations.

As I will show below, the very advent of the Rome Convention casts doubt on whether the common law can continue with its traditional characterisation technique. Therefore, one has to accept Mance's invitation to ask how the traditional approach to

characterization should yield in favour of choosing a law that is appropriate in the context of these instruments. The question then becomes: how should common law yield in the face of the convention?Mandatory Nature and Material Scope of the Rome Convention:One of the ways to begin answering the above question is by asking the question: Is the Rome Convention to be mandatorily applied? If so, the flexibility of characterising an alternate cause of action to be governed by a separate law is lost, at least to the extent to which the convention mandatorily applies.The answer may perhaps be found in Article 1 (1) which provides that the rules 'shall" apply to all contracts. However Briggs questions this, arguing that despite similar wording in the Regulation, Re Harrods held that the regulation doesn't apply to jurisdictional issues between member states and non-member states, and in this way cast a doubt on whether the Regulation applies mandatorily. However I think that the ECJ would be hostile to the view in Re Harrods, -a likely interpretation would favour the compulsory application of the convention.

The second question, and one that is intricately related to the first is as to whether the above characterisation issue would fall within the material scope of the Rome Convention. The answer to this may be gleaned from Article 18 of the Rome Convention. Article 18 stresses the importance of "uniformity" in applying the Rome Convention and this would therefore strengthen the argument in favour of precluding characterisation by common law. If parties have entered into a contractual relationship and the Rome Convention is to govern this, the non English party may indeed find it

strange that an alternative cause of action could be pleaded, making the Rome Convention inapplicable.

This desire to create uniformity within the Community and as Briggs points out, a "free market for judgements" ought to mean that an autonomous approach be instilled in domestic approaches to characterisation.This approach is amply reflected in Raifessin, a case involving the assignment of proceeds of a marine insurance policy and the question there was as to whether this was a contractual issue or an issue relating to property. Mance LJ objected to a characterisation as property in accordance with domestic law and held that Article 12 of the Rome Convention applied to such a situation.An answer could also be found from "Rome II", now a term of art used to refer to the preparations for a Draft convention that would govern non-contractual obligations. Rome II would presumably help chalk out the clear boundaries of these non-contractual obligations, in much the same way as Article 5(3) of the Regulation.

As stated earlier, the boundaries in the context of the Regulation were clearly drawn out by Kalfelis and by Source v TUV Rheinland.The basic thrust of the argument supporting an autonomous approach towards characterisation and the consequent mandatory application of the Rome Convention would rely in large part on the principle that since Parliament sought to enact the Rome Convention, it is not for the judiciary to now contradict the Parliaments intention. Any other approach would have catastrophical consequences for uniformity and would also prejudice the legitimate expectations of the parties, especially where there is an express contractual choice law.This autonomous approach to characterisation would also favour the characterisation of certain

categories which are yet to take firm root in conflicts choice rules within the broader ambit of contracts.

Thus for example, cases involving breach of fiduciary obligations could be made to easily fit within the "contracts" box. However for problems associated with this, especially in the context of restitutionary obligations that stem for void contracts, see Baring Brothers.Of course, fitting other categories within "contracts" may become extremely tortuous (no pun intended) when the alternative cause of action is one in tort. The fact that any such tort ought to be governed by the law governing the contract, as this would have been the intention of the parties who drew up the contract finds support in Sayers. However it is unclear as to whether Sayers would continue to apply after the 1995 act, which asks for connections with "countries" and not with "laws", in order that section 12 may replace section 11 as the applicable law.

Briggs therefore opines that the Rome Convention should apply in these cases. I couldn't agree with him more, though I am of the view that even otherwise (i.e. had section 12 dictated a result similar to Sayers, this ought to have been so)-since the Rome Convention mandatorily applies and it is the contract that will primarily govern the situation.Of course, it would certainly help if the autonomous interpretation under the Rome Convention mandated the widest interpretation of choice of law clauses to include a wide category of disputes (in much the same way that English law does with respect to a choice of law clause-see Pioneer Container).Other overlapping areas:As noted above, most compelling arguments against providing for the possibility of

"accumulation" within the English conflicts rules stems from the applicability of the European instruments, such as the Regulation and the Rome Convention.

However I will now argue that in the context of accumulation that invol,ves causes of actions with no contractual element whatsoever (e.g. torts, equitable obligations, property etc), there is no compelling reason to change the common law approach that permits accumulation.The same impetus that calls for an autonomous approach to characterisation does not exist here-as English law itself is struggling to determine their exact status. Far from knowing how they would categorise it themselves, it is quite unreasonable to expect an autonomous characterisation. Of course, in so far as they can be accommodated within pre-existing categories, well and good.

In so far as torts are concerned, these must be fitted into torts not because one is anathemical to a pleading of concurrent causes of action-but because these categories as independent ones-their status is still unclear and it would make ones life easier, if one fitted them within existing categories.Here again, one wonders as to why in the light of this possibility, some scholars still maintain that they are separate categories, albeit governed by the same law that would govern the category into which they have been fused. Wouldn't it be far simpler to not have them as separate categories at all? However in so far as these are well-established separate categories within the English conflicts rules (eg property), it is unreasonable to now expect an English court to bar the pleading of an cumulative cause of action only because an autonomous approach has to be taken. In the context of the Rome Convention,

we do have legislation and the ECJ sitting on top to tell us as to what this autonomous interpretation is. But, till such time as we have a Rome II and Rome II tries to fit in all non-contracual obligations, leaving us at the end of the day with merely two categories (contractual and non-contractual), the case for carrying on the way we are is a strong one.Thus for example, were the dispute hypothetically to involve an issue in tort and property, English conflicts law still ought to permit the party to plead alternative causes of action.

Briggs argues that where there is a fiduciary duty, it should be characterised as a contract as well. But this goes against the basic grain of his argument that Rome Convention provides the basic impetus for propelling us to an argument that . If a non English party is surprised at not having the RC apply in a domestic context when it ought to, he is equally taken aback when he is informed that it applies (though reflexively), to a situation not strictly governed by it. No doubt, the RC only mandates its application and not its non-application-but that is not a valid justification that would provide a good enough rationale for this exercise. If it hasn't been able to establish the nature of the category-but it shouldn't distort the autonomous approach under the RC to so hold.Conclusion:To conclude, I would like to state that the case for limiting the scope of parties to plead concurrent causes of action is strongest when the matter involves a contract and is governed by the Rome Convention or is at the jurisdiction

stage and the taking of jurisdiction is governed by the regulation.

However in other contexts, the arguments for straying away from English domestic position that permits such concurrence is not a strong one-at least not unless these areas come to Europeanised as well, such as the Rome II endeavour.There are arguments that permitting a claimant to plead cumulative causes of action would unfairly prejudice the defendant, who has no say in this. However in the same vein, the commentators also argue that such accumulation should be permissible T when English domestic law is the lex causes chosen after the choice of law stage. One is tempted to ask-is this not unfair in the domestic context as well-or the fact that it is domestic gives it a flavour of fairness.

Maybe if we question the applicability of this discretion within the context of English domestic law, under which system this right is now fairly well established, we could find a better justification for any unfairness, if any, in this trend.At the end of the day, I couldn't agree more with Briggs, who notes in relation to the current state of affairs notes that "it is a question of where and at what point as distinct from whether at all accumulation is permissible."