''Phillips v Eyre'' (1870) LR 6 QB 1 is an English decision on the
conflict of laws in
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
. The Court developed a two limbed test for determining whether a tort occurring outside of the court's jurisdiction can be actionable.
In time this came to be referred to as the "dual-actionability test" (or "
double actionability test").
Facts
Edward John Eyre
Edward John Eyre (5 August 181530 November 1901) was an English land explorer of the Australian continent, colonial administrator, and Governor of Jamaica.
Early life
Eyre was born in Whipsnade, Bedfordshire, shortly before his family moved t ...
had been the
governor of Jamaica during the
Morant Bay Rebellion
The Morant Bay Rebellion (11 October 1865) began with a protest march to the courthouse by hundreds of people led by preacher Paul Bogle in Morant Bay, Jamaica. Some were armed with sticks and stones. After seven men were shot and killed by th ...
. As governor he ordered a forceful response, which led to the deaths of numerous Jamaicans and the arrest and the summary execution of various political figures, whom Eyre believed to be instigators of the uprising. At the end of his term as governor, the colonial assembly had passed an Act of Indemnity covering all acts done in good faith to suppress the rebellion after the proclamation of
martial law
Martial law is the imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to an emergency where civil forces are overwhelmed, or in an occupied territory.
Use
Marti ...
.
When he returned to England, several Jamaicans sued him for
trespass to the person
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding, ...
and
false imprisonment
False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is ...
in the Courts of England.
Peter Handford described the background to the case as follows:
The particular activist concerned was
George William Gordon
George William Gordon (1820 – 23 October 1865) was a wealthy mixed-race Jamaican businessman, magistrate and politician, one of two representatives to the Assembly from St. Thomas-in-the-East parish. He was a leading critic of the colonia ...
, a mixed-race member of the local assembly. Bad blood existed between Eyre and Gordon before the rebellion.
Having had Gordon and William Bogle, the brother of
Paul Bogle
Paul Bogle (1822– 24 October 1865)Dugdale-Pointon, T. Military History Encyclopedia good on the Web, 22 September 2008. was a Jamaican Baptist deacon and activist. He is a National Hero of Jamaica. He was a leader of the 1865 Morant Bay pr ...
, the main leader in the revolt, arrested on suspicion of
treason
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
, both were tried under martial law and then
summarily executed
A summary execution is an execution in which a person is accused of a crime and immediately killed without the benefit of a full and fair trial. Executions as the result of summary justice (such as a drumhead court-martial) are sometimes include ...
within two days. The entire suppression of the rebellion was undoubtedly extremely violent. Some 439 people were killed by British forces, a further 600 odd were
flogged
Flagellation (Latin , 'whip'), flogging or whipping is the act of beating the human body with special implements such as whips, Birching, rods, Switch (rod), switches, the cat o' nine tails, the sjambok, the knout, etc. Typically, flogging ...
and about 1000 houses burned down. Further, evidence showed that some of the British officers treated the task as "hunting sport".
Although most contemporary accounts seem to blame specific British military officers (under the command of General
Luke O'Connor), rather than Eyre, sensational reporting of both the rebellion and its bloody suppression made Eyre a controversial figure in Britain. That came to be known as the "Jamaica Question", which essentially boiled down to the question of whether Eyre to be regarded as a hero, who had fulfilled his duties as governor in suppressing the rebellion and saving the white population of Jamaica from massacre, or a murderer, who should be prosecuted and held accountable for his crimes. Attempt to bring criminal proceedings against Eyre failed and so the various activists tried again bringing a civil suit.
[Hanford, at page 826.] The activists referred to themselves as the "
Jamaica Committee
The Jamaica Committee was a group set up in Great Britain in 1865, which called for Edward Eyre, Governor of Jamaica, to be tried for his excesses in suppressing the Morant Bay rebellion of 1865. More radical members of the Committee wanted him ...
" and included liberal thinkers like
John Bright
John Bright (16 November 1811 – 27 March 1889) was a British Radical and Liberal statesman, one of the greatest orators of his generation and a promoter of free trade policies.
A Quaker, Bright is most famous for battling the Corn La ...
,
Charles Buxton
Charles Buxton (18 November 1822 – 10 August 1871) was an English brewer, philanthropist, writer and member of Parliament.
Personal life and architectural legacy
Buxton was born on 18 November 1822 in Cromer, Norfolk, the third son of Sir Tho ...
,
Peter Alfred Taylor
Peter Alfred Taylor (30 July 1819 – 20 December 1891) was a British politician, anti-vaccinationist and radical.
Biography
Taylor was born in London. He was the son of another Peter Alfred Taylor, a silk merchant, and the nephew of Samuel ...
,
John Stuart Mill,
Thomas Hughes
Thomas Hughes (20 October 182222 March 1896) was an English lawyer, judge, politician and author. He is most famous for his novel ''Tom Brown's School Days'' (1857), a semi-autobiographical work set at Rugby School, which Hughes had attended. ...
,
Charles Darwin
Charles Robert Darwin ( ; 12 February 1809 – 19 April 1882) was an English naturalist, geologist, and biologist, widely known for his contributions to evolutionary biology. His proposition that all species of life have descended ...
,
Thomas Huxley
Thomas Henry Huxley (4 May 1825 – 29 June 1895) was an English biologist and anthropologist specialising in comparative anatomy. He has become known as "Darwin's Bulldog" for his advocacy of Charles Darwin's theory of evolution.
The stor ...
and
Goldwin Smith.
Judgment
Exceptionally, the case was heard by a bench of six judges.
Willes J gave the decision of the court.
Curiously, much of the case was dedicated not to the double actionability rule for which it would later be cited, but to argument upon whether (i) a law that was retrospective in nature was repugnant to natural justice and (ii) whether the law was defective as a matter of procedure as the Governor had passed a statute into law in respect of which he had a direct
conflict of interest. The findings on double actionability are relegated to a few short passages near the end.
The Court held that Eyre could not be sued for his conduct in Jamaica. To bring an action the claimant must satisfy two requirements. Firstly, the alleged conduct must "be of such a character that it would have been actionable if it had been committed" in the local jurisdiction. Secondly, "the act must not have been justifiable by the law of the place where it was done." That is, it must be non-justifiable at the ''
lex loci actus''.
The Act that Eyre passed just before leaving caused his actions to be found to be justifiable by the law of Jamaica and thus he could not be actionable in England.
Significance
One of the especially-contentious parts of Eyre's conduct was the fact that the law he enacted was meant to cover all acts he had already done, which made ''
de facto
''De facto'' ( ; , "in fact") describes practices that exist in reality, whether or not they are officially recognized by laws or other formal norms. It is commonly used to refer to what happens in practice, in contrast with ''de jure'' ("by la ...
'' powers ''
de jure
In law and government, ''de jure'' ( ; , "by law") describes practices that are legally recognized, regardless of whether the practice exists in reality. In contrast, ("in fact") describes situations that exist in reality, even if not legally ...
''. here is a presumption in English law against retrospective effect, and
Willes J, who gave the judgment, noted, "The court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication that such was the intention of the legislature". It was held in that case that Eyre's intention was clear.
The double actionability rule has now largely been abrogated in English law pursuant to the
Private International Law (Miscellaneous Provisions) Act 1995, but it still applies to
defamation claims. However, the case remains good law in a number of other
common law jurisdictions
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
.
See also
*''
Boys v Chaplin''
971
Year 971 ( CMLXXI) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men) ...
AC 356
*
Colin Blackburn, Baron Blackburn
Colin Blackburn, Baron Blackburn, (18 May 1813 – 8 January 1896) was a Scottish judge who is remembered as one of the greatest exponents of the common law. At one point, Blackburn was a judge in the Court of Exchequer Chamber. On 16 October ...
Notes
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1870 in case law
1870 in British law
English conflict of laws case law
English tort case law
Court of King's Bench (England) cases