1. I am in full agreement with the opinions of my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry, which I have had the advantage of reading in draft. For the reasons which they give, I also would allow the appeal and restore the order of Elias J.

LORD WOOLF

My Lords,

2. I am able to confine my opinion to a single issue because I agree

with the opinions of Lord Hoffmann and Lord Rodger of Earlsferry
which I have read in draft.

3. I have also had the advantage of reading the opinion of Lord Carswell in draft. While Lord Carswell agrees with Lord Hoffmann’s and Lord Rodger’s “reasons” and “conclusions”, he does so subject to “one slight qualification” (paragraph 79).

4. Lord Carswell makes his qualification because of his understanding of what is the natural meaning of the word “procedure” (paragraph 83). As to this, Lord Carswell is in agreement with the judgments of Arden LJ and Sir William Aldous in the Court of Appeal. Arden LJ accepted that “damages are not naturally regarded as procedure” (paragraph 58) and Sir William suggests that the natural meaning of “procedure” is “the mode or rules used to govern and regulate the conduct of the court’s proceedings” (paragraph 86). Lord Carswell adds, however, that in the field of private international law the word “procedure” has a “special meaning” which is wider than that which might be regarded as “natural”.

5. Lord Carswell, having adopted this approach to the natural meaning of procedure, treats the “special meaning” as justifying reliance on Pepper v Hart [1993] AC 593 to resolve the significant issue of construction at the heart of this appeal.

6. I am in agreement with Lord Carswell that, if it is necessary to rely on Pepper v Hart to decide the meaning of “procedure” in section 14(3) (b) of the Private International Law (Miscellaneous Provisions) Act 1995, the evidence of what was said in Parliament by the then Lord Chancellor conclusively resolves this issue in the Appellant’s favour. Lord Carswell rightly points out that this is an outstanding example of a case where the evidence as to what was said during the passage of the legislation through the Parliamentary process makes it abundantly clear that it was the intention of Parliament by enacting section 14(3)(b) that the law of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harding v Wealands

Details

AGLC: Harding v Wealands [2006] UKHL 32
Case: [2006] UKHL 32
Decision Date: 5 July 2006

CaseChat Overview and Summary

Harding v Wealands is a case in which the House of Lords determined the applicable law for assessing damages in a personal injury claim arising from a motor accident in New South Wales, Australia. The key issue was whether damages for personal injury caused by negligent driving should be calculated according to the applicable law selected under Part III of the Private International Law (Miscellaneous Provisions) Act 1995 or whether it was a question of procedure to be determined in accordance with English law. The Court of Appeal had held, by a majority, that the applicable law was the law of New South Wales. However, the House of Lords, by a unanimous decision, allowed the appeal and restored the judgment of Elias J, holding that the assessment of damages was a matter of procedure governed by English law. The court considered the distinction between substantive law, which determines liability, and procedural law, which governs the assessment of damages, and concluded that the provisions of the Motor Accidents Compensation Act 1999 of New South Wales, which imposed limitations on the amount of damages recoverable, were procedural and thus inapplicable by an English court. The House of Lords also relied on the statement made by the Lord Chancellor during the passage of the bill, which clearly indicated Parliament's intention to preserve the traditional rule that the assessment of damages was governed by the law of the forum.

Orders