Harding v. Wealands

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,

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.

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).

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".

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.

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 country and not that of New South Wales is to be applied by the courts of this jurisdiction to the calculation of the Appellant's damages. This is despite the fact that the Appellant's accident occurred and his injuries were caused as the result of negligence of the Respondent in New South Wales.

However, I unfortunately differ from Lord Carswell as to his reasoning for relying on Pepper v Hart. The word "procedure" is frequently used in contrast to "substance" in order to distinguish between questions of procedural law and substantive law. Thus, unsurprisingly it is used together with the word "practice" in this context in section 1 and Schedule 1 of the Civil…

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