Volume 42 | Number 2 Spring 2007
Choice of Law for Quantification of Damages: A Judgment of the House of Lords Makes a Bad Rule Worse
IV. Conclusion
Contrary to the House of Lords’ holding in Harding, the Private International Law Act 1995 did not compel depriving the defendant of statutory limits on damages under the law of the place of wrong. If the result in Harding is correct it is because, in the wording of the Act, it was “substantially more appropriate” to apply English law because of the relationship between the parties and their residence in England. The real harm of the House of Lords decision is that it makes it less likely that courts will change the standard rule that characterizes quantification of damages as procedural, and therefore determined by forum criteria. This standard rule should change to accord with a functional view of “procedural” in the context of choice of law. This functional view would preclude the procedural label for any rule that is likely to affect the result in a manner that would invite forum shopping unless it would be unreasonably difficult for local lawyers and judges to apply foreign law to the issue. More undesirable still is that Harding v. Wealands extends the procedural characterization of quantification of damages to the one area where U.S. and Australian courts have had the good sense not to apply it—statutory limits on recovery.
Fortunately, Harding may have a short life in the United Kingdom. A draft Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations, referred to as “Rome II,” which seems ready for enactment in 2007, includes among the issues governed by the Regulation’s choice-of-law rules “the existence, the nature and the assessment of damage or the remedy claimed.”86 This language appears broad enough to include quantification of damages. If so, this would constitute a desirable reversal of the standard rule treating quantification of damages as a procedural matter to be resolved under forum standards.87 The United Kingdom has agreed to be bound by Rome II.88
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Footnotes
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