Case No: 2000 Folio No. 362
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st November 2001
BASE METAL TRADING LIMITED | Claimant | |
- and - | ||
RUSLAN BORISOVICH SHAMURIN | Defendant |
Pursuant to the Practice Statement issued by the Master of the Rolls on 9th July 1990 I hereby certify that the attached text records my judgment in this matter and direct that no further record or transcript of the same need be made.
Mr Justice Moore-Bick:
The nature of the claimant’s case
Liability as a director
Liability as an employee
“2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed
(a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or
(b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated;
unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.”
The claim in tort
“ Rule 203 - (1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both
(a) actionable as a tort according to English law, or in other words, is an act which, if done in England, would be a tort; and
(b) actionable according to the law of the foreign country where it was done.
(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.”
This formulation was approved by the Privy Council in Red Sea Insurance v. Bouygues S.A [1995] 1 A.C. 190.
“In our judgment, two points thus emerge fairly clearly from those cases. First, in deciding whether an alleged tort has been committed in this country or in some other country, our courts will look back over the series of events constituting it and ask themselves "Where in substance did this cause of action arise?" Secondly, in answering this question, the courts will apply exclusively English law.”
And a little later at page 446C he said
“In our judgment, in double locality cases our courts should first consider whether, by reference exclusively to English law, it can properly be said that a tort has been committed within the jurisdiction of our courts. In answering this question, they should apply the now well familiar "substance" test previously applied in such cases as Distillers Co. (Biochemicals) Ltd v Thompson [1971] AC 458, Castree v E.R. Squibb & Sons Ltd [1980] 1 W.L.R. 1248 and Cordoba Shipping Co. Ltd v National State Bank, Elizabeth, New Jersey [1984] 2 Lloyd's Rep. 91.”