Morin v Bonhams & Brooks Ltd. & Anor

Under section 11(2)(c) of the Private International Law (Miscellaneous Provisions) Act 1995, where a tort’s elements occur in more than one country, the court must identify the legal elements of the tort and assess their significance. The governing law is that of the country where the most significant element or elements occurred.

In negligent misstatement, reliance and loss may form a continuum. They must be assessed overall. A bidder’s presence and successful bid abroad, together with the resulting commitment to buy and pay there, may outweigh an earlier misstatement received in England and consequential losses incurred there. The intrinsic nature of tort elements matters under section 11; the closeness of their connection with a country is relevant under section 12.

Mr Morin bought a Ferrari at a Monaco auction after receiving an English catalogue which inaccurately stated its mileage. He alleged negligent misstatement against the Monaco auction company and its English parent. He sought permission to serve the Monaco company out of the jurisdiction and pursued proceedings against the English company as a possible joint tortfeasor.

The deputy judge held that Monegasque law governed the claim against the Monaco company, that the claim was properly arguable, but that Monaco was the appropriate forum. He rejected a properly maintainable claim against the English company and set aside service. The central issue on appeal was the applicable law under the Private International Law (Miscellaneous Provisions) Act 1995.

Lord Justice Mance gave the leading judgment. Lord Justice Keene and the President agreed.

1. Disposition. The appeal and the cross-appeal were dismissed.
2. Applicable law. Section 9(2) of the Private International Law (Miscellaneous Provisions) Act 1995 required the claims to be characterised as tort claims under English law, although the claim against the Monaco company might be contractual under Monegasque law. Under section 11(2)(c), the court had to identify all the legal elements constituting the tort and make a value judgment as to their significance. The applicable law was that of the country in which the most significant element or elements occurred. Earlier authorities concerning the former Rules of Court did not provide a controlling test for the new statutory wording. The caution expressed in Protea Leasing Ltd. v. Royal Air Cambodge Ltd [2002] EWHC 2731 (Comm) was approved.
3. Application. The alleged misstatement was made through a catalogue received in England, but reliance and loss formed a continuum. The most significant reliance occurred when Mr Morin attended and successfully bid in Monaco. His resulting commitment to buy the car and pay the price and premium there represented the major elements of both reliance and loss. The tort was therefore governed by Monegasque law. An adverse contractual commitment could amount to actionable loss before actual expenditure, applying Forster v. Outred [1982] 1 WLR 86.
4. Section 12 and other issues. It was unnecessary to decide whether the choice-of-law and jurisdiction provisions were connecting factors under section 12. Construed as a whole, clause 9.1 would have embraced a catalogue negligent-misstatement claim. The deputy judge’s view that an English-law duty of care remained arguable was obiter. Mance LJ also considered that a joint-tortfeasor claim against the English company might have been arguable where the companies were involved in a common venture, but this was conditional and unnecessary to the result. Monaco remained the appropriate forum for all claims.
5. Affidavit errors. The judge was entitled to excuse two inadvertent misleading statements in the original affidavit because they were identified during the application and had conferred no substantial advantage. That exercise of discretion was unassailable.

1. Court of Appeal (Civil Division). By [2003] EWCA Civ 1802, the appeal and cross-appeal were dismissed.
2. Queen’s Bench Division, Commercial Court. The deputy judge held that Monegasque law governed the claim against BBM, refused permission to serve BBM out of the jurisdiction, rejected a properly maintainable claim against BBL, and set aside service on BBL.