Mitchell v McCulloch [1975] ScotCS CSOH_4 (21 July 1975)

Mitchell v McCulloch [1975] ScotCS CSOH_4 (21 July 1975)

A head of damage not recognised by the lex fori (Scots law) is not recoverable in a Scottish court, even if recognised by the lex loci delicti (Bahamian law). The lex loci delicti may cut down or limit a right to damages otherwise exigible in the forum, but cannot create or extend a right not recognised by the forum.

Citation
[1975] ScotCS CSOH_4
Parties
Pursuer: Mitchell; Defender: M'Cullogh
Jurisdiction
Scotland
Judgment Date
21 July 1975
Procedural Posture
Delict (personal Injury, Damages) / Interlocutory (debate on Relevancy of Averments, Proof Before Answer Allowed Quoad Ultra)
Outcome
Defender's third and fifth pleas in law sustained; proof before answer allowed quoad ultra.
Legal Topics
Double Delict Rule, Choice of Law in Tort/delict, Remoteness of Damage, Heads of Damage, Quantification of Damages
Private International Law Delict (tort) Double Delict Rule Choice of Law in Tort/delict Remoteness of Damage Heads of Damage Quantification of Damages

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Parties

Mitchell

Pursuer

M'Cullogh

Defender

Procedural Posture

Delict (personal Injury, Damages) / Interlocutory (debate on Relevancy of Averments, Proof Before Answer Allowed Quoad Ultra)

Legal Issues

  1. 1 Whether heads of damage not recognised by Scots law (lex fori) but recognised by Bahamian law (lex loci delicti) are recoverable in a Scottish court
  2. 2 Whether remoteness and heads of damage are governed by lex fori or lex loci delicti

Ratio Decidendi

A head of damage not recognised by the lex fori (Scots law) is not recoverable in a Scottish court, even if recognised by the lex loci delicti (Bahamian law). The lex loci delicti may cut down or limit a right to damages otherwise exigible in the forum, but cannot create or extend a right not recognised by the forum.

Court Disposition

Defender's third and fifth pleas in law sustained; proof before answer allowed quoad ultra.

Orders

  • Averments relating to certain items of damage held irrelevant and excluded from probation.
  • Proof before answer allowed on remaining issues.