Classification of Delictual Damages - Harding v Wealands and the Rome II Regulation

Citation

Beaumont P & Tang Z (2008) Classification of Delictual Damages - Harding v Wealands and the Rome II Regulation. Edinburgh Law Review, 12 (1), pp. 131-137. https://www.euppublishing.com/doi/abs/10.3366/E1364980908000085

Abstract
First paragraph: In Scottish - or English or Northern Irish - private international law, damages have traditionally been regarded as a mixture of substance and of procedure. Although it is difficult to draw a dividing line, it has generally been agreed that the heads of damage are an issue of substance and should be governed by the lex causae, while the quantification of damages is an issue of procedure and should be decided according to the lex fori. However, the division between substance and procedure is not clear-cut. Whether ceilings on damage awards are covered under the "heads of damage" or the "quantification of damages" is particularly controversial. These issues have been examined in a number of recent English cases. The latest decision, by the House of Lords in Harding v Wealands, might have been expected to be the last word. However, despite the high status and careful exposition of a unanimous decision, its importance is greatly limited by new European legislation. Contrary to the existing Scottish (English) rules, the Rome II Regulation provides that the assessment of damages or remedy claimed is governed by the Iex causae.

Journal
Edinburgh Law Review: Volume 12, Issue 1