Definition
A foreign tort means a tort which is committed abroad i.e. a tort, cause of action regarding which has arisen abroad.
There are of two types of foreign torts:
a. A Tort of Reality i.e. in the nature of an injury to land situated outside the country, or
b. A Personal Tort i.e. in the nature of an injury to person or movable property.
Tort of Reality:
English Scenario: No action will lie in England for any trespass or other tort committed in respect of land situated outside the England, even though the wrongdoer is a British subject and is the resident of Britain. The same rule applies to India also.
Indian Scenario: An action for trespass or any other injury to land outside India cannot be brought in India as would be clear from Section 16 of CPC. But in the case of other torts committed abroad an action will lie in India if defendant resides in India.
Personal Tort:
Where, however, the tort is committed with respect to movable property, or against the person of plaintiff an action of tort will lie in England, although the cause of action has arisen abroad. “Provided that the person of the defendant is within the jurisdiction of English Courts he can be sued in England for a libel published in New York or for an assault committed in Turkey”.
Necessary conditions of liability for Foreign Tort:
a. The act should be unlawful at the place of commission: The act complained of must be unlawful where it was committed i.e. the act must not be justifiable by law of the place where it was done.
b. Need not be actionable there: It is not necessary that the act must be actionable where it was committed. Salmond criticized this rule by saying “it seems curious that a man should be held liable for the damages in England for doing an act abroad which does not expose him to liability”.
c. It should not be a tort of purely local nature: The act complained must not be a tort of purely local nature, such as trespass to or ouster from land, or a nuisance affecting hereditaments.
d. The act should be actionable wrong at the place if suit: The act complained of must be of a kind which would have been actionable if it would have done in that particular country i.e. the country of the forum. The law which would be applied must be of the country of forum not of the country where the tort was committed.
Some of the landmark judgments which are relevant to foreign torts are:
a) Philips V. Eyre, (1870) 6 Q.B. 1.
b) Carr V. Francis Times & Co., (1902) AC 176.
c) Mostyn V. Fabrigas, (1774) 1 Cowp. 161.
Felonious Torts
Meaning of Felony:
A crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death is called a felony.
Old view:
The old view of common law was expressed in the doctrine of “the merger of a tort in felony”. The compendious form in which the rule was often stated was that felony “drowns the particular offence and private wrong”. In a few early cases it was held that there could not be a double proceeding, civil and criminal, in respect of the same act; in other words, that the criminal remedy destroyed the civil remedy.
The second stage is the evolution of this doctrine was marked by those decisions that the plaintiff against whom a felony is committed by the defendant cannot make that felony the foundation of cause of action unless the defendant has been prosecuted or a reasonable excuse has been shown for his not having been prosecuted.
The case law of Smith V. Selwyn, (1914) 4 K.B. 98. can be referred here.
Present View:
It was expressed that civil remedy is not drowned but is suspended. The doctrine that was a condition precedent to the enforcing of civil remedy that the felon should have been first prosecuted, if ever it had any solid foundation, was finally exploded.
The case law of Rose V. Ford, (1937) AC 826 can be referred here.
Indian Law:
There is no similar rule in India requiring the plaintiff to prosecute the offender before suing him. In fact, such an artificial rule would be repugnant to the specific provisions of CPC.
The case laws of Keshab Nath Bhattacharya V. Maniruddin Sarkar, 13 CWN 501, 506 and Govindacharyulu V. Seshagiri Rao, (1941) MWN 786 are relevant here.
