[KING'S BENCH DIVISION]

RAULIN v. FISCHER.

Foreign Judgment - Criminal Prosecution for Negligence - "Partie Civile" - Award of Damages, when enforceable here.

By the French law, where an offender is prosecuted for a crime, a person who was injured by the crime may intervene in the prosecution and put in a claim for damages, which claim is tried along with the criminal charge, and upon conviction punishment for the offence and damages for the injury may be awarded by the same judgment:-

Held, that in such a case the judgment is severable, and that the portion of it awarding damages to the injured person is not within the rule of international law which prohibits Courts of justice from executing the penal judgments of a foreign Court, but may be enforced by action in this country.

TRIAL before Hamilton J. without a jury.

The defendant, an American lady, while recklessly galloping her horse in the Avenue du Bois de Boulogne in Paris ran into the plaintiff, a French officer, and seriously injured him. For her act of criminal negligence in so riding the defendant was prosecuted at the instance of the Procureur de la République before the Civil Court of First Instance of the Department of the Seine sitting as a correctional tribunal, under art. 320 of the Penal Code. By the provisions of the Code d'Instruction Criminelle a person who is injured by a criminal act may intervene in the prosecution (action publique) and put in a claim for damages, whereupon his claim (action civiler) is tried along with the action publique and one judgment is pronounced on both. (1) The plaintiff, M. Raulin, intervened in the

(1) By the Code d'Instruction Criminelle -

Art. 1: "L'action pour l'application des peines n'appartient qu'aux fonctionnaires auxquels elle est confiée par la loi. L'action en réparation du dommage causé par un crime, par un délit ou par une contravention, peut être exercée par tous ceux qui ont souffert de ce dommage."

Art. 2.: "L'action publique, pour l'application de la peine, s'éteint par la mort du prévenu. L'action civiler pour la réparation du dommage peut être exercée contre le prévenu et contre ses représentants."

Art. 3: "L'action civiler peut être poursuivie en même temps et devant les mêmes juges que l'action publique. Elle peut aussi l'être séparément: dans ce cas l'exercice en est suspendu tant qu'il n'a pas été prononcé définitivement sur l'action publique intentée avant ou pendant la poursuite de l'action civile."

prosecution and claimed damages. At the hearing on December 1, 1909, the defendant, who did not appear, was convicted and was sentenced to one month's imprisonment and a fine of 100 francs. On the claim for damages, the Court, not having sufficient evidence before it as to the extent of the injury, made an order for the examination of the plaintiff by an expert, and in the meantime made a provisional award of 5000 francs damages. The defendant then appeared by counsel and applied to have the conviction and judgment set aside. The application was heard on March 9, 1910, when the judgment was confirmed except so far as it ordered a month's imprisonment. Subsequently the expert made his report to the Court as to the extent of the plaintiff's injury, and thereupon the Court ordered the defendant to pay to the plaintiff as damages the sum of 15,000 francs, including the provisional sum of 5000 francs previously allowed, and 917 francs for costs. It was a term of the order that it should be enforced if necessary by the imprisonment of the defendant. Upon that judgment the present action was brought to recover the sum of 636l. 13s. 6d., being the equivalent in English money of the 15,917 francs so ordered to be paid.

Schiller, for the plaintiff. The judgment of the French Court so far as it awarded damages to the plaintiff was a civil and not a penal judgment, and therefore it may be enforced here. By art. 3 of the Code d'Instruction Criminelle the party injured by a criminal act has an election whether he will have his claim for damages tried before the same judges who are entertaining the criminal action, or whether he will bring a separate action before a purely civil Court. But the choice of the former alternative does not make his claim and the judgment pronounced on it any the less a civil one. Even where the order imposing a fine and the award of damages are pronounced at the same time, the judgment is really twofold, part of it being penal and part civil. In Piggott on Foreign Judgments, 3rd ed., part i., p. 90, this very point is dealt with, and it is said, "By French law civil proceedings for the tort are allowed to be tacked on to criminal proceedings for the offence, the person injured being termed the tiers parti, and damages may be awarded. This

would seem to be a civil judgment recognizable in England in the usual way." There is no reason for saying that the judgment is not severable. The two matters are quite distinct, though for convenience they are tried in the same Court to avoid repetition of the evidence. The fact that whereas the action publique abates on the death of the accused the action civiler survives against the representatives shews that the two are distinct, while the fact of the Court having ordered the payment of the damages to be enforced if necessary by imprisonment does not point to the conclusion that the Court treated the award of damages as part of a penal order. Before 1867 imprisonment for debt was the rule in all cases in France just as in England. By the Law of July 22, 1867, art. 1, "La contrainte par corps est supprimée en matière commerciale, civiler et contre les étrangers." Art. 2.: "Elle est maintenue en matière criminelle correctionnelle et de simple police." Art. 4.: "Les arrêts et jugements contenant les condamnations en faveur des particuliers pour réparations de crimes, délits ou contraventions commis à leur préjudice sont, à leur diligence, signifiés et exécutés suivant les mêmes formes et voies de contrainte que les jugements portant les condamnations au profit de l'État." Art. 5.: "Les dispositions des articles qui précèdent s'étendent au cas où les condamnations ont été prononcées par les tribunaux civils au profit d'une partie lêsée, pour réparation d'un crime, d'un délit ou d'une contravention reconnus par la juridiction criminelle." Those articles shew that imprisonment for debt is still preserved in all cases where the debt is for damages awarded for an injury caused by a criminal act, whether those damages were awarded upon an intervention by the injured party in the action publique (art. 4), or in an independent action before a civil Court (art. 5). But it could not be disputed that if the damages were awarded in an independent action the judgment would be a civil one notwithstanding that it was enforceable by imprisonment. Therefore equally in the other case the power to enforce the judgment by imprisonment cannot be the test of whether the judgment is civil or penal in its nature.

[A French avocat was called who stated that the French

Courts treat the award of damages to an injured person who intervenes in the prosecution as a civil judgment.]

Even if the French Courts did not so treat it, it would be immaterial, for it is for this Court to decide whether the judgment sued on is criminal or civil: Huntington v. Attrill. (1)

W. B. Murphy, for the defendant. It is a well-settled rule of international law that the Court has no jurisdiction to entertain an action for the enforcement either directly or indirectly of a penal law of a foreign country: Dicey on the Conflict of Laws, 2nd ed., p. 207. The judgment here sued upon is within that rule. It was pronounced by a criminal tribunal as the result of a conviction for a crime, and it is not severable. It is analogous to the case of an order by a magistrate under the Malicious Injuries to Property Act, 1861, ordering the person convicted of an offence to pay compensation to the party aggrieved in addition to a fine or imprisonment. In such a case the order could not be severed, and in the event of its being reversed by a Divisional Court upon a point of law the complainant could not by limiting his appeal to so much of the order as ordered compensation avoid the objection that the order was made in a "criminal cause or matter" within s. 47 of the Judicature Act, 1873, and so entitle himself to carry the case to the Court of Appeal. The complainant in such a case has the option of prosecuting or of bringing a civil action, and if he elects to take the former course he takes it with its concomitant disadvantages. So in the case before the Court, if the injured person elects to intervene in the action publique instead of bringing an independent action, he does so with the disadvantage that he cannot enforce the judgment in the Courts of another country.

[An avocat called on behalf of the defendant conceded that the receveur d'amendes, who receives the fines on behalf of the State, does not levy execution for the damages. The injured person has to do that for himself. So that in such cases there are two executions.]

Schiller was not called on to reply.

HAMILTON J. On the judgment of the French Court the plaintiff is in my opinion entitled to recover the English

(1) [1893] A. C. 150.

equivalent of the 15,000 francs that have been awarded him as damages. It was not disputed by the defendant's counsel that he would be so entitled but for the rule of private international law that a penal judgment of a Court in one country cannot be enforced by action in another country. The point raised for the defendant was that the judgment sued on was in truth a penal judgment within that rule, and that though part of it might be more or less civil in its character there was no power in this Court to dissect the judgment and enforce here that part which was enforceable by action though the judgment as a whole was not enforceable. Although the French Courts might refuse to distinguish between the parts of a judgment which may be called principal and the parts which may be called accessory, the parts which are by way of punishment and the parts which are by way of civil remedy, it does not follow that the English Courts in dealing with a French judgment should take the same course. The rule which governs such a question is that laid down by the Privy Council in Huntington v. Attrill. (1) It was there held that, a judgment having been given by a New York Court against the respondent under a New York statute which imposed a liability for false representation, and an action having been brought in an Ontario Court upon that judgment, it was the duty of the Ontario Court to determine for itself whether the judgment sued on was a penal one or not, and that it was not bound by the interpretation put upon the statute by the New York Courts. Lord Watson said: "The Court .... must determine for itself, in the first place, the substance of the right sought to be enforced; and, in the second place, whether its enforcement would either directly or indirectly involve the execution of the penal law of another State. Were any other principle to guide its decision a Court might find itself in the position of giving effect in one case and denying effect in another to suits of the same character, in consequence of the causes of action having arisen in different countries; or in the predicament of being constrained to give effect to laws which were, in its own judgment, strictly penal." He went on to refer to a passage in the judgment of Gray J. in Wisconsin

(1) [1893] A. C. 150.

v. Pelican Insurance Co. (1): "The rule that the Courts of no country execute the law of another applies not only to prosecutions and sentences for crimes and misdemeanours, but to all suits in favour of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of it's revenue or other municipal laws, and to all judgments for such penalties," and added, "Their Lordships do not hesitate to accept that exposition of the law, which in their opinion discloses the proper test for ascertaining whether an action is penal within the meaning of the rule. A proceeding in order to come within the scope of the rule must be in the nature of a suit in favour of the State whose law has been infringed." I have therefore to inquire first of all whether this judgment in so far as it concerns the present plaintiff is one for the satisfaction of a private wrong or for the punishment of an infraction of public law; and secondly whether, if it be as regards him only for the satisfaction of a private wrong, it is one which can be separated from the rest of the judgment, so that he may sue upon the judgment in spite of the fact that a considerable part of it relates to purely criminal proceedings. Certain French expert witnesses were called before me, and the effect of their evidence was this. In various respects the remedy in the form in which it was pursued differs from the form in which it might have been pursued. The result of M. Raulin having pursued his remedy for compensation by intervention in the prosecution instead of bringing a separate civil action was that he came before a Court especially assigned to criminal business. That Court decided both in the prosecution and in the civil intervention, and to that extent the plaintiff obtained his judgment from a correctional tribunal. But in other respects it does not appear to me that his remedy differed in its character from the remedy which he might have pursued by a separate civil action. The prosecution abates with the death of the accused. The civil remedy does not. The liability to imprisonment in order to enforce payment of the damages is in law an incident both of the intervention in the action publique and of the separate civil action. The course of procedure differs because, instead of the whole conduct of the action on the

(1) (1887) 127 U. S. 265.

intervener's side resting with the plaintiff as it would have done in civil proceedings, he has to adapt himself to the control of the proceedings by the Procurator of the Republic. But the issues remain unchanged. The issue between the Procurator and the accused was whether she had broken the law against driving negligently contained in art. 320 of the Penal Code. On that issue the contributory negligence of the plaintiff would have afforded no defence, but the contributory negligence of the plaintiff would have been material to the question of damages claimed by him as an intervening party, and that issue, if the facts justified it, would be raised just as much in the civil intervention in the action publique as it could in a separate action civiler. It seems to me that there is no doubt that the public prosecution and private suit are two quite separate and distinct proceedings although they are for purposes of procedure combined in one. The judgment for the 15,000 francs is not in any respect a judgment in a proceeding "in favour of the State whose law has been infringed." It is a judgment in what is substantially a civil suit for the compensation of a person who has sustained a private wrong.

The other question is whether it is practicable to distinguish the portion of the adjudication which was not part of the criminal suit from that portion of it which was. In this connection certain decisions of French Courts were cited to me, but not much assistance is to be gained from them, especially in view of the evidence that according to the jurisprudence of France the decisions of the Courts are not binding even upon Courts of inferior jurisdiction unless they are pronounced in the same cause or matter, and, consequently, though the decisions of the Courts are constantly cited, they are cited by way of edification only and not as authority. In any case, according to the judgment of the Privy Council, this is not a matter in which I am bound by the view of the French Courts. It is one in which I must determine for myself whether the enforcement of the plaintiff's rights would either directly or indirectly involve the execution of the penal law of another State. In my opinion it would not. Moreover here the decision awarding the final damages was not even pronounced at the same time as the decision inflicting

the fine. It was given at a time when the only issue being contested was of a private and civil character, and one with which the State had nothing whatever to do. I think the decision must be for the plaintiff. I am fortified in this view by the passage which has been cited from Sir Francis Piggott's work on Foreign Judgments in which he deals with this very provision of the French law, that civil proceedings for a tort are allowed to be tacked on to criminal proceedings for the offence and damages may be awarded to the person injured, and suggests that the award of damages in such case is a civil judgment recognizable in England in the usual way.

Solicitors for plaintiff: Bristows, Cook & Carpmael.

Solicitors for defendant: Michael Abrahams & Co.

J. F. C.