Dr Nicholas Bevan

Dr Nicholas Bevan

Friday, 14 February 2014

CPR applies even where foreign law applies under Rome II

Wall v Mutuelle De Poitiers Assurances [2013] EWHC 53 (QB)

The facts: an English motorcyclist was knocked off his bike and very seriously injured by a French driver in France.  Liability was not disputed.  He had a substantial claim for future loss of earnings and long term care needs.  It was common ground that under article 4 of Rome II French law applied not just to the issue of primary liability but also to determine ‘the existence, the nature and the assessment of damage or the remedy claimed’[1].  The defendant insurer wanted to employ the continental model of inquisitional claims investigation and to use a single joint expert.  The claimant’s representative argued that this would not do justice to the claimant’s case and sought to rely on their own medical, care and accountancy experts and for the CPR to apply in this regard.

The decision: Article 1.3 of Rome II expressly excludes procedure and evidence from its conflict of law provisions so that the law of the forum (i.e. in this case our UK law including the CPR Rule 35) still governed the quantification of the heads of claim permitted under French law.  The obligation on the local court to apply French law did not require that court to put itself in the position of a French court and to decide the case as that court would have decided it.  Accordingly our national law determined what evidence is required to establish the claim.  It is interesting to note that Tugendhat J appeared to be singularly unimpressed by the prototype single expert report used in France.

[1] The words in italics are taken from article 15 - Council Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (aka Rome II) dealing with the scope of the law applicable under article 4 ibid.

1 comment:

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