Dr Nicholas Bevan

Dr Nicholas Bevan
www.nicholasbevan.com

Wednesday, 5 March 2014

CPR RULES APPLY TO FOREIGN ACCIDENT CLAIMS

As is well known, Rome II governs the applicable law where an accident occurs abroad from 1st January 2009.  Whilst article 15 (c) extends the scope of the applicable foreign law to issues concerning the existence, nature and assessment of damages or the remedy claimed, article 1.3 excludes this from matters of evidence and procedure; without prejudice, of course, subject to certain exceptions that do not concern us here. 

 Wall v Mutuelle de Poitiers Assurances [2014] EWCACiv 138 is important to anyone who handles personal injury claims featuring an accident abroad.  It concerned a foreign insurer that sought to impose the French approach to quantifying Steven Wall’s catastrophic injury claim, because the accident took place in France. Clearly the basic applicable law was that of France.  The French insurers want to appoint a single expert consistent with the continental model of inquisitional investigation.  They failed.

Given that there were 1.5 million road accident injuries in the EEA in 2009-2010, and that economic migration within the EEA seems likely to increase, it seem reasonable to suppose that foreign accident claims are likely to become a more common feature of personal injury practice.  So anything that makes the process of running such a claim a little easier is to be welcomed.  Robert Weir’s success in this appeal achieves just that.  Wall simplifies some of the procedural aspects of accidents that occur in a foreign jurisdiction where Rome II stipulates that foreign law applies, especially those concerning the quantification of loss.  

In essence the Court of Appeal concluded in Wall that it would be impractical to expect an English judge to apply foreign procedural rules, evidential standards and protocols when attempting to quantify the loss of a UK resident injured abroad.  Paragraphs 12 to 14 of the Longmore LJ's judgment indicate some of the difficulties that would result if otherwise.

Accordingly in  England and Wales the courts will follow the evidential practices prescribed by the Civil Procedural Rules.   So CPR Part 35, which we love and hate in equal measure, will govern the expert evidence required to quantify the loss, in so far as each head of loss claimed is recoverable under the foreign law.  The ruling has echoes of the pre-Rome II ratio in  Harding v Wealands [2007]  AC 1 but there are subtle differences. Furthermore, anyone hoping to secure a periodical payments order against a foreign insurer is likely to be disappointed

I reported the first instance decision last month because its importance appeared to have escaped the notice of most commentators; it still has.  So I am glad to report that the original decision has been upheld. 

1 comment:

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