accidents abroad...performance of the obligation in question; (b) for the purpose of this provision...
TRANSCRIPT
ACCIDENTS ABROAD
Bernard Doherty
September 2018
The two questions
1. Can the claim be litigated in England?
i.e. The jurisdiction question.
2. If so, which country’s law will govern the
issues in the case? i.e. The applicable
law question.
Jurisdiction: the various rules
Two main sets of rules.
1.Regulation (EU) No 1215/2012 on jurisdiction
and the recognition and enforcement of judgments
in civil and commercial matters, Brussels I Recast,
aka Judgments Regulation.
2.Common law rules found in Practice Direction B
to CPR Part 6.
Jurisdiction: other rules to be
aware of• Schedule 4 of the Civil Jurisdiction and
Judgments Act 1982 (intra-UK).
• Lugano Convention (Switzerland, Norway,
Iceland).
• Montreal Convention for carriage by air.
• Athens Convention for carriage by sea.
• Etc.
Jurisdiction: which rules apply?
• Basic rule: if the defendant is domiciled in an EU
Member State, jurisdiction is based on Brussels I
Recast: arts 4, 28.
• For domicile of companies, see art.63; of individuals,
see Civil Jurisdiction and Judgments Order 2001.
• Brussels I Recast may also apply to certain other
cases, e.g. company domiciled outside EU but with
branch inside, jurisdiction agreement.
• If defendant domiciled outside EU, jurisdiction
determined according to the common law rules.
Scope of Brussels I Recast
• Applies to civil and commercial matters (art.1(1)).
• Acta iure imperii are excluded, i.e. “public authority …
acting in the exercise of its public powers” (Lechouritou
(C-292/05)).
• Finding the dividing line:
– Netherlands v Rüffer (C-814/79) [1980] ECR 3807.
Dutch barge claim for cost of work done under treaty
with Germany acta iure imperii.
– Sonntag v Waidmann (C-172/91) [1993] ECR I-1963.
Claim against state employed teacher for fatal
accident not acta iure imperii.
Basic rule of jurisdiction
• “... persons domiciled in a Member State shall,
whatever their nationality, be sued in the courts
of that Member State” (art.4(1)).
• Basic rule is subject to exceptions discussed
below.
• In order to protect the integrity of the basic rule,
exceptions are construed restrictively: Reisch
Montage AG v Kiesel Baumaschinen Handels
GmbH (C-103/05).
Additional bases of jurisdiction
• Art 7(1):
“(a) in matters relating to a contract, in the courts for the place of
performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place
of performance of the obligation in question shall be:
• in the case of the sale of goods, the place in a Member State where,
under the contract, the goods were delivered or should have been
delivered,
• in the case of the provision of services, the place in a Member State
where, under the contract, the services were provided or should
have been provided;
(c) if point (b) does not apply then point (a) applies.”
• Art. 7(2):
“in matters relating to tort, delict or quasi-delict, in the courts for the place
where the harmful event occurred or may occur”.
Additional bases of jurisdiction
• When is a claim one in contract and when in tort?
• Autonomous question of European law under which the two
concepts are mutually exclusive so if a matter is in contract it
is not in tort (Henkel (C-167/00)).
• The mere existence of a contract not enough to make claim
one in contract. It will be in contract where the interpretation
of the contract is crucial for determining the lawfulness of the
conduct complained of (Brogsitter (C-548/12)).
• In Committeri v Club Med [2018] EWCA Civ 1889 CA held a
claim to be a matter in contract where C’s employer
contracted with holiday company to provide inter alia ice
climbing services and C injured while taking part.
Additional bases of jurisdiction
• “where he is one of a number of defendants, in the
courts for the place where any one of them is domiciled,
provided the claims are so closely connected that it is
expedient to hear and determine them together to avoid
the risk of irreconcilable judgments resulting from
separate proceedings” (art.8(1)).
• “as a third party in an action on a warranty or guarantee
or in any other third party proceedings, in the court
seised of the original proceedings, unless these were
instituted solely with the object of removing him from the
jurisdiction of the court which would be competent in his
case” (art.8(2)).
Special jurisdiction in matters
relating to insurance • Articles 10-16 of Brussels I Recast provide special
rules for “matters relating to insurance.”
• Rationale is the protection of the weaker party
(Recital (18)).
• “The policyholder, the insured or a beneficiary” may
bring a claim (against the insurer) in their home
courts (art.13(2)).
• “Articles 10, 11 and 12 shall apply to actions brought
by the injured party directly against the insurer,
where such direct actions are permitted” (art. 11(2)).
Scope of insurance rules
• FBTO Schadeverzekeringen NV v Odenbreit (C-463/06)
held art. 13(2) (then 11(2) of the original Brussels I)
permits direct action against insurer to be brought in
injured person’s home court where national law permits.
• For cases arising from accidents from 11 January 2009,
national law permits direct action “if the law applicable to
the non-contractual obligation or the law applicable to
the insurance contract so provides” (Rome II, art. 18).
• Can join the tortfeasor as well as insurer, e.g. if
indemnity limit and solvent tortfeasor: Mapfre Mutualidad
v Keefe [2015] EWCA Civ 598 (N.B. appeal to Supreme
Court and ECJ reference outstanding).
Scope of insurance rules
• In English law, European Communities (Rights against
Insurers) Regulations 2002 create direct right for RTAs
in UK but limited to cases in which vehicle is “normally
based” in UK (reg.2(1)).
• Vehicle is normally based in state whose registration
plate it bears (reg.2(2)).
• But if car based in another Member State, insurance
policy probably governed by law of that state which will
contain a direct right of action.
• In pleading, should rely on that other state’s law rather
than English law.
Scope of insurance rules
• Not limited to motor claims.
– Motor claims have a particular position as Fourth
Motor Insurance Directive required every Member
State to create direct action for victims.
– However, several European countries (e.g. France,
Spain, Belgium) contain broader rights to claim
directly against the liability insurer of the tortfeasor.
• In non-motor claims, look out for territorial limits, e.g. this
policy will indemnify only against liabilities established
before the courts of Spain: Williams v Mapfre (HHJ
Halbert, Chester County Court, 13 April 2015).
Scope of insurance rules
• Only available to a “weaker party” so not
available to one insurer in claim against another
(GIE v Zurich Espana (C-77/04) or to a social
security body as statutory assignee of a cause of
action (Vorarlberger (C-347/08)) or to an
assignee of a claim who pursued such assigned
claims on a commercial basis (Hofsoe (C-
106/17)).
• Available to derivative claimants as long as they
are weaker party, e.g. estate of deceased,
dependants.
Scope of insurance rules
• Perhaps surprisingly, also available to an
employer seeking to recover wages paid to an
injured employee (KABEG v Mutuelles du Mans
(C-340/16)).
• Note also that a jurisdiction agreement in an
insurance policy (binding insurer and insured)
does not bind the injured person bringing a
direct action against the insurer (Assens Havn v
Navigators Management (UK) Ltd (C-368/16)).
Avoiding Odenbreit
• Commencing proceedings where the
accident happened under Article 7(2)?
• Negative declaration.
• Potentially available in England: Toropdar
v D [2009] EWHC 567 (QB).
• In some European countries, a defendant
not disputing liability can issue
proceedings to have damages assessed.
Avoiding Odenbreit
• Article 7(2) is potentially available for claim for
negative declaration: Folien Fischer AG v
Ritrama SpA (C-133/11) [2013] QB 523.
• Article 7(2) “exists for sound administration of
justice and the efficacious conduct of
proceedings” (paragraph 37).
• It does “not pursue the same objective as the
rules on jurisdiction laid down in sections 3 to 5
… which are designed to offer the weaker party
stronger protection” (paragraph 46).
Avoiding Odenbreit
• Four types of action by defendant (assume one
English and one foreign driver):
– Insurer sues in own name.
– Foreign driver sues in own name for benefit of
insurer.
– Foreign driver sues in own name partly for
own benefit and partly for insurer’s.
– Foreign driver sues in own name for own
injuries.
Insurer sues in own name
• As to first, insurer cannot sue in own
name using Folien Fischer.
–Where a case falls within special
jurisdiction rules, only those rules
apply: art.10.
–By special rules, insurer may sue only
in defendant’s home court: art.14(1).
Foreign driver sues in own
name for benefit of insurer• Assume that the foreign driver’s interest is
identical to the insurer’s interest. In such a
case, can the allegedly negligent driver sue in
own name relying on Article 7(2)?
• If the named claimant is merely a proxy for
the insurer, there would be an argument that
should not be allowed, since it would be a
device to evade the protection given to the
weaker party.
Foreign driver sues in own name partly
for own benefit and partly for insurer’s
• Assume now that the foreign driver is insured
but nonetheless has a genuine interest in the
litigation. For example:
– There is a limit of indemnity under the policy
which the claim might exceed.
– There is a large deductible.
• Could the foreign driver be prevented from suing
in own name for negative declaration or
assessment of damages?
Foreign driver sues in own
name for own injuries• Assume a case in which both foreign and
English driver injured.
• Foreign driver can sue English driver in
the foreign country under art.7(2).
• If English driver later sues foreign driver’s
insurer in England, English claim might be
stayed under art.30 as a related action.
• More so if liability is genuinely in issue.
Jurisdiction: common law rules
for claims in tortBy paragraph 3.1(9) of PD6B, jurisdiction
exists at common law over a claim in tort
where:“(a) damage was sustained, or will be sustained,
within the jurisdiction; or
(b) damage which has been or will be sustained
results from an act committed, or likely to be
committed, within the jurisdiction.”
Jurisdiction: common law rules
for claims in tort• What type of damage suffices under (a)? Line of
cases suggesting consequential loss will suffice.
CA in Brownlie v Four Seasons Holdings Inc
[2015] EWCA Civ 665 held must be direct
damage, i.e. the initial injury. But SC at [2017]
UKSC 80 obiter only and 3-2 concluded that
damage includes consequential loss.
• NB: court has discretion to refuse jurisdiction at
common law (forum non conveniens) but not
under Brussels I Recast: Owusu v Jackson (C-
281/02).
Jurisdiction: common law rules
• Also power to join co-defendants and third parties where jurisdiction
can be established over an “anchor” defendant: paragraphs 3.1(3)
and (4) of PD6B:
“(3) A claim is made against a person (‘the defendant’) on whom
the claim form has been or will be served (otherwise than in
reliance on this paragraph) and –
(a) there is between the claimant and the defendant a real issue
which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another
person who is a necessary or proper party to that claim.
(4) A claim is an additional claim under Part 20 and the person
to be served is a necessary or proper party to the claim or
additional claim.”
Jurisdiction: common law rules
See also power to introduce new claims against
same defendant even if the court would not have
independent jurisdiction over those claims:
paragraph 3.1(4A) of PD6B:
“A claim is made against the defendant in
reliance on one or more of paragraphs (2), (6)
to (16), (19) or (21) and a further claim is
made against the same defendant which
arises out of the same or closely connected
facts.”
Applicable Law: Rome II
• Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations.
• Being an EC Regulation, it is “binding in its entirety and directly applicable in all Member States” (now by art. 288 of the Treaty on the Functioning of the European Union).
• It will be of universal application: “Any law specified by this Regulation shall be applied whether or not it is the law of a Member State”(art. 3).
Scope of Rome II
• Rome II applies to events giving rise to
damage occurring after 11th January 2009:
Homawoo v GMF Assurances SA (C-
412/10).
• Rome II does not apply to matters of
evidence and procedure (art.1(3)) which
will be governed by the law of the forum.
1995 Act and Rome II
• Private International Law (Miscellaneous Provisions) Act 1995 Act and Rome II will continue side by side for some purposes.
• Rome II applies to “events giving rise to damage” after coming into force. Important for e.g. disease cases.
• Rome II does not apply to cases arising out of acta iure imperii (art.1(1)).
General Rules Under Rome II
• Applicable law is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.” (art.4(1)).
• Distinguish “occurrence of damage” from “event giving rise to damage” and from “indirect consequences.”
• In fatal accident claim, the damage occurs where the accident leading to death occurs, not where the dependants suffer their loss of dependency: Lazar v Allianz SpA (C-350/14).
General Rules Under Rome II
• Where claimant and defendant “both have
their habitual residence in the same country”,
that country’s law applies (art.4(2)).
• It “is a question of fact: has the residence of a
particular person in a particular place
acquired the necessary degree of stability”
Re LC (Children) [2014] UKSC 1.
• For example, see Winrow v Hemphill [2014]
EWHC 3164 (QB).
General Rules Under Rome II
• Where the tort is “manifestly more closely
connected” with another country, that country’s
law applies (art. 4(3)).
• Again, see Winrow v Hemphill. But compare
Marshall v MIB [2015] EWHC 3421 (QB) (upheld
at [2017] EWCA Civ 17).
• “Manifestly,” is likely to mean exceptionally.
• The tort, not an issue in the tort.
• Consider relevant facts at date of decision, i.e.
consider consequences.
Special Regimes
• Article 5 contains special rules for
product liability cases.
• Article 7 contains special rules for
environmental liability cases.
Article 15: Scope Of Applicable
Law• Once applicable law is selected, which issues
does it govern?
• The applicable law does not govern evidence or
procedure, which are for the law of the forum
(art.1(3)).
• General rule: applicable law governs matters of
substance.
• Article 15 defines matters which courts must
treat as matters of substance.
Article 15(c): Damages
“The existence, the nature and the
assessment of damage or the remedy
claimed” are all to be governed by the
substantive applicable law.
Traditional English Law
• Matters relating to the remedy including
the assessment of damages are
procedural and for the law of the forum.
• Reaffirmed in Harding v Wealands [2006]
UKHL 32.
Ascertaining scope of foreign
law in assessment of damages• Assessing damages is a mixture of law,
fact and custom and practice.
• How to draw the line between those
aspects governed by foreign law and
those not.
• Court of Appeal has given guidance in
Wall v Mutuelle de Poitiers [2014] EWCA
Civ 138.
Wall v Mutuelle de Poitiers
• English resident suffered serious spinal injury
in road traffic accident in France.
• Claim can be brought in England (Odenbreit)
but is governed by French law (art.4(1) of
Rome II.)
• French courts assess damages using a
single expert who may consult others.
• English courts would have evidence from 8 or
10 disciplines of expert.
Wall v Mutuelle de Poitiers
• Defendant’s argument: English court should
try to reach same result as French court.
To do that, it needs to use same expert
evidence.
• Claimant’s argument. That is a matter of
evidence and procedure (art.1(3)), so not
governed by Rome II. The aim is not to
achieve the same result as a French court.
• Claimant wins.
Wall v Mutuelle de Poitiers
• Obiter: what amounts to foreign “law”.
• Claimant contended that only black letter
foreign law should be applied.
• Defendant contended that the English
court should also apply guidelines and
conventions.
• Defendant wins. CA says narrow
interpretation of “law” undesirable.
Wall v Mutuelle de Poitiers
• Recital (33): Where “the accident takes place in
a State other than that of the habitual residence
of the victim, the court seised should take into
account all the relevant actual circumstances of
the specific victim”
• Suggestion that no need to obtain evidence of
French custom re pecuniary losses because of
Recital (33).
• Potentially helpful for claimants, but this aspect
does not appear to have been fully argued.
Cox v Ergo Versicherung
• 1995 Act case, not a Rome II case.
• But, support for giving wide scope to the
foreign applicable law from dicta. See
Lord Sumption at paragraph 23:
“The rational answer is that someone in [the
claimant’s] position should recover in respect
of a German cause of action what she would
have recovered in a German court. This has
now been achieved by changing the law.”
What 15(c) Changes
• Caps on damages? (Harding v
Wealands)
• Deductibility of benefits? (Roerig v
Valiant)
• Damages for pain, suffering and loss of
amenity? (Wall v Mutuelle de Poitiers)
• Interest? (Maher v Groupama)
• Costs? (Maher v Groupama)
Some Other Matters Specified
By Article 15• “(a) the basis and extent of liability.”
• The rules governing liability, e.g. strict or
negligence based.
• “(b) the grounds for exemption from
liability, any limitation of liability and any
division of liability.”
• Would include damages caps and
contributory negligence.
Some Other Matters Specified
By Article 15• “(e) the question whether a right to claim
damages or a remedy may be transferred,
including by inheritance.”
• If the claim is governed by foreign
substantive law, the question of whether a
claim lies for the benefit of the estate will
be governed by that law rather than by the
Law Reform (Miscellaneous Provisions)
Act 1934.
Some Other Matters Specified
By Article 15• “(f) persons entitled to compensation for
damage sustained personally.”
• Explanatory Memorandum: “this concept
particularly refers to the question whether
a person other than the ‘direct victim’ can
obtain compensation for damage
sustained on a ‘knock-on’ basis, following
damage sustained by the victim.”
Some Other Matters Specified
By Article 15• Would include secondary victims, e.g. rights
of a “victime par ricochet” under French law.
• Would probably include rules governing
persons who can recover damages for
psychiatric injury following physical injury to
another.
• Would probably include rules governing who
can claim for losses arising from death of
another.
Some Other Matters Specified
by Article 15• “(g) liability for the acts of another person”
• Vicarious liability would be obvious
example.
• “(h) rules of prescription and limitation”
• Already the case under English law since
Foreign Limitation Periods Act 1984.
• Now harder to disapply foreign limitation.
Direct right of action
• Article 18 of Rome II
“Direct action against the insurer of the person liable
The person having suffered damage may bring his or her
claim directly against the insurer of the person liable to
provide compensation if the law applicable to the non-
contractual obligation or the law applicable to the insurance
contract so provides.”
• Rule makes it possible to bring a direct action where one
of the laws to which it referred provided for such a
possibility. Not really a choice of law rule (Prüller-Frey v
Brodnig (C-240/14)).
Subrogation
Article 19 of Rome IISubrogation
“Where a person (the creditor) has a non-contractual claim
upon another (the debtor), and a third person has a duty
to satisfy the creditor, or has in fact satisfied the creditor
in discharge of that duty, the law which governs the third
person’s duty to satisfy the creditor shall determine
whether, and the extent to which, the third person is
entitled to exercise against the debtor the rights which
the creditor had against the debtor under the law
governing their relationship.”
Subrogation• Paraphrase (for our purposes):
The law governing the policy of insurance also governs the
question of whether a subrogated claim lies against the
defendant.
• An English C injured abroad will usually have travel of medical
insurance governed by English law, in which case English law
will govern the question of subrogation.
• Note residual role for law of tort. If under applicable law of
tort C has no right to claim a particular head of loss, then
subrogated claim for that head will not succeed.
• E.g. Say English law governs policy and Ruritanian law
governs tort, and say insurer pays for medical costs but
medical costs are not recoverable under Ruritanian law.
Insurer cannot recover the medical costs.