A decision of the High Court in London in late November in a claim arising from an accident in Paris further develops our understanding of Rome II, the EU regulation which sets out the rules for deciding which substantive national law should apply to tort claims involving foreign elements.
In this case, the judge had to decide on the law applying to claims arising from a fatal motorway traffic accident outside Paris in summer 2012 that involved a French uninsured driver (and hence the UK MIB as proxy for its French counterpart), the English owner and passenger (who was killed in the accident) of a broken-down English-registered Fiesta, and a French recovery truck.
The general rule of the Rome II regulation, set out in its article 4(1), is that the law applicable to a claim in tort is that of the country in which the damage occurs; which would ordinarily be French law in the case of this particular accident. However, the general rule is displaced by article 4(2) if the claimant and the person claimed to be liable have a common habitual residence, with the law of that country applying. There is also provision at article 4(3) for the law of a country which is “manifestly more closely connected” with “all the circumstances of the tort” to apply. Note that both 4(2) and 4(3) are mandatory, ie the law so designated shall apply.
In its judgment on 27 November the High Court held that French law applied under the 4(1) general rule. On the facts, it was possible that French law could be partly displaced by 4(2) in favour of English law, but only in respect of the claim by the passenger’s widow against the driver of the Fiesta, as both had a common habitual residence in England. Turning to 4(3), the judge found that this provision, on these facts, operated to designate French law. The centre of gravity of the tort was in France and the claim was manifestly more connected with that country.
As far as we know, this is the first decision on whether article 4(3) may be interpreted so as to revert to a law that had already been indicated by either 4(1) or 4(2) rather than a completely different law. This may turn out to be the essential element of the case.
Before this claim, academic commentators had been split on the point, with some suggesting that only a different law to that indicated by either 4(1) or 4(2) could be adopted under 4(3). Despite that, the judge was unequivocal on this aspect, saying that there was “no good reason for the interpretation or approach suggested by the textbooks. In my judgment this case provides an illustration of when French law is provided as the governing law under article 4(1), excluded (for part of the claims) under article 4(2), and then required again under article 4(3).”
The accident was caused by the negligent French uninsured driver colliding with the two Englishmen (M & P), and then the Fiesta, which was forced into the recovery truck. P had been thrown clear by the initial impact but M was trapped between the Fiesta and the truck and died at the scene from his injuries. The potential indemnifiers were: MIB for the uninsured driver, RSA as insurer’s of P’s Fiesta and Generali as insurers of the recovery truck.
Applying French law to the claims between the respective parties would turn not on liability of the drivers but instead on ‘involvement’ of the vehicles in the accident, with the French legal concept of “véhicule impliqué dans l’accident’” being critical. Also relevant was the scheme under which the French Guarantee Fund operated – and which would necessarily govern the MIB’s liability in this case – which excluded its liability if an insurer of another involved vehicle could be identified.
It therefore followed that under French law, as applied by the English Court, the outcomes for the respective claims were as follows:
- The Fiesta and recovery truck were ‘involved’ in the accident in which M died, so RSA and Generali should indemnify M’s widow
- Despite the clear ‘involvement’ of the French uninsured vehicle in M’s death, the MIB would not be called on to indemnify his widow because of the existence of the other insurers (the point being that the French Guarantee Fund would not be engaged in such circumstances and thus neither would the MIB acting as its proxy), and
- Only the uninsured French vehicle was ‘involved’ in the collision with P, so only the MIB (again, as proxy) should indemnify him.
Given the existence of other insurers/indemnifiers, this case is not on all fours with the earlier Court of Appeal cases of Jacobs and Bloy. Although each case arose from accidents abroad featuring English-resident claimants and an uninsured foreign motorist, the critical distinction from the present case is that in both of them the uninsured driver was the sole defendant. In any event, it should be noted that the MIB is set to challenge the reasoning adopted in both Jacobs and Bloy before the Supreme Court in 2016 in the case of Moreno v MIB.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).