piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

Rome II and the Law of the Tort

Those with an interest in the Rome II Regulation (there must be someone else out there) may already be familiar with the recent decision of Slade J in Winrow v Hemphill & Anor. [2014] EWHC 3164 (QB). This short piece focuses on one aspect of the judgment. First, however, a quick recap. The claim arose out of a road traffic accident in Germany in November 2009. The Claimant was a UK national, domiciled in England, who was living in Germany at the time of the accident (having moved there with her British Forces husband several years before the accident). The Claimant returned to England around 18 months after the accident and continued to live in England at the time of trial. The First Defendant was also a UK national. She was also an Army wife and her husband served with the Army in Germany. The First Defendant, like the Claimant, later moved back to England. The Second Defendant insurer was registered in England/Wales. It was the insurer of the First Defendant at the time of the accident. The Claimant was a rear seat passenger in a vehicle driven by the First Defendant. The vehicle was involved in a head-on collision with a vehicle driven by a German national. It was not in issue that the accident was caused by the negligent driving of the First Defendant. Accordingly, liability was not in issue and judgment was entered. The parties continued (and continue) to fight the causation and quantum issues. The preliminary issue trial before Slade J concerned the applicable law of the tort and, more particularly, under Art. 15(c) of Rome II, the law to apply to the assessment of the damages to which the Claimant would be entitled: should damages be assessed, as the Claimant argued, according to English law (on application of Art. 4(3) of Rome II) or should they be assessed, as the Defendants argued, according to German law (by reason of Art. 4(1) of Rome II)? Slade J determined the preliminary issue decisively in the Defendant insurer’s favour: German law was to be applied. However, in the course of her judgment she stated (para 45 if you’re really interested), “I do not accept the contention ... that the circumstances to be taken into account in considering Article 4(3) will vary depending upon the issues to be determined and ... the stage reached in the proceedings. Nor do I accept the submission that ‘the centre of gravity’ of the tort when liability was conceded and only damages were to be considered depended upon circumstances relevant to or more weighted towards that issue.” The question I leave you with is why this is so. In Winrow liability was conceded and only causation and quantum remained to be dealt with. Most dispassionate observers would accept that causation and quantum were more closely connected to England (where the Claimant lived at the time of trial and was experiencing ongoing loss and where medico-legal experts were based) than Germany. If – as Art. 4(3) – directs” all the circumstances of the case” are to be considered in determining whether the tort/delict is more closely connected with one country (England) than another (Germany), it would seem artificial (at best) and, more ambitiously, wrong (in law) to put out of mind the fact that liability was no longer in issue and, therefore, was no longer a relevant consideration. Some of the textbook writers – particularly those wedded to a more certain/less discretionary approach to the identification of the applicable law of the tort – might (like Slade J) baulk at the approach advocated on behalf of the Claimant. However, there may – in this limited way – still be room for English common law inroads into (even) the Rome II regime so that some weight is given to the issues actually in dispute before deciding which law ought to be applied to them.

Jurisdiction and Applicable Law

Brownlie v Four Seasons Holdings Incorporated [2014] EWHC 273 (QB, Tugendhat J) The Claimant brought personal injury proceedings on her own behalf and on behalf of the estate of her late husband arising out of a (fatal) road traffic accident in Egypt. At the time of the accident the Claimant, her husband and other family members were participating in an excursion, booked (off-package) through the Hotel in Cairo where they were staying. The Hotel formed part of a chain of Hotels in which the Defendant, a Canadian company, had - to put the matter neutrally - an interest (the key issue in the appeal concerned the nature of this interest and the evidence as to the same). Permission was obtained to serve the Defendant outside the jurisdiction. There was a challenge to jurisdiction which succeeded before the QB Master. An appeal was brought with the permission of the Court and was heard by Tugendhat J. The appeal succeeded. In a wide ranging judgment the Judge considered the requirements for permission to serve outside the jurisdiction (and the standard of proof to apply in considering the same), questions of agency (and the location in which the contract for the excursion was made), issues of applicable law in tort and contract and matters raised by the conduct of the Defendant and its advisers.

Applicable Law in Tort and the Instruction of Expert Witnesses

Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138; LTL This appeal arose out of a preliminary issue trial on the proper meaning of Articles 1.3 and 15 of the Rome II Regulation in the context of permission to rely on expert (medico-legal) evidence which was to be adduced on behalf of an Englishman who suffered spinal cord injury during the course of a visit to France. Liability was conceded and it was common ground that the English Court had jurisdiction. However, the applicable law was that of France. The Defendant sought to restrict the Claimant's medico-legal expert evidence to the kind of French or "French-style" expert evidence that might be permitted by a French Court. The Defendant's arguments were rejected at first instance ([2013] EWHC 53 (QB)) and subsequently on appeal. The Court of Appeal gave important and timely guidance on the proper approach to expert evidence in claims of this kind (and on the meaning of Articles 1.3, 15 of and recital (33) to the Rome II Regulation).

Scuppered by the Athens Convention

The Athens Convention has long been a trap for the unwary claimant who either doesn’t appreciate that accidents at sea are governed by the Convention or that there is currently a 2 year limitation period. Most of the reported cases on the Convention deal with the consequences of one or both of these mistakes. However the judgment in the case of Feest v South West Strategic Health Authority [2014] EWHC 177 (QB) (handed down today) now poses a trap for defendants wanting to bring contribution proceedings. Dr Feest was injured as a passenger on a 9 metre RIB (rigid inflatable boat) in the Bristol Channel. She was on secondment from the Health Authority and on a corporate team building exercise being run by Bay Island Voyages when she fractured her spine. Dr Feest’s claim against the Health Authority (as her employer) was issued just before expiry of the 3 year time limit. The Health Authority brought a Part 20 claim against Bay Island Voyages. This was struck out by a district judge on the grounds that the time limit under the Convention is 2 years. The Health Authority appealed. The appeal hinged on the distinction between a cause of action being time barred and a cause of action being extinguished. In common law jurisdictions for the most part when time expires, it acts as a bar to the remedy. In civil jurisdictions it said to extinguish the cause of action altogether. The significance of this is that a right of contribution under the Contribution Act is only available where the cause of action has not been extinguished. Hence the appeal was concerned with whether the limitation period under Article 16 of the Convention barred the remedy or whether it extinguished the right to sue. HHJ Havelock-Allan QC found on appeal that, although Article 16 uses the language of an action being ‘time-barred’ after a period of 2 years, it extinguished the cause of action. Albeit that the Convention has been incorporated into domestic law and modified for domestic voyages, it must be ‘construed on broad principles of general acceptation’. The judge found that if he was ignorant of the English rules he would interpret Article 16 as extinguishing the right to sue. Interestingly the Montreal Convention actually uses the words ‘the right to damages shall be extinguished’ but the Carriage by Air Act 1961 actually includes a saving provision for contribution proceedings. The Merchant Shipping Act 1996 has no equivalent – arguably because the legislators interpreted the Athens Convention as a time-bar. Either way, in the unlikely event that a Claimant’s claim is issued within 2 years of an accident, Defendants will need to act swiftly to bring contribution claims within the same 2 year time period. (The author, Ian Miller, was counsel for the Health Authority and was led by John Ross QC)

English RTA Victim Sues MIB for Injuries in Accident Abroad: Applicable Law for Assessment of Damages?

    Bloy & Ireson v MIB [2013] LTL (QB, Manchester DR). This case arose out of a road traffic accident in Lithuania in which the Claimants (the First Claimant, a child, in particular) suffered very serious injuries. The Claimants were UK nationals domiciled in England. The tortfeasor, a Lithuanian national domiciled in Lithuania, was drunk at the time of the accident and was uninsured. The Claimants brought proceedings in the English Court against the MIB in reliance on regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. Under Lithuanian law, the liability of the Lithuanian MIB was limited to €500,000 (an award capped in this way would have left the Claimants very substantially undercompensated). Both the MIB and its Lithuanian counterpart were parties to an agreement signed by the compensation bodies in a number of European countries which aimed to define the obligations of those bodies and ensured that, where a compensation body provided compensation, it could obtain reimbursement from the compensation body local to the accident (the reimbursement available under the agreement was based on the local assessment). The issue was whether the MIB was liable to pay the Claimants compensation under the 2003 Regulations assessed in accordance with Lithuanian or English law. The court was asked to determine a preliminary issue in relation to the defendant MIB's liability to pay compensation to the claimants. It was submitted on the Claimants’ behalf that regulation13(2)(b) of the 2003 Regulations should be given its ordinary and natural meaning with the result that compensation should be assessed as if the accident had occurred in Great Britain and, therefore, with no cap on damages. By contrast, the MIB argued that, on a proper interpretation of regulation13(2)(b) and when considered alongside the European Directives it implemented, the Lithuanian cap on damages should apply. It was held that English law should apply to the assessment of damages and that there was no reason for regulation 13 to be given anything other than its ordinary and natural meaning. While regulation 13 was inconsistent with the agreement that the MIB had with equivalent bodies in Europe, there was nothing in the relevant European legislation that required any different interpretation of the 2003 Regulations. The Court applied the same reasoning as the Court of Appeal in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208, [2011] 1 WLR 2609 (a case in which the MIB had obtained permission to appeal to the Supreme Court, but had then abandoned the same before the appeal hearing took place).

Applicable Law in Tort under Rome II and English Case Management Decisions

    It’s one of the oldest chestnuts in private international law and has been brought into sharper focus by the Rome II Regulation on applicable law in tort. Assume that the English Claimant is catastrophically injured in a road traffic accident in France. The Claimant sues the tortfeasor’s French insurer in the English Courts (in line with his right to do so under section 3 of the Brussels I Regulation and the Odenbreit (2007) decision of the ECJ). Liability is not in issue and it is agreed that, by reason of Articles 4 and 15 of Rome II, French law will apply to the assessment of the Claimant’s damages. The Claimant wishes to rely on a panel of English experts (medico-legal and non-medical) of the kind usually instructed in catastrophic injury claims case managed and tried in this jurisdiction. The Defendant insurer, by contrast, wishes to restrict the Claimant to the sort of expertise that a French Court would rely upon (usually, one principal expert and a very limited number of additional experts). The Defendant’s argument is that the English Court – required to assess damages on a French law basis – needs, so far as possible, to adopt and replicate the approach that would be taken by a French Court. The Claimant argues that the selection and instruction of expert witnesses is a matter reserved to the law of the forum (English law) by reason of Article 1.3 of Rome II. An issue of just this kind arose in the very recent decision of Tugendhat J in Wall v Mutuelle de Poitiers Assurances [2013] QB 53 (QB). The following preliminary issue was tried, “Does the issue of which expert evidence the court should order fall to be determined: (a) By reference to the law of the forum (English Law) on the basis that this is an issue of ‘evidence and procedure’ within Article 1.3 of Rome II; or (b) By reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II?” The academic writing on this issue was somewhat mixed and inconclusive. However, Tugendhat J resolved the preliminary issue – thought to be the first time this question had been tried in this jurisdiction – by accepting the Claimant’s argument: the instruction of experts is a matter of evidence and procedure and, therefore, a matter for the law of the forum (English law). There is an application by the French insurer for permission to appeal.

JURISDICTION, CONSUMER PROTECTION, CRUISING BY FREIGHTER AND A MOONLIGHT FLIT (FROM AN AUSTRIAN HOTEL)

     Peter Pammer sounds like the name of a character from a (badly written) sitcom, but is in fact the name of an Austrian with an eye for a bargain. While searching online for a cheap holiday, Mr Pammer alighted on the website of a German Company: Internationale Frachtschiffreisen Pfeiffer GmbH. This entity acted as an intermediary for the sale of an unlikely sounding voyage (a holiday of sorts) from Trieste to the Far East. The vessel which was to operate the voyage was an industrial freight ship. Sailing on such a ship might not obviously have conjured thoughts of reclining on a sun deck sipping gin and tonic, but the website did promise Mr Pammer (and anyone else who read it) an onboard fitness room, an outdoor swimming pool and a saloon, together with onboard video and television access. There was also a promise of double cabin accommodation with shower and toilet and a separate living room. The website further indicated that the freighter would make ports of call from which excursions ashore could be taken. Mr Pammer was sufficiently attracted by the website offer to enter into a contract for the voyage, but this was not with the intermediary company, but, instead, with another German corporate entity: Reederei Karl Schluter.             Mr Pammer apparently refused to embark on the freighter; perhaps predictably, it was his view that the conditions on board did not meet the description provided on the website. He had paid EUR 8,500 for the voyage and sought a refund. The German company – Reederei Karl Schluter – reimbursed only EUR 3,500 and Mr Pammer brought proceedings in the Austrian Court (viz. the Court of his nationality and domicile) for the balance: EUR 5,000. Reederei Karl Schluter contested jurisdiction on the ground that it did not pursue any professional or commercial activity in Austria and, accordingly, the Austrian Court lacked jurisdiction. At first instance, the Austrian Court declared that it had jurisdiction on the ground that the voyage contract was a consumer contract (for regulated “package” travel) and the intermediary company had, by internet advertisement, engaged in advertising activity in Austria. On appeal, Reederei Karl Schluter was successful on the ground that the index contract was a contract of carriage, rather than a consumer contract (the fact that the voyage afforded – or ought to have afforded – a degree of comfort to the passenger did not convert a contract of carriage into a consumer contract). Undaunted, Mr Pammer appealed to the Austrian Supreme Court which stayed proceedings and referred the following questions to the European Court of Justice Pammer v Reederei Karl Schluter GmbH & Co KG [2010] (European Court of Justice: C-585/08) “1. Does a voyage by freighter constitute package travel for the purposes of article 15(3) of Regulation No 44/2001? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being ‘directed’ to the Member State of the consumer’s domicile within the meaning of Article 15(1)(c) of Regulation No 44/2001?” Mr Pammer’s case highlights, perhaps, a phenomenon that is increasingly experienced by English consumers who are injured while enjoying – if that’s the right word – holidays overseas. They book a holiday by means of a website. The holiday is a not a regulated package (within the meaning of the Package Travel etc. Regulations 1992). The consumer is injured while using the services provided by his or her holiday accommodation and would like to bring proceedings in this respect in the English courts. The Hotel is owned/operated by a foreign company which provides an obvious impediment to English jurisdiction. If the website operator is also foreign owned/operated then that might seem to rule out any English proceedings unless it can be said that the contract is a consumer contract and that the website activity is directed to the Member State where the consumer is domiciled (England) within the meaning of article 15(1)(c) of the Judgments Regulation. The outcome of the reference to the ECJ in Pammer (joined with another case Hotel Alpenhof GesembH v Oliver Heller [2010] (C-144/09) which involved a consumer leaving a Hotel without payment), together with a more recent ECJ decision (Muhlleitner v Yusufi & anor. [2012] (European Court of Justice: C-190/11), now suggests that where the internet trader has manifested an intention to direct activity to a Member State other than that of its own domicile/registration then article 15(1)(c) will be satisfied and the English consumer injured overseas can nevertheless pursue a claim against the foreign internet trader in England. Such intention may be evidenced by the nature of the relevant trading activity (as found, for example, in tourism services), mention on the website of an international clientele or an itinerary comprising visits to Member States other than that in which the trader is resident or even simply the use of telephone numbers with an international code. The jurisdictional hurdle for the English consumer to jump is not a very high one. Internet holiday sales – whether or not the resultant contracts are “packages” – are now very common. Often, overseas bed-booking intermediaries will assert that a consumer’s contract is with the local (overseas) Hotelier or service supplier. In such cases, the Odenbreit decision and section 3 of the Judgments Regulation provides a potential jurisdictional route to a claim against the local supplier’s (foreign) insurer in the English Courts, but Pammer/Hotel Alpenhof/Muhlleitner now provide a potential basis for suing the tortfeasor service supplier itself in England – another useful weapon in the English consumer’s jurisdictional arsenal.

A Tale of Two Countries: applicable law in a claim against a foreign (French) insurer

Kira Middleton v Allianz IARD SA v Erika Lee Middleton [2012] EWHC 2287 (QB)     This matter arose out of a road traffic accident in France on 6 February 2002. The Claimant was a child born on 28 September 1999. The Defendant was an insurance company registered in France. The Third Party was the Claimant’s mother and became a party to the proceedings when a Part 20 (additional) claim was brought against her by the Defendant. The Claimant and the Third Party were British nationals. On 6 February 2002 they were in France; the Claimant lived there with her mother at the time (in the house of her grandmother near Bergerac, France).  A family friend (also a British national), was visiting the home of the Claimant’s grandmother. The friend was driving a Renault Espace vehicle and reversed at a time when the Claimant was behind her. The Claimant was struck and knocked to the ground by the reversing vehicle. The Claimant suffered a very significant brain injury, together with other injuries of the utmost seriousness. The Claimant was in a coma for 4 weeks. She was left with very significant care, medical, physiotherapy and accommodation/equipment needs. In the period since the accident the Claimant and her mother had returned to England where the Claimant was, by the time she issued proceedings, domiciled. It was common ground that the Claimant was entitled to bring proceedings directly against the French-registered insurer in the English Courts (being the Courts of the Claimant’s domicile) by virtue of section 3 of EU (Council) Regulation 44/2001 and the decision of the European Court of Justice in FBTO Schadeverzekeringen NV v Jack Odenbreit ECJ 13 December 2007 [2007] EUECJ C-463/06. The issue in the case concerned applicable law. The parties agreed that this issue was to be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The starting point was that French law – the lex loci delicti (the law of the place where the events constituting the tort occurred) – should be applied. However, the presumption that French law applied could be displaced where the Court was satisfied that it was, by reference to section 12 of the 1995 Act, “substantially more appropriate” to apply the law of another country in preference to the lex loci delicti.  The Claimant’s case was that French law, as the law of the place where the accident occurred, was applicable to the substantive issues in the claim and, by virtue of the same and the application of the French Loi Badinter, the liability of the tortfeasor (for which the Defendant was obliged to provide insurance indemnity) was strict. The effect of this would be that contribution from the Claimant’s mother would not be available. Unsurprisingly, the Third Party made common cause with the Claimant on this issue. The Defendant’s case was that it was substantially more appropriate that English law should be applied (in preference to French law). The question of the law applicable to the claim was tried as a preliminary issue by Griffith Williams J and a reserved judgment was handed down on 1 August 2012. The Claimant’s arguments prevailed and it was held that it was not substantially more appropriate to apply English law to the substantive issues in the case, including liability. Accordingly, French law applied (with the result that the Claimant would be able to rely on the Loi Badinter). The Judge applied the conventional three-stage process to the section 11/section 12 exercise in which stage one involves identifying the issue to which it is suggested the general (section 11) rule is not to be applied (for example, the issue of liability); stage two involves identifying the factors which connect the tort to the place where it happened (France) and the factors which connect the tort to the forum (England); and, stage three requires an assessment of the significance of these factors (as they connect the tort to each jurisdiction) to determine whether section 12 should be applied (see, Roerig v Valiant [2002] 1 WLR 2304 (CA)). The Claimant, her mother (the Third Party) and their wider family had a longstanding and significant connection with France (where they were living when the accident occurred) and, although they had moved back to England in the period since the accident, it is not surprising that their connection with France persuaded the Judge that it was not substantially more appropriate to apply English law. The significance of the decision lies in the Judge’s rejection of the following (somewhat novel) arguments advanced by the Defendant at trial. First, the Judge was not persuaded that the coincidence in the nationality of the Claimant, her Mother (Third Party) and tortfeasor should be given greater weight than the domicile of these parties – and the French insurer – at the time that the accident occurred (ie. they were all domiciled in France). It had been argued for the Defendant that nationality was a more stable feature than domicile (which could, as here, change over time) and so should be given proportionately greater weight. This argument did not succeed and represents, perhaps, a more or less subtle change of emphasis from the approach taken in Edmunds v Simmonds [2001] 1 WLR 1003 (QBD) (where the country of registration of the insurer was accorded less weight) and Harding v Wealands [2005] 1 WLR 1539 (CA) where, in the Court of Appeal (before the case was appealed on a different issue to the House of Lords), nationality of the tortfeasor was given considerable weight as a material factor. Second, the Judge was similarly unpersuaded that it was more appropriate for English law to be applied because, as a result of English authority (Harding Wealands [2007] 2 AC 1 (HL(E)), the Claimant’s damages would be assessed according to English law in any event because such assessment is governed by the law of the forum even where foreign law applies to the substantive issues (the Defendant had pointed out that, at odds with the conventional approach in continental legal systems, the English common law permitted different issues to be determined by the law of different jurisdictions and also recognised a distinction between the substantive issues (determined by the applicable law of the tort) and the procedural (determined by the law of the forum)). It was held, rejecting the Defendant’s argument, that the accident occurred in France where the Loi Badinter would apply and, by implication, the injured party (and insurer) would have a reasonable expectation that the Claimant would take advantage of this – a view that was consistent with interim payments and correspondence from the Defendant insurer which, contrary to its stance in the preliminary issue, had initially proceeded on the basis that the French Loi Badinter would apply (the Judge’s conclusions in this regard represent a departure from the approach taken in Dawson & Dawson v Broughton (2007) 151 Sol J 1167). This is, perhaps, one of the last cases where applicable law will be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Accidents which post-date 11 January 2009 are now dealt with by reference to the rather different considerations of the Rome II Regulation on applicable law (see, European Parliament and Council Regulation (864/2007) on the Law Applicable to Non-contractual Obligations).

The English Claimant in Spain

  Gallagher v Wright (Manchester CC, Recorder Gregory, 25 November 2011 and 2 February 2012)   The Claimant (G) was a rear seat passenger   in a car travelling to Alicante airport, Spain when the Defendant driver (W) entered a slip road on the wrong side of the road and collided head on with a vehicle approaching in the opposite direction. The Claimant sustained multiple injuries and sued W who promptly admitted liability.   Both G and W were British nationals, domiciled in England. The car had been hired in Spain and was insured under a Spanish insurance policy. The question for the court – at preliminary issue trial – was whether the nature, extent and assessment of the damages to which the Claimant was entitled would be dealt with in accordance with English or Spanish law.   Previous entries on this blog have discussed the temporal scope of the Rome II Regulation. The recent decision of Homawoo v GMF Assurances SA – (ECJ, Case C-412-10) conclusively determines that Rome II does not apply to accidents giving rise to damage which occurred before 11 January 2009. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 was the correct instrument for determining applicable law in G’s case.   Section 11 of the 1995 Act establishes the general rule that a claim in tort will be determined according to the law of the country in which the tort occurred (in this case, Spain). Section 12 provides that the party seeking to displace the general rule must demonstrate that it is “substantially more appropriate” to apply the law of a different country. According to Waller LJ in Roerig v Valiant Trawlers [2002] 1 WLR 2304 (CA) “the word ‘substantially’ is the key word. The general rule is not to be dislodged easily”.   In Roerig, Waller LJ went on to provide guidance as to the correct approach to determining the applicable law, using a three stage exercise:   Stage Application to the facts (1) Identify the issue to which the general rule may not be applicable The assessment and quantification of damages (2) Identify the factors connecting the tort with the other country (England) - The nationality and domicile of G - The nationality and domicile of W - W had admitted 100% liability - G and W had been in a relationship in England and had come to Spain for the purposes of a short holiday - The location of G’s treatment and losses, including most of her pain, suffering and loss of amenity (3) Identify the factors connecting the tort with the country (Spain)* - The nationality and domicile of W’s insurer     In the light of the numerous factors connecting the accident with England, it was argued by counsel for W that the nationality of W’s insurer was a “crucial consideration”. The insurer stood behind W and would manage the litigation and satisfy the judgment and so was, in effect, the “real Defendant”. Furthermore, it was entirely fortuitous that G had elected not to proceed against the insurer directly in accordance with the jurisdictional route provided by section 3 of the Judgments Regulation (EU (Council) Regulation 44/2001, as interpreted by the ECJ in Odenbreit (2007)).   HELD:   The mere fact that G could have pursued W’s insurer directly did not require the Court to treat the insurer’s nationality with the same weight as if it was in fact a party to proceedings. Following Garland J in Edmunds v Simmonds [2000] [2001] 1 WLR 1003 (QB), the domicile of the Defendant’s insurer was not a factor of overwhelming weight or importance.   Further, insurers of hire cars in tourist areas had to contemplate that the majority of hirers would be foreign and that accidents involving them might result in damages being quantified according to different systems of law. The weight to be given to the factors connecting the accident with England were sufficient to displace the general rule; it was substantially more appropriate for the applicable law to be the law of England and Wales.   This case raises an interesting strategic dilemma in overseas RTA litigation: pursuing foreign insurers directly, rather than the tortfeasor, has the advantage of simplicity and certainty of recovery, but in doing so the domicile of the insurer may carry greater weight for the purpose of determining applicable law (although HHJ Armitage QC – also sitting in the Manchester County Court – thought otherwise in Kershaw v Carey & Anor. 6 September 2011).   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]