piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Conflicts of law: Just when you thought it was safe to go back into the water…

Those personal injury practitioners who have had to grapple with the question of which law to apply to an accident which occurred abroad are bound to be aware of the vexed issue surrounding ‘the temporal scope of Rome II’. Rome II (the universal name given to EC Reg 864/2007) was intended to usher in a new era of simplicity and uniformity in this field, making it as easy as possible for lawyers throughout the EU to determine which law to apply to virtually all the issues in the case. In particular, the Rome II provides (subject to certain narrow exceptions) that the law of the country where the accident occurred will apply to the assessment of damages, as well as to liability-related issues. This is in direct contrast to the previous regime (under the Private International Law (Miscellaneous Provisions) Act 1995), which provided that the assessment of damages was a matter for the law of the court seized of the case (i.e. English law).

 

The problem, however, was that it was decidedly unclear from which date Rome II applied. Following two contradictory decisions of the English High Cout,  the issue has worked its way up to the European Court of Justice (Homawoo C412-10). Although the judgment of the court itself is awaited, the opinion of the Advocate General (which is often, if not always, followed by the court) has just been delivered. It is a masterpiece of Eurocentric teleological reasoning, managing to ignore entirely the express words of the Regulations. The conclusion is that Rome II applies only to accidents which have occurred after 11th January 2009. If the opinion is followed by the Court, the practical implications are significant. There are likely to be many hundreds, if not thousands, of cases, either pre- or post issue, which now fall to be decided under the previous regime and which will benefit from the more generous approach to the assessment of personal injury damages under English law.

 

One can almost hear the anguished cries of foreign insurers from this side of the English Channel…

 

  • Greta Petrea

    9/28/2011 6:09:50 PM |

    Rattling estimable report can be organize on blog .

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