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Private International Law and PI: final gasps of the 1995 Act?

As we move further and further away from 11 January 2009 (the date of application of the Rome II Regulation (EC No 864/2007) which governs applicable law in tort: see, Homawoo v GMF Assurances SA [2012] Case C-412/10) we see less and less of Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (the domestic statute which used to govern these matters before the European Union piled in with Rome II). Those of us old enough to have dutifully ploughed through the 1995 Act provisions, cases like Roerig v Valiant Trawlers Ltd, Harding v Wealands and the pages of Dicey, Morris & Collins lovingly devoted to all this stuff, might have thought that cases like Middleton v Allianz IARD SA [2012] EWHC 2287 (QB) represented the final application of the 1995 Act (ss 11 and 12) for the determination of applicable law. However, the last couple of months have seen the publication of not one, but two important QB judgments in the personal injury field in which the English Court has again grappled with the question (per s 12 of the 1995 Act) whether it is “substantially more appropriate” to apply to the tort the law of a country other than that of the place where the events constituting the tort occurred.

In Donkers  v Another v Storm Aviation Ltd [2014] EWHC 241 (QB) a German national domiciled in Germany, employed as an aircraft technician by a German company (a Third Party to a Part 20 claim), travelled to England for a couple of hours or so in order to work on an aircraft operated by his employer. The Defendant, an English limited company, supplied a gas rig to the Claimant so that he could inflate a tyre on the aircraft. The rig was faulty and over-inflated the tyre which exploded and seriously injured the Claimant. Among a number of issues determined on a preliminary issue trial basis was whether s 12 of the 1995 Act should be applied so that German, rather than English, law governed the Claimant’s claim against the Defendant (liability was admitted and, accordingly, the real issue was whether German, rather than English, law should determine the heads of recoverable loss). It was determined that English law should govern the tort (pursuant to s 11) – applying the guidance of the Court of Appeal in Roerig to the factors connecting the tort to the two relevant countries. It was not substantially more appropriate to apply German law because the location of the accident (England) coincided with the national law of one of the parties (the Defendant – an English registered company). The Court’s Anglo-centric approach to applicable law in tort in the main action was echoed in its approach to a contractual indemnity relied on by the Defendant for recovery against the Claimant’s employer: the contract, containing the indemnity, was performed in England and was relied on by an English registered company: accordingly, and pursuant to article 4 of the Rome Convention, the Defendant’s claim for indemnity was governed by English law.

The second very recent case is Lawrence Allen & others v Depuy International Law Ltd [2014] EWHC 753 (QB). This was a claim brought by a number of Claimants based overseas (New Zealand, Australia and South Africa) against the English registered manufacturer of allegedly defective prosthetic hip replacements. Among a number of preliminary issues, the Court was required to decide whether the event giving rise to damage, in the context of this product liability action, had occurred prior to 11 January 2009 (so that the 1995 Act, rather than the Rome II Regulation, would apply to determine applicable law in tort). The Court held, applying CJEU case law, that the 1995 Act applied. The next issue was whether it was substantially more appropriate, pursuant to s 12 of the 1995 Act, to apply English law, rather than the law of New Zealand, Australia and South Africa (as the case may be, being the countries in which the Claimants were located when they sustained injury). The judgment (of Stewart J) is as clear and conscientious an application of the guidance of the Court of Appeal in Roerig as it is possible to find. The conclusion was that the law of New Zealand, Australia and South Africa should be applied (as appropriate). As in Donkers, the Court’s inclination was to apply the lex loci delicti (where this coincided, as it did in Lawrence Allen, with the national law of one of the parties). As a matter of additional interest, it was held that, even if English law had been applied, the Consumer Protection Act 1987 would not have assisted the Claimants because, on a proper construction, this UK statute did not have extra-territorial effect.

Donkers and Lawrence Allen might provoke nostalgia in conflicts lawyers of a certain vintage, but – in the longer term – they have as much practical importance/utility as the Proustian madeleine. Rome II is a very different place and, as Wall v Mutuelle de Poitiers Assurances SA [2014] EWCA Civ 138 reminds us, they do things differently there.

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