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PI and Civil Litigation

Law - practice - procedure

08 JUN 2015

Bianco (Widow and Administrix of the estate of the late Vladimiro Capano on behalf of herself and dependent children) v Bennett [2015] EWHC 626 (QB)

Bianco (Widow and Administrix of the estate of the late Vladimiro Capano on behalf of herself and dependent children) v Bennett [2015] EWHC 626 (QB)
Fatal Accident - Subrogated Claim - Foreign Law

High Court, Queen's Bench Division

12 March 2015

Warby J

Summary
The claimant was not able to rely on foreign law which had not been pleaded or proved by expert evidence to bring subrogated claims.

Detail

Vladimiro Capano was an Italian who was resident in Turin who worked for an Italian company, Tesco Go SpA ('Tesco Go') but commuted weekly from Italy to Woking to work on a project. Mr Capano died after being hit by a car being driven by the defendant whilst crossing the road. The defendant admitted being two thirds liable for Mr Capano’s death. The claimant pleaded claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. There was no dispute that these claims were valid in principle.

The claimant also made two 'subrogated claims' on behalf of Tesco Go and the Italian Workers Compensation Authority, which were first pleaded in the Schedule of Loss. The Master ordered a preliminary issue trial on whether the subrogated claims were recoverable by the claimant, subject only to the claimant proving that the sums had been, or were to be, paid to the claimant. The claimant asserted that there was an obligation to seek the subrogated claims under article 1916 of the Italian Civil Code. The Italian law and associated EU regulations had not been pleaded before the oral submissions.


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English law holds that foreign law must be pleaded and proved as a question of fact by way of expert evidence; the claimant did not make an application to adduce expert evidence. The claimant argued that the trial was to decide if the sums were recoverable in principle and for Italian law matters to be pleaded subsequently. The defendant argued, and the Judge agreed, that the Master’s intention was for the issue of the recoverability of the subrogated claims to be decided at the trial.

The documents on Italian law which the claimant had placed in the trial bundle were not admissible evidence of the foreign law as documents can usually only be introduced to support expert evidence of the same. The Judge held that the subrogated claims, as pleaded, could not proceed. Further the Judge held that, had the claimant pleaded and proved the facts that she sought to rely on, the claims would have failed in any event as the subrogated claims in this matter fell outside of the definition of 'subrogation' in the foreign law on which the claimant sought to rely.

Comment

This is a reminder to litigators to ensure that they have the necessary experts for all aspects of their case.

Adam Dyl & Jodee Mayer, Anthony Gold
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