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PI and Civil Litigation

Law - practice - procedure

17 MAR 2014

Wall v Mutuelle De Poitiers [2014] EWCA Civ 138; (2014) APIL 11

Daniel  Clarke

Barrister

Wall v Mutuelle De Poitiers [2014] EWCA Civ 138; (2014) APIL 11
Applicable law - Rome II
Summary
In Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138 the Court of Appeal has considered the approach an English court should take to expert evidence, and the assessment of damages, in cases under Rome II where there is a foreign applicable law.
As is by now well known, Article 15(c) of Rome II provides that the ‘applicable law' governs ‘the existence, the nature and the assessment of damage or the remedy claimed', ie not just what heads of loss may be claimed in a particular case (as pre-Rome II) but also their quantification. However, Article 1.3 of Rome II makes it clear, in principle, that Rome II "shall not apply to evidence and procedure...", which are therefore matters not for the applicable law, but for the law of the forum.
20 February 2014
Court of Appeal
Longmore, Jackson and Christopher Clarke LJJ
The claimant (who is English) suffered ‘very severe' injuries in a motorcycle crash with a French driver in France in 2010. French law was the applicable law. Liability was admitted. A claim was issued directly against the French driver's insurer.
The court was asked to determine as a preliminary issue whether the issue of what expert evidence the court should order fell to be determined by reference to English law and practice, or French. In particular, the court was required to determine the scope of ‘evidence and procedure' in Article 1.3 and ‘applicable law' in Articles 4.1 and 15(c).
The approaches of the 2 jurisdictions differ greatly in this regard. The claimant sought permission ‘as is customary in English litigation of this kind' to rely upon reports from 8-10 separate experts. The defendant submitted that the court should follow the much more restrictive French practice, which entails giving permission for only 1 expert (exceptionally 2). This expert may collate the evidence of more specialised experts (‘sapiteurs') who do not report directly and may not be cross-examined.
The High Court ([2013] EWHC 53 (QB) summarised here on 28 June 2013) rejected the defendant's approach. Questions of expert evidence, particularly how many experts should be permitted to give evidence, were matters of ‘evidence and procedure' within Article 1.3. They therefore fell to be determined by reference to English law, ie the law of the forum. They fell outside Rome II altogether. Further, CPR Part 35 did not provide for the court to give permission to an expert to convey to the court the opinions of other experts whom he has consulted on matters outside his own expertise. Rome II did not require the English court to put itself wholly in the position of a court in France and to decide the case as that court would have decided it, nor to adopt new procedures.
The defendant appealed.
Decision
The Court of Appeal upheld the High Court on the expert evidence issue.
It also determined a further point, although this was not strictly necessary for disposal of the appeal. This was whether, for the purposes of assessing damages under a foreign applicable law, 'applicable law' should be understood to include ‘judicial conventions and practices', including ‘particular tariffs, guidelines or formulae" used by judges (eg the equivalent of the JC Guidelines). In this particular case, the damages in question were general damages, or their equivalent.
The Court of Appeal decided that ‘applicable law' was broad enough to encompass such material. In this particular case, it included the ‘Dintilhac' guidance (judicially approved and used in French courts). The task of the trial judge was, therefore, with assistance of expert evidence as to the foreign law and practice, to apply the ‘Dintilhac' guidance and any prevailing tariffs for non-pecuniary damage. This was subject to the same margin of discretion to depart from it as a French judge would have, no more no less.
Comment
The decision provides helpful guidance to courts and practitioners as to the correct approach to expert evidence and the assessment of damages in cases where a foreign applicable law applies under Rome II.
It is interesting to note that, although the terms ‘applicable law' and ‘evidence and procedure' in Rome II are clearly autonomous EU law concepts, there was no discussion of a preliminary reference to the CJEU. Different approaches are already being taken in other EU jurisdictions. For example, in Kelly v Groupama [2012] IEHC 177 the Irish High Court in a materially identical case held that the use in French courts of the ‘Dintilhac' guidance was ‘merely a non-obligated practice'. The Irish courts were free to depart from the guidance and to cross-check damages with the awards available in Irish law, raising the award of damages to match Irish law if the French award were considered inadequate.
It may be that a preliminary reference will be made in the future, perhaps from a different jurisdiction.
It is also interesting to note Longmore LJ's comment that, ‘in light of Recital (33)', expert evidence as to the foreign applicable law and practice was neither ‘necessary or called for in respect of the pecuniary losses suffered' (paragraph [33]). On the face of it there is no reason why such evidence would be any less necessary when it came to assessment of special damages, as opposed to general damages. Nor would it appear that Recital (33) (which only applies in road traffic cases) alters the need for the court to apply the law and practice of the applicable law as regards special damages. It will have to be seen whether this obiter dictum, which was not developed or discussed further, is taken up in future cases.
Daniel Clarke, Barrister, 3 Hare Court

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