Christopher Pickard (First Appellant) v (1) Gillian Marshall (First Respondent) (2) Motor Insurers' Bureau (Second Respondent) (3) Generali France Assurances (Third Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 19 January 2017 |
| Neutral Citation | [2017] EWCA Civ 17 |
| Docket Number | Case No B3/2015/4279 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2017 |
[2017] EWCA Civ 17
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE DINGEMANS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No B3/2015/4279
Case No: B3/2015/4359
Mr Robert Weir QC (instructed by DWF Solicitors) for the First Appellant
Mr Charles Dougherty QC (instructed by Trethowans Solicitors LLP) for the Second Appellant
In attendance at the hearing: Ms Sarah Crowther and Mr Gus Baker (instructed by Barratt Goff & Tomlinson for Mrs Marshall); and Ms Marie Louise Kinsler (instructed by Weightmans LLP) for Motor Insurers' Bureau
Hearing date: 13 December 2016
Approved Judgment
Introduction
This is a renewed application by Mr Christopher Pickard for permission to appeal a decision of Dingemans J after refusal on the papers by Tomlinson LJ. This is also a contingent applicant for permission to appeal by Generali France Assurances should Mr Pickard be granted permission to appeal.
Background
The facts are described in detail in Dingemans J's judgement: [2015] EWHC 3421. In summary there had been a road traffic accident in France involving on the one hand a French driver, Ms Bivard in a Peugeot, who was uninsured and apparently asleep at the wheel, and on the other hand two British nationals, Mr Marshall and Mr Pickard, who were returning to the UK after working in France for several months. Mr Pickard had been driving a Ford Fiesta motor car and trailer. The Fiesta was registered in the UK and insured by Royal & Sun Alliance ("the RSA"). Mr Marshall was Mr Pickard's passenger. They were standing at the side of a motorway in Paris behind the Ford and trailer, while the trailer was being repaired by the driver of a recovery truck. The recovery truck was registered in France and insured by Generali France Assurances ("Generali").
The Peugeot was travelling at some 90 mph, hit Mr Marshall and Mr Pickard, collided with the trailer, shunting it into the Fiesta which in turn was shunted into the recovery truck. Mr Pickard was thrown forward and landed away from the vehicles, suffering serious injuries. Mr Marshall's head hit the Peugeot's windscreen and he was thrown forward. The trailer fell on his leg. He died at the scene.
Mr Marshall's widow brought an action against the Motor Insurers' Bureau ("the MIB") because Ms Bivard was uninsured. It denied liability on the basis that its equivalent in France, the Fonds de Garantie, was not liable to compensate Mrs Marshall and therefore it had no liability. Instead, it contended, under the liability principles applying under French law for road traffic accidents Mr Pickard and RSA, as driver and insurer of the Fiesta, and Generali, as insurer of the recovery truck, were liable. A second action was brought by Mr Pickard against the MIB. Again, the MIB denied liability and claimed that Generali was liable.
The issue of liability
Dingemans J's task was to determine a number of preliminary issues. The first issue, which is the subject matter of this application, is whether French or English law applies to the issue of liability as between Mrs Marshall, as claimant, and Mr Pickard, as defendant. RSA claimed that English law applies. Dingemans J held that it is French law which governs.
It was accepted that this issue was to be determined in accordance with Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations, known as Rome II. Article 4 of that Regulation provides as follows:
"General rule
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question."
After considering the Recitals to the Regulation, setting out Article 4, and reviewing case law (not on all fours with the present case), Dingemans J said that he appreciated that it was important not to turn first to the exception in Article 4(2) to the general rule in Article 4(1), and that it was also important not to use Article 4(3) as a starting point: [16]. He then rejected a submission of some text book writers that Article 4(2) only applied where one person brought proceedings against another person, and both were habitually resident in the same EEA state. That would exclude the situation of a number of persons injured in coach crashes: [17]. In his judgment Article 4(2) applied, on the natural wording of the article, to the claims made by Mrs Marshall against Mr Pickard: [18]. So French law applicable under Article 4(1) was replaced by English law, since Mr & Mrs Marshall and Mr Pickard were habitually resident in the UK.
Turning to Article 4(3) Dingemans J rejected the view of some text book writers, not argued for by the parties in the case,...
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