Gillian Marshall (widow and Administratix of the estate of Paul Marshall, deceased) v The Motor Insurers' Bureau and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 27 November 2015 |
| Neutral Citation | [2015] EWHC 3421 (QB) |
| Docket Number | Case No: HQ13X04542 AND HQ14P04884 |
| Court | Queen's Bench Division |
| Date | 27 November 2015 |
[2015] EWHC 3421 (QB)
Mr Justice Dingemans
Case No: HQ13X04542 AND HQ14P04884
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Crowther (instructed by Barratt Goff & Tomlinson) for the Claimant in the first action
Hugh Mercer QC and Marie Louise Kinsler (instructed by Weightmans LLP) for the First Defendant in the first action
Pierre Janusz (instructed by DWF LLP) for the Second Defendant in the first action
Charles Dougherty QC (instructed by Trethowans LLP) for the Third Defendant in the first action
Matthew Chapman (instructed by Irwin Mitchell) for the Claimant in the second action
Hugh Mercer QC and Marie Louise Kinsler (instructed by Weightmans LLP) for the Defendant in the second action
Hearing dates: 16, 17, 18, 19 and 20 November 2015
Introduction
On 19 th August 2012 an uninsured Peugeot motor car registered in France driven by Cindy Bivard ("Ms Bivard"), a French national, hit Mr Paul Marshall ("Mr Marshall") and Christopher Pickard ("Mr Pickard"), both British nationals, as they were standing behind a Ford Fiesta motor car and its trailer, while it was being attended to by a breakdown recovery truck on the side of a motorway in Thiais, Paris, France. The Ford Fiesta motor car was registered in the UK and insured by Royal & Sun Alliance ("RSA"), and the recovery truck was registered in France and insured by Generali France Assurances ("Generali"). The Peugeot then collided with the trailer shunting it into the Ford Fiesta which in turn was shunted into the vehicle recovery truck. Mr Pickard was thrown forward and landed clear of the vehicles but suffered serious injuries. Mr Marshall's head hit the windscreen of the Peugeot and he ended up with his leg trapped underneath the trailer, and he died at the scene. This is the hearing of a preliminary issue pursuant to the order of Master Leslie dated 17 th February 2015.
This case raises points about: (1) the law applicable to an accident involving a number of persons and vehicles which occurred in Thiais, Paris, France on 19 th August 2012. This involves a consideration of article 4 of Regulation 864/2007 (" Rome II"); (2) the application of the Loi Badinter, Loi 85–677, enacted on 5 th July 1985, ("the Loi Badinter") to the facts of this case, if French law applies; and (3) the proper interpretation of regulation 13 of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body) Regulations 2003 SI No. 37/2003, ("the 2003 Regulations").
The actions
Two actions were commenced. The first claim was made by Mrs Marshall against the Motor Insurers' Bureau ("the MIB"), the First Defendant in the first action and the Defendant in the second action. Mrs Marshall relied on the 2003 Regulations. The 2003 Regulations make the MIB liable in respect of liabilities of compensation bodies in other EEA states for losses caused by uninsured drivers. The relevant compensation body in France responsible for such losses is the Fonds de Garantie ("FdG"). The MIB denied liability, contending that the FdG would not be liable to Mrs Marshall because under the Loi Badinter Mr Pickard and RSA, as driver and insurer of the Ford Fiesta, and Generali, as insurers of the recovery truck, were liable. By amendment Mr Pickard was added as Second Defendant, and Generali was added as Third Defendant.
The second action was brought by Mr Pickard against the Motor Insurers' Bureau relying on the 2003 Regulations. The MIB deny liability and contend that Generali, as insurers of the recovery truck, are liable to Mr Pickard. There are also various Part 20 proceedings which have been stayed.
The issues at this hearing
By order dated 17 th February 2015 Master Leslie directed that certain preliminary issues should be tried. A statement of agreed facts was lodged.
I am very grateful to counsel and their respective legal teams for the excellence of their submissions and assistance in this case. It became clear from the Skeleton Arguments and the oral submissions before me that the formal preliminary issues give rise to three main areas of dispute. The first main issue is whether French or English law applies to the issue of liability for the claim made by Gillian Marshall ("Mrs Marshall") against Mr Pickard, who is insured by RSA. RSA contend that English law applies to the issue of liability for the claim made by Mrs Marshall against Mr Pickard. I should record that it is common ground that the issue of the governing law for any assessment of damages against the MIB is not to be determined by me. This is because the issue was decided by the Court of Appeal in Jacobs v Motor Insurers' Bureau [2010] EWCA Civ 1208; [2011] 1 All ER 844 which was followed by the Court of Appeal in Bloy & Ireson v Motor Insurers' Bureau [2013] EWCA Civ 1543; [2014] Lloyd's Rep IR 75. Those decisions were followed at first instance in Moreno v Motor Insurers' Bureau [2015] EWHC 1002 (QB); [2015] Lloyds' Rep 535 (QB), but a certificate for a leapfrog appeal to the Supreme Court was allowed and on 28 th July 2015 the Supreme Court granted permission to appeal. This means that that separate issue will be determined by the judgment of the Supreme Court in Moreno.
The second main issue is if French law applies, whether the Ford Fiesta motor car and recovery truck are " involved" within the meaning of the Loi Badinter, which it is common ground is the applicable French statute. If those vehicles are " involved" it is common ground that RSA, as insurer of the Ford Fiesta, and Generali, as insurer of the recovery truck, are liable to Mrs Marshall, and that Generali, as insurer of the recovery truck, is liable to Mr Pickard.
The third main issue is whether the MIB is liable under the 2003 Regulations. If neither the Ford Fiesta nor the recovery truck were " involved" in the accident, it is common ground that the MIB would be liable to compensate Mrs Marshall and Mr Pickard. If however the Ford Fiesta and recovery truck were " involved" in the accident the MIB contends that it has no liability to either Mrs Marshall or Mr Pickard. This is because the MIB contends that its liability under the 2003 Regulations is " as if it were" the FdG. It is common ground that the FdG's liability is subsidiary, meaning that if there is any road traffic insurer liable for the claims the FdG has no liability. Mrs Marshall and Mr Pickard contend that, on the proper interpretation of the 2003 Regulations, the MIB is liable because the preconditions set out in regulation 13 have been satisfied and regulation 13 provides that the MIB " shall compensate the injured party".
Governing law
It is common ground that the law applicable to the claims is to be determined by Rome II. This is because the accident occurred after 11 th January 2009, see the judgment of the Court of Justice of the European Union ("CJEU") in Homawoo v GMF Assurances SA [2011] ECR I-11603; [2012] I.L. Pr.2.
It is common ground that the recitals are a relevant aid to the proper interpretation of Rome II. Recital 6 emphasised that in order to improve the predictability of the outcome of litigation and certainty as to the applicable law, conflict of law rules needed to designate the same national law irrespective of where the action was brought; recital 11 emphasised that the concept of "non-contractual obligation" was an autonomous concept, under European law; recital 14 explained that in order to provide legal certainty and justice in individual cases the regulation provided for a general rule, a specific rule and an escape clause; recital 15 explained that the principle of lex delicti commissi was the basic solution in virtually all member states, but that the application varied and engendered uncertainty; recitals 16 and 17 explained that a connection with the country where the direct damage occurred (lex loci damni) struck a fair balance and should be applied in cases of personal injury or damage to property; and recital 18 explained the inter-relationship between articles 4(1) providing for the general rule, 4(2) as an exception to the general principle " creating a special connection where the parties have their habitual residence in the same country", and 4(3) as an " escape clause", where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.
Article 4 of Rome II provides:
(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...
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