Knight v AXA Assurances
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE SHARP,Mrs Justice Sharp |
| Judgment Date | 24 July 2009 |
| Neutral Citation | [2009] EWHC 1900 (QB) |
| Date | 24 July 2009 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ08X04431 |
[2009] EWHC 1900 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Sharp
Case No: HQ08X04431
Robert Weir (instructed by Bond Pearce LLP) for the Claimant
Philip Mead (instructed by Pierre Thomas & Partners) for the Defendant
Hearing dates: 1 st and 2 nd July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mrs Justice Sharp:
Introduction
This claim for personal injuries is brought by the claimant, Mr Knight, who is domiciled here, directly against the French insurers of a French citizen domiciled in France, who knocked Mr Knight down in a car accident which occurred in France. Liability is admitted, and I am asked to determine two preliminary issues of law: (i) is the assessment of damages to be governed by English law, as the claimant contends or by French law as the defendant contends; and (ii) to what extent should the award of pre-judgment interest be governed by English law and/or French law?
It is an unusual feature of this case that I am being asked to decide these questions shortly after essentially identical questions on materially identical facts were decided by Blair J in Maher and Maher v Groupama Grand Est [2009] EWHC 38 (QB). His answer was that damages are to be assessed by reference to English law and that both English and French law are potentially relevant to the assessment of pre-judgment interest on those damages. I am told that he gave permission to appeal on both points, and that the appeal is due to be heard in October 2009.
Neither side has asked that this hearing await the outcome of the appeal however. While the claimant is content with Blair J's answer to the first question, he contends his answer to the second question was wrong (because it is said, pre-judgment interest should be assessed according to English law only). The defendant is content with Blair J's answer to the second question but seeks to argue his answer to the first question was wrong on grounds which were not, I am told, put forward in Maher.
The agreed facts in a little more detail are these. The claimant is English and as I have said is domiciled here. On 18 March 2005, he was on holiday in France in Alpe d'Huez. He was waiting to cross the road when he was knocked down by a car registered in France driven by M. Francis Poutot (FP), a French national, domiciled in France. The defendant, a French insurance company, insured FP for third party claims arising out of the use of his car under a contract of insurance, which was in force at the material time. The contract of insurance is governed by French law.
On 12 March 2008, the claimant brought this action against the defendant for damages for personal injuries. Liability has been admitted, presumably because the French law applicable to the circumstances of the accident (the Loi Badinter) imposes a form of strict liability on the driver. The outstanding issues to be resolved therefore are quantum and costs. No issue has been raised at any stage by the defendant as to its indemnity obligations or coverage under the contract of insurance with FP.
At the hearing on 8 December 2008 when interim judgment on liability was entered, Master Foster ordered the trial of three preliminary issues:
(i) To what extent are damages to be assessed by reference to English law and/or French law?
(ii) To what extent should the question of the award of interest on damages be determined in accordance with English law and/or French law?
(iii) To what extent should the question of recoverability of costs inter partes be determined according English law and/or French law?
I do not have to decide the third question since it has now been conceded by the defendant, in a letter dated 29 June 2009, that the recovery of costs is a procedural issue, and therefore falls to be determined by English law.
In Maher, there was no expert evidence before the court. In this case, expert evidence was obtained for this trial on relevant issues of French law from M. Paris, for the claimant, and from M. Segard for the defendant. Both are senior French lawyers. They have prepared a joint expert report dated 29 June 2009, from which it is apparent that there is no difference between them on the relevant principles of French law which they have been asked to consider. Neither expert gave evidence in person.
I should mention at this stage their joint conclusions on French law on the payment of interest. The agreed expert evidence is that French law provides for post judgment interest from the date of the judgment, and does not generally provide for pre-judgment interest in tort. However, pre-judgment interest is awarded in the case of road traffic accidents, under certain conditions. The insurer should tender two offers: an interim offer, 9 months after the accident date; and a final offer, 6 months after the medical examination that determined the consolidation date. Interest at twice the statutory rate is awarded against the insurer only when those steps either were not taken, or were not taken in due time. Pre-judgment interest is then awarded at twice the statutory rate on all heads of claim (pecuniary and non pecuniary) including amounts paid to third parties for medical and hospital expenses. These rules appear in the Civil Code and the Insurance Code (“Codes des Assurances”) and are treated as rules of substantive law.
The jurisdictional basis for the claim: Brussels 1
As in Maher, there is no dispute about jurisdiction. Articles 9(1) (b) and 11(2) of Brussels I ( Council Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters) entitle an injured party to sue an insurer direct on matters relating to insurance, in the place where the injured party is domiciled, provided that direct action is permitted under national law. This was confirmed by the European Court of Justice (ECJ) in Odenbreit v FBTO Schadeverzekeringen NV Case C-463/06 [2008] 2 All ER (Comm) 733, ECJ. Mr Robert Weir who appears for the claimant suggests it is not clear whether the ECJ meant the national law where the accident occurred, or where the insurer is domiciled, or the law governing the contract of insurance. But in this case, it does not matter, because the answer to all three possibilities is French law.
It is common ground between the experts that there is a direct right of action against an insurer in French law, which is regulated by Article L 124–3 of the Insurance Code. The evidence of both experts is that the direct right of action is a “dual” claim. It is based on the tortious liability of the policyholder but also requires a valid contract of insurance. If a direct claim against an insurer was brought by an injured party in France, the French court would assess the liability of the tortfeasor on ordinary tortious principles and then hold the insurer liable for such loss, subject to any issue of indemnity or coverage arising under the contract of insurance.
Question 1
The core reasoning in Maher
In paragraphs [20] and [21] of Maher Blair J explained what had led him to the conclusion that English law applied to the assessment of damages in that case:
“[20] I take as the correct starting point the law as stated in Dicey, Morris & Collins para 35–043, which is based on the majority view expressed in Australian decisions. Whether a claim can be brought by an injured party directly against the wrongdoer's insurers is a contractual question, governed by the law applicable to the insurance contract (and see para 35–065). It is not in dispute in this case that such a claim can be brought under French law. Subject to that, I agree generally with the claimants' approach. If for example, the insurers were in dispute liability under the policy, that question would fall to be determined under French law as the law governing the policy. But in the present case there is no such dispute. It is not suggested that the policy (a copy of which is not before Court) limits the insurer's liability in any relevant way. [counsel for the defendant] does not argue with [counsel for the claimant]'s assertion that the defendant's agreement was to indemnify the insured against liability in respect of claims wherever brought. Liability is admitted, and indeed judgment has been entered by consent. The result is that the insurer has to meet directly the wrongdoer's liability which in this case is a tortious one. For the purposes of the assessment of damages, the insurer's liability should equally be seen as a liability arising in tort. The conclusion is entirely consistent with the Through Transport Mutual Insurance Association case.
[21] This approach receives some support from the joint report of the Law Commission and the Scottish Law Commission on Private International Law; Choice of Law in Tort and Delict (Law Com no 193; Scot Law Com no 129) (1990). It was this report which led in due course to the enactment of the 1995 Act. The Commission's initial view was that a direct action against an insurer should be characterised as a matter in contract because of the connection to the contract of insurance. But after the consultation process, it suggested that if the underlying claim against the wrongdoer would be in tort (as it is here) then “an action against the insurer may be better seen as an extension of this tortious action”. Paragraph 3.51 reads as follows:
“In some jurisdictions it is possible for the injured party to bring a direct action against the wrongdoer's insurer rather than the wrongdoer himself. There are a number of ways in which the courts of...
To continue reading
Request your trial
-
Maher and Another v Groupama Grand Est
...3 WLR 83; [2006] 4 All ER 1, HL(E)Jefford v Gee [1970] 2 QB 130; [1970] 2 WLR 702; [1970] 1 All ER 1202, CAKnight v AXA Assurances [2009] EWHC 1900 (QB); [2009] Lloyd’s Rep IR 667Kuwait Oil Tanker SAK v Al Bader (unreported) 17 December 1998, Moore-Bick J; [2000] 2 All ER (Comm) 271, CALeso......
-
Maher v Groupama Grand Est
...Harding v WealandsUNK [2006] UKHL 32; [2006] 2 CLC 193; [2006] 2 AC 1. Jefford v GeeELR [1970] 2 QB 130. Knight v AXA AssurancesUNK [2009] EWHC 1900 (QB). Lesotho Highlands Development Authority v Impregilo SpAUNK [2003] EWCA Civ 1159; [2003] 2 Ll Rep 497; [2005] UKHL 43; [2005] 2 CLC 1; [2......
- Thwaites v Aviva Assurances