Maher and Another v Groupama Grand Est
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Neutral Citation | [2009] EWCA Civ 1191 |
| Date | 2009 |
| Court | Court of Appeal (Civil Division) |
Conflict of laws - Tort - Assessment of damages - Claim against tortfeasor’s insurer - English claimants injured in collision in France with vehicle driven by French national - French driver killed - Proceedings in England against French insurers - Whether damages to be assessed under English law or French law - Whether pre-judgment interest on damages awarded to be determined under English law or French law - Whether injured party entitled to join insured as defendant to direct action against foreign insurer -
The English claimants suffered personal injuries in a road traffic collision in France in which the French driver of the other vehicle was killed. The claimants brought a claim for damages against the defendant, the French insurer of the deceased French driver. Judgment on liability was entered by consent. On the hearing of preliminary issues, the judge held (1) that the assessment of the claimants’ damages was a matter to be determined by reference to English law and (2) that both French and English law were potentially relevant to the question of the award of pre-judgment interest on any damages awarded, depending on the facts.
On the defendant’s appeal—
Held, dismissing the appeal, (1) that for the purposes of resolving problems in the conflict of laws, English law recognised a distinction between substantive matters, which were governed by the lex causae, and procedural matters, such as remedies, which were governed by the lex fori; that, since many cases depended on the resolution of more than one issue, English law characterised individual issues that arose for determination as being either substantive or procedural rather than characterising the claim as a whole; that the issue of what damages the claimants should receive to compensate them for the injuries they had suffered fell to be determined in the context of a claim against the person responsible for the accident, the deceased French driver, and was an issue that arose in tort, not contract; that, therefore, since the assessment of damages in tort was a procedural matter the claimants’ damages were to be assessed by reference to English law, being the lex fori (post, paras 8, 22, 42, 43).
(2) That section 35A of the Senior Courts Act 1981 created a remedy exercised at the court’s discretion rather than a substantive right to interest; and that, therefore, although the existence of a legal right to claim interest was to be classified as a substantive matter, to be determined by French law as the lex causae, whether such a substantive right existed or not an award of interest under section 35A of the 1981 Act was to be classified as a procedural matter, governed by English law as the lex fori, although in exercising its discretion the court might well take into account any relevant provisions of French law relating to the recovery of interest (post, paras 33, 37, 40, 41, 42, 43).
Per curiam. A claimant who brings a direct action against a foreign insurer pursuant to article 11(2) of Council Regulation (EC) No 44/2001 is entitled to join the insured as an additional defendant to the same action, pursuant to article 11(3), where it is necessary to do so to avoid the risk of irreconcilable judgments (post, paras 21, 42, 43).
The following cases are referred to in the judgment of Moore-Bick LJ:
Harding v Wealands
Jefford v Gee [
Knight v AXA Assurances
Kuwait Oil Tanker SAK v Al Bader (unreported) 17 December 1998, Moore-Bick J; [
Lesotho Highlands Development Authority v Impregilo SpA
Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [
Midland International Trade Services Ltd v Al Sudairy
Odenbreit v FBTO Schadeverzekeringen NV
Patterson v Carden (unreported) 14 September 2000, Morland J
Riches v Westminster Bank Ltd [
Sempra Metals Ltd (formerley Metallgesellschaft Ltd) v Inland Revenue Comrs
Somers v Fournier (
Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd
The following additional case was cited in argument:
Tolofson v Jensen [
APPEAL from Blair J
By a claim form issued in the Mayor’s and City of London Court on 24 April 2008 the claimants, Gerard Maher and Daniela Maher, claimed damages against the estate of Marc Kress, deceased, a French national, in respect of personal injuries suffered in a road accident on 29 July 2005 in France, when their car had been in collision with a van driven by the deceased, who had been killed in the accident. The claim was subsequently amended to substitute as defendant the deceased’s insurer, Groupama Grand Est. Liability having been admitted by the defendant on 22 February 2006, on 24 September 2008 judgment was entered by consent and Master Fontaine ordered the trial of the following preliminary issues, inter alia: (1) whether damages were to be assessed by reference to English law or French law; and (2) whether the question of the award of pre-judgment interest on those damages should be determined in accordance with English law or French law. By a judgment handed down on 23 January 2009 Blair J held that: (1) damages were to be assessed by reference to English law; and (2) both French and English law were potentially relevant to the award of pre-judgment interest on those damages, depending on the facts.
By an appellant’s notice issued on 13 February 2009 and pursuant to permission granted by the judge the defendant appealed on the grounds (1) that as a matter of English private international law, the direct claim against the insurer was to be characterised or classified as a contractual claim because in French law the claim involved the enforcement by the victim of the claim which the insured would have had for an indemnity under the policy; and (2) that since the tortfeasor was not also being sued in England, and could only be sued in France, the real question was what could the claimant obtain in a claim against the tortfeasor in a jurisdiction where he could be sued, ie France, and therefore, the applicable law to determine the quantification issue was French law.
The facts are stated in the judgment of Moore-Bick LJ.
Pierre Janusz, solicitor (of
Bernard Doherty (instructed by
The court took time for consideration.
12 November 2009. The following judgments were handed down.
MOORE-BICK LJ
Background1 On 29 July 2005 the respondent claimants, Mr and Mrs Maher, were injured when a van driven by a M Marc Kress collided with their Range Rover on the RN5 road in the area of Mont Sous Vaudrey, France. M Kress, who was killed in the accident, was insured by the appellant defendant, Groupama Grand Est (“Groupama”).
2 Parliament and Council Directive 2000/26/EC of 16 May 2000 (OJ 2000 L181, p 65), usually known as the Fourth Motor Insurance Directive (and to which I shall refer simply as “the Directive”), obliged member states to ensure that a person injured in a motor accident occurring in a member state other than that in which he resides should have a direct right of action against the insurer of the person responsible for the accident. However, it was left to member states to decide how the Directive should be implemented. In the case of some member states, including France, such a direct right of action already existed.
3 In Odenbreit v FBTO Schadeverzekeringen NV (Case C-463/06) [2008] 2 All ER (Comm) 733 the European Court of Justice held that by virtue of articles 11(2) and 9(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L12, p 1) a person injured in a motor accident who has a right to bring proceedings directly against the insurer of the driver responsible for his injury is entitled to bring those proceedings before the courts of the member state in which he is domiciled, provided that the insurer is domiciled in a member state.
4 Groupama is domiciled in France and it is common ground that under French law Mr and Mrs Maher are entitled to bring a claim against it as the insurer of M Kress. Mr and Mrs Maher are domiciled in the United Kingdom. Accordingly, on 24 April 2008 Mr and Mrs Maher brought proceedings against Groupama in the Mayor’s and City of London Court claiming damages for personal injury. Their right to do so was not challenged and liability was not disputed. All that remained was for damages to be assessed and for the court to decide what amount, if any, should be awarded by way of interest in respect of the period prior to judgment.
5 At that point for the first time a dispute arose. Mr and Mrs Maher said that...
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