Maher v Groupama Grand Est
| Jurisdiction | England & Wales |
| Judge | Mummery,Moore-Bick,Etherton L JJ |
| Judgment Date | 12 November 2009 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2009 |
Court of Appeal (Civil Division).
Mummery, Moore-Bick and Etherton L JJ.
Pierre Janusz (instructed by Pierre Thomas & Partners) for the appellant.
Bernard Doherty (instructed by Beachcroft LLP) for the respondents.
The following cases were referred to in the judgment of Moore-bick LJ:
FBTO Schadeverzekeringen NV v OdenbreitECAS (C-463/06) [2007] ECR I-11321.
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; [2006] 1 AC 221.
MacMillan Inc v Bishopsgate Investment Trust plc (No. 3)WLR [1996] 1 WLR 387.
Midland International Trade Services Ltd v Al Sudairy (11 April 1990 (Financial Times, 2 May 1990)).
Patterson v Carden (unreported, 14 September 2000).
Riches v Westminster BankUNK [1934] 2 All ER 725.
Sempra Metals Ltd v IR CommrsUNK [2007] UKHL 34; [2008] 1 AC 561.
Somers v Fournier (2002) DLR (4th) 611.
Through Transport Mutual Insurance Association (Eurasia) Ltd v New India
Assurance Co LtdUNK [2004] EWCA Civ 1598; [2004] 2 CLC 1189.
Insurance — Conflict of laws — Tort — Applicable law — Road traffic accident — Assessment of damages and pre-judgment interest — Claimants domiciled in England injured in road traffic accident in France — Right to bring claim in England against insurer domiciled in France as Member State — Damages to be assessed by reference to English law — Issue of claim for compensation against driver properly characterised as matter of tort — Matter of remedy to be determined in accordance with lex fori — Statutory power to award interest a remedy — No substantive right to interest — Both English and French law potentially relevant to award of interest — Right to recover interest as head of damage matter of French law as law of tort — English court had available discretionary remedy to award interest — Fourth Motor Insurance Directive 2000/26 — Council Regulation 44/2001, art. 9(1)(b), 11(2) — Supreme Court Act 1981, s. 35A.
This was an appeal by a French insurer (Groupama) from a decision of Blairj ([2009] 1 CLC 22) that damages in respect of a motor accident in France were to be assessed by reference to English Law.
The respondents were injured when a van driven by a French national collided with their car in France. The van driver, who was killed in the accident, was insured by Groupama. Under French law the respondents were entitled to bring a claim against Groupama as the insurer of the van driver. Accordingly, they brought proceedings against Groupama in England 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.
The respondents said that damages should be assessed and interest awarded in accordance with English law; Groupama said that French law should govern both questions.
Judgment was entered for the respondents on the issue of liability. At the same time a trial was directed of the issues whether damages were to be assessed by reference to English Law or French Law; and whether the award of prejudgment interest on those damages should be determined in accordance with English law or French law. The judge held that damages were to be assessed by reference to English law, and that both English and French law were potentially relevant to the award of interest.
Groupama submitted that since the claim in this case was made directly against the insurer, whose liability sounded in contract, it was to be characterised as contractual in nature and that damages were therefore to be assessed in accordance with French law as the proper law of the contract. Moreover, the insurer's liability was to indemnify its insured in respect of his liability as a tortfeasor. He could be sued only in his country of domicile, in this case France, and therefore what had to be determined was what value a French court would place on the claim. The respondents submitted that the question was not whether the claim was to be characterised as one that sounded in contract or tort but how the relevant issue was to be characterised.
Held, Dismissing the appeal:
1. The authorities clearly supported the conclusion that English law characterised individual issues that arose for determination rather than seeking to characterise the claim as a whole. (MacMillan Inc v Bishopsgate Investment Trust plc (No. 3) [1996] 1 WLR 387 and Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co LtdUNK[2004] EWCA Civ 1598; [2004] 2 CLC 1189applied.)
2. There was a strong argument for holding that the proper administration of justice made it essential that the claimant should be able to join both insurer and insured in the same action where it was necessary to do so to avoid the risk of irreconcilable judgments. In the present case the respondents were entitled to bring proceedings against Groupama in England and, although it was unnecessary to decide the matter, the better view was that they were entitled to join the other driver or his estate as an additional defendant. (Patterson v Carden (unreported, 14 September 2000) and FBTO Schadeverzekeringen NV v OdenbreitECAS (C-463/06) [2007] ECR I-11321considered.)
3. The particular issue that arose for determination, namely, how much the respondents should receive to compensate them for the injuries they had suffered, was an issue that fell to be decided primarily in the context of a claim against the person responsible for the accident, and it was clear that it was an issue that arose in tort, not contract. It followed that damages were to be assessed by reference to English law, being a matter of remedy to be determined in accordance with the lex fori. (Harding v WealandsUNK[2006] UKHL 32; [2006] 2 CLC 193applied.)
4. Section 35A of the Senior Courts Act 1981 created a remedy rather than a substantive right to interest. Thus whilst the existence of a right to recover interest as a head of damage was a matter of French law, being the law applicable to the tort, the court had available to it the remedy created by s. 35A of the 1981 Act. The factors to be taken into account in the exercise of the court's discretion might well include any relevant provisions of French law relating to the recovery of interest. To that extent the judge was right that both English and French law were relevant to the award of interest. (Jefford v GeeELR[1970] 2 QB 130, Kuwait Oil Tanker Co SAK v Al-Bader (No. 3) (unreported, 15 December 1998); [2000] 2 All ER (Comm) 271 (CA) and Lesotho Highlands Development Authority v Impregilo SpA[2005] 2 CLC 1; [2006] 1 AC 221considered.)
Moore-Bick LJ:
1. On 29 July 2005 the respondents, Mr and Mrs Maher, were injured when a van driven by 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, Groupama Grand Est (“Groupama”).
2. Directive 2000/26/EC of the European Parliament and Council of 16 May 2000, 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 FBTO Schadeverzekeringen NV v OdenbreitECAS (C-463/06) [2007] ECR I-11321 the European Court of Justice held that by virtue of Articles 11(2) and 9(1)(b) of Regulation EC 44/2001 (“Regulation 44”) 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 damages should be assessed and interest awarded in accordance with English law; Groupama said that French law should govern both questions. (Similar issues have since arisen in another case, Knight v AXA AssurancesUNK[2009] EWHC 1900 (QB), to which our attention was drawn.) It is not clear to what extent the choice of law is likely to affect the outcome, but the parties think that it may be significant. The proceedings were therefore transferred to the Queen's Bench Division of the High Court and on 24 September Master Fontaine ordered that judgment be entered for Mr and Mrs Maher on the issue of liability. At the same time she...
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