Mr Gary Owen v Mr William Galgey

Hearing dates: 9 and 10 December 2020

THE HONOURABLE

Introduction

The Claimant is a British citizen who is domiciled and habitually resident in England. In these proceedings he brings a claim for damages for personal injury sustained by him as result of an accident in France on the night of 3 April 2018, when he fell into an empty swimming pool which was undergoing works at a villa in France (“the Villa”). The Villa is, and was at the material time, a holiday home owned by the First Defendant, whose wife is the Second Defendant. They are also British citizens who are domiciled and habitually resident here.

The Third Defendant is a company domiciled in France, and the public liability insurer of the First and Second Defendants in respect of any claims brought against them in connection with the Villa. The Fourth Defendant is a contractor which was carrying out renovation works on the swimming pool at the time of the accident, and the Fifth Defendant is the public liability insurer of the Fourth Defendant. The Fourth and Fifth Defendants are both companies which are domiciled in France.

There is no dispute as to the jurisdiction of the English courts to determine the Claim. It is also agreed between the parties that French law applies to the Claimant's claims against the Fourth and Fifth Defendants. But there is a dispute at to the applicable law in relation to his claims against the First to Third Defendants. These Defendants contend that, by operation of Article 4(2)Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (“the Rome II Regulation”), English law applies because the Claimant and the First and Second Defendants are habitually resident in England. However, the Claimant contends that French law applies by operation of Article 4(3) the Rome II Regulation because, he says, it is clear that the tort in this case is manifestly more closely connected with France than it is with England.

At a Costs and Case Management Conference on 27 February 2020, Master Thornett therefore ordered a trial of the following preliminary issue:

“Which law applies to determine the claim(s) brought by the Claimant against the First, Second and Third Defendants, pursuant to the provisions of Regulation (EC) No 864/2007 (“the Rome II Regulation”)?”

The hearing before me in relation to this issue took place via Microsoft Teams but was a public hearing. Mr Luka Krsljanin appeared for the Claimant and Mr Bernard Doherty for the First to Third Defendants. The Fourth and Fifth Defendants sent an observer but did not participate in the hearing. I am grateful to both Counsel for their helpful skeleton arguments and oral submissions.

Article 4 of the Rome II Regulation

Article 4 of the Rome II Rome Regulation provides as follows:

“ Article 4

General rule

1. Unless otherwise provided for in this Regulation, the law applicable to a noncontractual 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.” (emphasis added)

It is common ground that the damage in this case occurred in France and the law of France is therefore the law indicated by Article 4(1). However, because the Claimant and the First and Second Defendants were habitually resident in England at the time when the damage occurred, the effect of Article 4(2) is that English law will govern the claim against them unless Article 4(3) applies. The legal issue is therefore whether, in the words of Article 4(3), “it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with” France than it is with England.

The agreed facts

Paragraph 3 of Master Thornett's Order provided that, by 4pm on 19 June 2020, the parties to the preliminary issue would file and serve any evidence on which they relied, but the Master gave permission for them to file and serve an agreed statement of facts in place of witness evidence. In the event, the preliminary issue was argued on the basis of a statement of agreed facts as well as one or two points which emerge from the statements of case and the correspondence between the parties. There was no written or oral witness evidence as such.

The “Agreed Statement of Facts”, which I will set out in full, is caveated as follows:

“This is the statement of facts agreed between the Claimant on the one hand and the First, Second and Third Defendants on the other hand, for the purposes of the preliminary issue hearing regarding applicable law between the said parties, as per paragraph 3 of the court order dated 27 February 2020. It is intended solely for the purposes of that preliminary issue hearing and is without prejudice to the evidence the parties may adduce at a later stage of proceedings.”

It goes on to state:

“1. The Claimant and the First and Second Defendants have known each other for about seven years before the accident, having met for the first time in around May/June 2011. They live in nearby villages in Hampshire (Denmead for theClaimant, Hambledon for the First and Second Defendants), which are 2.5 miles apart.

2. The Claimant is a self-employed builder. Around late 2011, the First Defendant hired the Claimant to carry out minor renovation works on the First and Second Defendants' house. He was hired for major renovations in 2013 after the First and Second Defendants had obtained the necessary planning permission.

3. Since then they have been acquaintances. The Claimant also provided occasional gratuitous ad hoc assistance on minor household issues.

4. The First Defendant is the owner of the villa Les Planas in Monoblet, France, which he inherited from his mother along with his brother and sister, from whom he then bought their shares. Monoblet is located in the Gard region of Languedoc-Roussillon, in Southern France, about 40 miles north of Montpellier. He and the Second Defendant (who are husband and wife) use it as a family holiday home and let it out as a holiday rental when not using it themselves. The First and Second Defendant's family in a typical year visit the house 3 to 5 times, staying approximately 6 to 9 weeks per year in the villa, and occasionally invite friends and extended family to stay with them at the villa.

5. In 2016, the First and Second Defendants started major refurbishment works on the villa.

6. In November 2016, the First and Second Defendants were looking for someone to drive some building materials to the villa and asked the Claimant if he knew anyone who might be interested. The Claimant offered to do it. The Claimant and his wife drove down from England to Southern France and delivered these materials to the villa, which was being attended by a tradesman who was carrying out refurbishment works. The First and Second Defendant refunded the Claimant for his travel expenses. On that occasion, the Claimant and his wife stayed one night in the villa.

7. At some date prior March 2018, the First and Second Defendants had hired the Fourth Defendant, a French-domiciled company specialising in the construction and maintenance of swimming pools and associated products, to fully refurbish the outside pool. The works involved putting steps into the pool and a new liner and heating system and new paving or coping stones around the edge of the pool. The pool was drained for the purposes of the work.

8. In March 2018, in casual conversation the Second Defendant informed the Claimant that the refurbishment of the villa was nearing its end but there was some delay in getting it ready to be rented for the upcoming holiday season. She asked the Claimant to help with the laying of a laminate floor, tiling of a balcony and a small toilet floor, plus the fitting of a shower screen, which she anticipated would take only a few days.

9. In return, the First and Second Defendants invited the Claimant, his wife and children to stay at the villa for the two-weeks' Easter holiday.

10. During the day of 3 April 2018, the Fourth Defendant's staff had been carrying...