Wall v Mutuelle de Poitiers Assurances
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Jackson,Lord Justice Christopher Clarke |
| Judgment Date | 20 February 2014 |
| Neutral Citation | [2014] EWCA Civ 138,[2013] EWCA Civ 996 |
| Docket Number | Case No: B3/2013/0603 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2014 |
Neutral Citation Number: [2014] EWCA Civ 138
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Jackson
and
The Right Honourable Lord Justice Christopher Clarke
Case No: B3/2013/0603
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE TUGENDHAT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Benjamin Browne QC & Ms Marie Louise Kinsler (instructed by Greenwoods Solicitors) for the Appellant
Mr Robert Weir QC & Mr Matthew Chapman (instructed by Stewarts Law) for the Respondent
Introduction
In July 2010 Mr Steven Wall took a short holiday in France on his motorcycle. On 14 th July he was travelling north on the D347 from Oradour-sur-Glane towards Saumur. As he approached the junction with the D42 a motor car driven by a M. Clement (who was insured with the defendant) failed to give Mr Wall the priority to which he was entitled and hit Mr Wall's motorcycle. Mr Wall sustained very serious injuries, including a severe spinal cord lesion, and now suffers from partial paraplegia. He can walk up to 400 yards on crutches but is otherwise in a wheelchair. The insurers have admitted M. Clement was negligent and that they are accordingly liable to Mr Wall and that they can be sued in England pursuant to the Council Regulation on Jurisdiction (No 44 of 2001) and the Fourth and Fifth Motor Insurance Directives (No 2000/26/EC and No 2005/14/EC). The only remaining issue is the quantum of the damages to which Mr Wall is entitled. On any view the claim is a substantial one.
This appeal relates to the way in which Mr Wall is to be entitled (or obliged) to prove his damages. In the old days, a claimant would have been confined to the heads of damage permitted by the law of the place where the tort of negligence was committed but the amount of such damages and the procedure by which those damages were to be calculated would have been for the law of the court where the action was brought. That was (broadly) what the Private International Law (Miscellaneous Provisions) Act 1995 provided, as interpreted by the House of Lords in Harding v Wealands [2007] 2 A.C. 1. Now the private international law for countries within the EU is set out in Council Regulation 864/2007 on the law applicable to non-contractual obligations. This is known colloquially as Rome II, Rome I dealing with the law applicable to contractual obligations. I shall refer to it as "the Regulation". It has been in force since 11 th January 2009.
The dispute between the parties relates to the way in which expert evidence is to be adduced. The claimant, in the usual English way, has asked for permission, pursuant to CPR 35, to call expert evidence in a number of relevant disciplines. The defendant insurers say that that is not appropriate since the applicable law is the law of the country in which the damage occurred and is thus French law. Under French law the court selects one (or sometimes) two medico-legal expert(s) to assist the judge, although such expert(s) may have recourse to experts in other disciplines if he/they feel it necessary and may incorporate their opinions in the report made for the court. These sub-experts are known to French lawyers as "sapiteurs". There is usually very limited opportunity to cross-examine the expert chosen by the court or his sapiteurs.
On 30 th October 2012 Master Cook ordered a preliminary issue to be tried in the following terms before he made any order in respect of expert evidence:—
"Does the issue of which expert evidence the court should order fall to be determined:
a) By reference to the law of the forum (English law) on the basis that this is an issue of "evidence and procedure" within Article 1.3 of Rome II; or
b) By reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II."
Tugendhat J answered the question as follows:—
"The issue of which expert evidence the court should order falls to be determined by reference to the law of the forum (English law), on the basis that this is an issue of "evidence and procedure" within article 1.3 of Rome II."
He refused permission to appeal as did Sir Richard Buxton on the papers. Sir Richard observed:—
"An English judge … would need to be persuaded that a revolution had taken place before he countenanced the determination of procedures for adduction of evidence by reference to any system of law other than the lex fori…"
The insurers' renewed oral application for permission to appeal came, as it happens, before me. Mr Browne QC for the insurers relied on the view of Professor Adrian Briggs that Rome II had brought about the termination of English private international law and its replacement by a European private international law now applicable in the United Kingdom (see (2009) 125 LQR 191). This seemed on the face of it a possible indication that Sir Richard's projected revolution might have taken place and I therefore gave permission to appeal.
The Regulation
The relevant provisions of Rome II are:—
" Article 1
Scope
1. This regulation shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).
…
3. This Regulation shall not apply to evidence and procedure, without prejudice to Articles 21 and 22.
…
Article 4
General Rule
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 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.
Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
b) the grounds for exemption from liability, any limitation of liability and any division of liability;
c) the existence, the nature and the assessment of damages or the remedy claimed;
d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
…."
The Submissions
The preliminary issue was ordered because at a case management conference before Master Cook, the claimant had indicated an intention to call, if permitted, eight (now perhaps ten) expert witnesses:—
i) a consultant surgeon in spinal injuries;
ii) a consultant clinical psychologist;
iii) a care expert;
iv) an expert on the costs of rehabilitation;
v) an accommodation expert;
vi) an assistive technology expert;
vii) a neuro physio therapy expert;
viii) a transport expert.
The further two are an orthopaedic surgeon and an employment and/or accountancy expert in relation to future loss of earnings.
If the action proceeds in the usual way and each side is given permission to call a number of experts there will be an order for exchange of reports, for a meeting of the experts in each discipline and for joint reports setting out points of agreement and disagreement.
The defendants wish to avoid all this and indicated to Master Cook that they would ask him to order a French-style expert report compiled by a single agreed (or court appointed) expert or pair of experts who will then incorporate into the report any necessary expertise from other experts/sapiteurs. The defendants accept that each of the areas which the English experts would cover relates to a permissible head of damages as a matter of French law, so that (to that extent) no problem arises under Article 15(c) of the Regulation. But they contend that, on the true construction of the Regulation, the English court must arrive (as nearly as possible) at the amount of damages which the French court would have awarded, if the action had been tried in France and that the only way (or the best way) to secure that outcome is to have a French-style expert report. The defendants have helpfully provided the court with an example of what such a report might look like as applied to this case, compiled by two French experts.
The claimant's response is that any question of how expert evidence is to be presented to the court is a question of "evidence and procedure" within Article 1.3 of the Regulation and that the Master should order expert reports as he would in an English action.
Same result as in France?
Nothing in the Regulation mandates a court, trying a case...
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