Homawoo v GMF Insurance SA & others  EWHC 1941 (QB) Bacon v Nacional Suiza Cia Seguros Y Reseguros  EWHC 2017 (QB)
Rome II (Regulation (EC) No 864/2007 On the Law Applicable to Non-Contractual Obligations) introduced a new uniform EUwide regime for determining the law applicable to non-contractual obligations (such as tort and unjust enrichment). Signifi cant academic debate has centred on whether it applies to events since 19 August 2007 (the date of Rome II’s publication in the Offi cial Journal) or events since 11 January 2009. Two recent High Court judgments from the same week appear to have taken opposing views.
In Homawoo, the claim arose out of a road traffi c accident which occurred in France on 29 August 2007. The question arose as to the proper law of the assessment of damages. Under Rome II, it would have been French law. Under the old rules (from the Private International Law (Miscellaneous Provisions) Act 1995), English law would have applied. Slade J took the preliminary view that Rome II applied to events giving rise to damage which occur only on or after 11 January 2009 – but said that it would require the view of the ECJ to determine the issue conclusively.
In Bacon, the claim also arose out of a road traffi c accident, but this had occurred in Spain just over a week later than the accident in Homawoo, on 7 September 2007. The same point arose as to the proper law of the assessment of damages. Although Tomlinson J’s view on liability rendered it academic, he still expressed a view. He had been shown a copy of Slade J’s judgment. However, he cited the well-established distinction in EU law between the concepts of “date of entry into force” and “date of application”. He concluded that Rome II applies to events giving rise to damage which occur on or after 20 August 2007.
This is an issue which is plainly of considerable importance to crossborder disputes in tort and/or unjust enrichment. Litigators should be aware of the continuing uncertainty in this area, and be alive to the possible arguments which could be made on each side. Those advising should continue to consider the comparative positions in, for example, the law of assessment of damages across the EU, and focus on the most cautious position. The issue may continue to hold up the determination of disputes until and unless the ECJ is able fi nally to determine the point. It remains to be seen, though, where such a reference will come from.