The interpretation of the wording of EC Regulation 864/2007 (Rome II) has been one of the hot topics in the field of international travel litigation for the past 18 months or so. Claimant and defendant lawyers agree that, following the implementation of Rome II, it is the law of the country where the accident occurred which should ordinarily apply to the assessment of damages in relation to any new instructions. However, what is currently not agreed, and what has been the matter of some debate, is the temporal scope of Rome II ie from what date did its terms begin to apply?
The majority of claimant lawyers argue that it applies from the latest possible date (11 January 2009), to maximise the number of clients who will benefit from English levels of damages. On the flipside, defendant lawyers argue that its terms apply from the earliest possible date (19 August 2007), to minimise their clients' exposure. A decision must therefore be reached to clarify when Rome II applies. In essence, there are three main options:
- Rome II should apply for all accidents which occur after 19 August 2007;
- Rome II will apply to all accidents which occur after 19 August 2007, but if legal proceedings are issued prior to 11 January 2009, then Rome II will not apply;
- Rome II will only apply to accidents which occur after 11 January 2009.
In practice, some parties have agreed settlement of their cases on a middle ground, accepting that neither party really knows for sure how the law should be interpreted. However, in the case of Homawoo v GMF Assurances & Others, the parties agreed that guidance should be sought from the court and therefore applied for a preliminary hearing on the issue.
The application was ultimately referred to the High Court, which considered the submissions made by each party. Mrs Justice Slade decided that, in light of the number of cases before the English courts which will be affected by the determination of the issue, and the fact that no previous referral had been made, the sensible approach would be to seek guidance from the European Court of Justice.
The decision by the High Court will have far-reaching consequences. Most cases currently pending before other English courts on this issue will have to be put on hold pending the outcome. As soon as a decision is made, claimants will have to consider their options and what evidence they need with reference to the applicable law.