The Court of Appeal in its judgment in Committeri v Club Mediterranee SA and Generali Assurances IARD SA recently considered the question of whether a claim should be subject to English law or French law. This key issue as to whether a claim for personal injuries following an accident on a team-building event in France should succeed or fail, was dependent on whether the claim should be characterised as being one based on tort or on contract.
The claimant was climbing on the Mer de Glace, Chamonix, on a team building course arranged by his English employer. His employer had contracted with Club Mediterranee, the general booking conditions of Club Mediterranee providing that the contract was governed by English law and that both sides submitted to the jurisdiction of the English Courts.
The claim originally presented was based in part on the French Code de Tourisme which imposed a strict liability on Club Mediterranee for performance of its contractual duties, including a duty to ensure that the claimant was safe at all times; the Code is the French equivalent of the Package Travel, Package Holidays and Package Tours Regulations 1992, although unlike the 1992 Regulations, it imposes a strict liability for breach.
By the time the claim reached trial, the claimant's claim was based entirely on the strict liability provision of the Code. As there was no pleaded allegation of a breach of a contractual obligation to take reasonable care under the contract, if the claim was subject to English law, it was common ground that the claim must fail.
It is important to note at this point that the claimant was not a party to the contract and so his claim against Club Mediterranee was based on the obligations in the contract, including the Code, which were owed to him as one of the participants.
The Court was required to consider whether the claim was to be characterised as contractual or non-contractual. If it was a claim which should be characterised as based on a breach of contract, Rome I would apply and the Applicable Law would be English law (because of the choice of law clause in the contract which stipulated this); if it was a claim for a non-contractual breach of statutory duty, Rome II would apply (which stipulates that the Applicable Law is the law of the place where the damage occurred) in which case the claim would be subject to French law and therefore would succeed, given the strict liability provisions of the Code.
Having reviewed a number of European decisions, the Court identified the following principles in determining how to characterise such a claim:
- The mere fact that a contracting party brings a civil liability claim against the other party does not by itself mean that the claim concerns 'matters relating to a contract', but it will be sufficient if the conduct complained of may be considered a breach of contract or if the purpose of the claim is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract;
- Only an obligation freely consented to by one person towards another and on which the claimant's action is based is a 'matter relating to contract';
- The classification of an obligation for the purposes of Rome I or Rome II depends on the (contractual or non-contractual) source of that obligation. A contractual obligation implies at the very least an actual and existing commitment.
Taking those principles into account, as the claimant was injured in the process of undertaking an activity which Club Mediterranee had engaged to provide through its contract with his employer, the strict liability claim under the Code was based on duties owed to him under that contract (even though he was not a direct party to the contract). Accordingly, it was correct to characterise the claim as a contractual claim. As such the claim was governed by Rome I and the question of whether Club Mediterranee was in breach of contract was subject to English law.
The fact that the claim was governed by English law meant that, as the claimant had not asserted that there was a breach of the contractual obligation to take reasonable care for his safety, the claim failed.
Whilst this claim failed due to a technical pleading point, the question of whether a claim should be characterised as contractual or non-contractual is of significant importance in determining whether English law or that another jurisdiction applies. The outcome in a claim will often turn on the law applied, and questions such as this should be considered with care.