When within Rome I or II, do as your EU counterpart might (or might not) do but not in quite the same way they would do it.
It seems fairly uncommon1 for a personal injury action to become a precedent of interest to, and significance for, commercial lawyers. It seems even more unusual to find the writings of Ronald Dworkin cited in such a context. In Steven Wall v Mutuelle de Poitiers Assurances2, the Court of Appeal confounded both of these prejudices.
The Court of Appeal considered the application of the Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II). In particular, it examined the extent to which Rome II imports the foreign law and procedure into the English courts in cases where that Regulation applies, and the scope and meaning of “law” in that context. The conclusions which the Court of Appeal reached have significance in commercial law both in the context of non-contractual causes of action to which Rome II applies, but also in the context of contractual causes of action to which Rome I3 applies, as that contains a materially identical provision.
The case arose from a sadly very serious motorcycle accident. Mr Wall was on holiday in France, when a French car driver, M Clement, negligently failed to give to Mr Wall the priority he was due at a junction. Mr Wall suffered very serious injuries which amongst other things rendered him partially paraplegic.
As he was entitled to do under the Brussels Regulation, Mr Wall proceeded to sue M Clement’s insurers in the English courts. Mutuelle de Poitiers Assurances (MPA) has admitted liability. The English court is left with the task of deciding the quantum of damages. On any measure these are going to be substantial, due to the severity and permanence of Mr Wall’s injuries.
The issue which took such a case to the Court of Appeal was how the English court should approach the determination of the amount of Mr Wall’s losses. There was no dispute that under Articles 4 and 15 of the Rome II, these non-contractual losses were to be
measured according to French law. Moreover, at the highest level of abstraction French law on damages in delict is identical to that in the corresponding English law of tort, ie it provides for compensation in full for all losses which flowed directly from the unlawful act. The contention which arose was how the court should approach this task procedurally and, in particular, the approach which it should take to expert evidence.
In the usual way under the English adversarial system, Mr Wall had sought permission at the case management conference to instruct an array of expert witnesses to support different aspects of his damages, with the expectation being that MPA would instruct its own array of competing expert witnesses. MPA opposed this, and invited the court to make an order that there should be a report from one or two joint expert witnesses, who would rely where necessary on other experts they had in turn consulted (the latter being known as “sapiteurs” in French procedure). In essence, MPA argued that in order to get to a result as close as possible to that which would be reached in the French courts, the English court should follow the model by which the expert evidence would have been presented to a French court if the matter had been pursued there. The court ordered a trial of a preliminary issue as to whether the expert evidence should follow the English or the French model, and the appeal arose out of the judgment in that preliminary issue trial.
MPA’s argument met with short shrift both at first instance and in the Court of Appeal. Given that Article 1.3 of Rome II expressly states that “This Regulation shall not apply to evidence and procedure”, this cannot have come as much of a surprise. In his judgment, Longmore LJ refers to comments that Burton J made in initially refusing leave to appeal, in which Burton J remarked crisply that “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 … ”
In the Court of Appeal, Lord Justices Longmore, Jackson and Clarke unanimously rejected MPA’s contention that Article 1.3 should be construed narrowly, such that the court should follow the French evidential procedure. None of the appeal judges accepted the MPA’s policy argument that this was necessary in order for the court to ensure that its judgment was as close as possible to that which a French court would have reached. Longmore LJ rejected the premise of this argument, holding that it was:
“ … inevitable that the same facts tried in different countries may result in different outcomes and I am unable to accept [MPA’s] starting point that the English court must strive to reach the same result as a French court would, let alone [its] finishing point that evidence must be given to the English court in the form of a French-style expert report.”
Although it was not strictly necessary to consider the issue in order to determine the appeal, perhaps the most interesting parts of the judgments were in relation to the definition and scope of the “law” which the English court will be bound to apply to Mr Wall’s case under Rome II. Article 15 states that:
“ … the law applicable to non-contractual obligations under this Regulation shall govern in particular … (c) the existence, the nature and the assessment of damages or the remedy claimed”.
The issue had arisen before the Court of Appeal as to the extent to which the English court was required to look beyond the “black letter” French law (applicable to non-contractual obligations etc) and into the practices and conventions which the French courts adopt when measuring damages for personal injury. Although the particular case concerned personal injury, this is obviously of wider import. The same principles would apply in respect of any other type of loss and damage which falls under Rome II or indeed under Rome I (Article 12 of which is materially identical).
In the personal injury context, the English courts have a systemised body of “soft law” in the form of the Judicial College Guidelines. The question the Court of Appeal elected to address was whether, in the course of determining Mr Wall’s case, the English court should consider and be guided by equivalent “soft law” in the French courts. In fact, it seems that there is no direct equivalent to the Judicial College Guidelines in France. However, it was explained to the Court of Appeal that the President of the Second Civil Chamber of the French Court of Cassation has classified different headings of loss in a document known after him as “the Dintilhac list”. This list has no force in law, and nor does it specify amounts or limits for each of the categories of loss. However, the evidence was that the French courts tend to classify awards of damages under these headings, and in respect of at least one of those headings also pay reference to a discretionary tariff which has been set out by a Paris Appeal Court. So, the question was whether such non-binding guidelines form part of the “law” which the English courts are bound to apply under Article 15 of Rome II.
It was in relation to this that Jackson LJ called upon that staple of English law jurisprudence courses for assistance:
“As Professor Dworkin has eloquently demonstrated, the law comprises both rules and principles. Principles do not dictate results, but they exert influence. The judge arrives at the result in any given case by applying the appropriate rules and taking into account those principles which bear upon the problem. See Ronald Dworkin, ‘Taking Rights Seriously’, … and ‘Law’s Empire’.”
The Court of Appeal unanimously found that the English judge should approach such soft law “principles” in the same way that a French court would if it was hearing the case. The “law” which Article 15 refers to is not limited to “black letter” binding law. Accordingly, the discretionary guidelines should be followed to the extent that a French judge would do so.
This must be another matter for expert evidence, ie on French judicial procedure in this regard. Naturally, that will have to be given in the proper adversarial manner in accordance with English procedure, so that is another expert for each party to add to their array.