In Deo Antoine Homawoo v GMF Assurance SA and others [2010] EWHC 1941 (QB) the High Court had to determine, as a preliminary issue, whether Rome II (a regime for determining the law applicable to non-contractual obligations) applied to Homawoo's claim against GMF Assurance, a French insurance company, for damages for personal injury caused to Homawoo during a road traffic accident in France. Homawoo had brought the claim in England under Articles 9(1)(b) and 11(2) of the Judgments Regulation (EC) 44/2001, which permits a party injured by an insured party to bring a claim in England directly against the insured party's foreign insurer provided it is domiciled in another Member State. If Rome II did not apply to Homawoo's claim, the assessment of damages would have been governed by English law. However, if it did apply, the assessment of damages would have been governed by French law.

The Court noted that Homawoo's road traffic accident occurred on 29 August 2007. Article 31 of Rome II stated that it applied to "events giving rise to damage which occur after its entry into force". It was not stated when Rome II came into force and therefore the default position was that it came into force on the 20th day following its publication, which in this case meant that it came into force on 20 August 2007, 7 days before Homawoo's accident. However, Article 32 of Rome II stated that Rome II applied "from 11 January 2009,..". This suggested that Rome II only applied to events which occurred on or after 11 January 2009, which was more than a year on from Homawoo's accident.

The High Court found that the temporal scope of Rome II was uncertain and therefore it could not determine whether it applied to Homawoo's claim against GMF Assurance (and therefore whether English or French law governed the assessment of damages). The Court noted that clarification of the temporal scope of Rome II was relevant to a "large number of actions which have been commenced in England" and therefore will be relevant to the insurers involved in those actions. The Court referred the issue to the ECJ. We will continue to monitor developments here on insurereinsure.com.