Introduction
Background
Expert procedure
Soft law


Introduction

It seems fairly uncommon(1) 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 Assurances(2) the Court of Appeal confounded both of these prejudices.

The Court of Appeal considered the application of the EU Rome II Regulation (864/2007) on the law applicable to non-contractual obligations. In particular, it examined the extent to which Rome II imports 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 Court of Appeal's conclusions are significant to commercial law not only 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 the EU Rome I Regulation(3) applies, as that regulation contains a materially identical provision.

Background

The case arose from a serious motorcycle accident. Mr Wall was on holiday in France when a French car driver, M Clement, negligently failed to give Wall the priority that he was due at a junction. Wall suffered serious injuries which, among other things, rendered him partially paraplegic.

As he was entitled to do under the EU Brussels Regulation (44/2001), Wall proceeded to sue Clement's insurer in the English courts. Mutuelle de Poitiers Assurances (MPA) admitted liability. The English court was left with the task of deciding the quantum of damages. These were going to be substantial on any measure, due to the severity and permanence of Wall's injuries.

The issue which took the case to the Court of Appeal was how the English court should approach the determination of the amount of Wall's losses. There was no dispute that under Articles 4 and 15 of 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 – that is, 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 that it should take to expert evidence.

Expert procedure

In the usual way under the English adversarial system, 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 that 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 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 "[t]his Regulation shall not apply to evidence and procedure", this cannot have come as much of a surprise. In its judgment, the Court of Appeal referred to comments that the High Court judge had made in initially refusing leave to appeal:

"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."

The Court of Appeal 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 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. The Court of Appeal 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."

Soft law

Although it was not strictly necessary to consider the issue in order to determine the appeal, perhaps the most interesting parts of the judgment were in relation to the definition and scope of the law which the English court were bound to apply to 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 that arose before the Court of Appeal was the extent to which the English court is required to look beyond the 'black-letter' French law (applicable to non-contractual obligations) and into the practices and conventions which the French courts adopt when measuring damages for personal injury. Although this particular case concerned personal injury, this issue was 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 that the Court of Appeal elected to address was whether, in the course of determining 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, 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. Thus, 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 Lord Justice Jackson called on 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 were 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 – that is, on French judicial procedure in this regard. Naturally, it must 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.

For further information on this topic please contact Simon Hart or Jake Hardy at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (simon.hart@rpc.co.uk or jake.hardy@rpc.co.uk). The RPC website can be accessed at www.rpc.co.uk.

Endnotes

(1) But not unheard of; Owosu v Jackson (ECJ, 2005/C28102) springs to mind.

(2) 2014 EWCA Civ 138.

(3) EU Regulation 593/2008 on the law applicable to contractual obligations.