In Tim Knight v AXA Assurance [2009] EWHC 1900 (QB) the court was asked to determine two preliminary issues of law: whether the assessment of damages, where liability is admitted, should be governed by English law; and to what extent the award of pre-judgment interest should be governed by English law and/or French law.

Mr Knight who lived in England, was knocked down while holidaying in France by a car, registered in France, and driven by a French national, domiciled in France. The driver was insured by a French insurance company, AXA Assurance, for third party claims. Mr Knight brought a claim against AXA Assurance for damages for personal injuries. Judgment on liability was entered and the court had to decide on the preliminary issues, quantum and costs.

Sharp J found, following Maher v Groupama Grand Est [2009] EWHC 38 QB (Maher v Groupama), that the insurer's liability was for the insured's tort and the level of damages to be awarded was a tortious issue, not a contractual one. Since the Brussels I Regulation (Council Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters) permitted an individual to bring a direct action against the insurer in the member state of his domicile, it followed that the insurer must submit to the procedural rules of the member state in which it was sued. Therefore, damages were to be assessed by reference to English law.

On the second preliminary issue Sharp J, again following Maher v Groupama, held that a claim for pre-judgment interest was to be characterised as an issue arising out of tort and was not a matter of procedure. Therefore, any question as to whether there was a right to claim interest by way of damages depended on French law. Sharp J, having regard to the expert's report, found that French law did recognise pre-judgment interest as a head of loss. Its assessment, however, would be governed by English law as a matter of procedure.

The decisions in Knight v AXA and Maher v Groupama are identical and show that foreign insurers can have a claim brought against them in an English court for a tort in a foreign jurisdiction and that damages will be assessed by reference to English law. Moreover the English courts are likely to look to whether pre-judgment interest is available in the foreign jurisdiction although assessment will be governed by English law.