Two cases in the last quarter have decided questions of concern to those who practice in this area. It should be noted, however, that all the decisions are at first instance.
Bloy v Motor Insurers’ Bureau14 is concerned with the scope of the Motor Insurers’ Bureau’s (“MIB’s”) liability for accidents abroad. The claimants were UK nationals resident in England. In 2007, they suffered injuries in a road traffic accident in Lithuania caused by the negligence of an uninsured Lithuanian driver. The claimants brought proceedings in England against the MIB as they were entitled to under The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003/37) (“the 2003 Regulations”). Regulation 13 of the 2003 Regulations permits a UK resident injured in another European Economic Area (“EEA”) State15 by an uninsured vehicle to bring the claim against the MIB as the designated “compensation body” for the UK. Under arrangements between the compensation bodies of the various EEA States, the Lithuanian compensation body would then reimburse the MIB. Lithuanian law permits motor insurers to place a limit of indemnity on their policies. At the relevant time the limit was €500,000. The question for the judge was whether the MIB’s liability was capped at this figure. There was no doubt that in order to be entitled to any compensation at all, the claimants had to establish that the Lithuanian driver would have a liability to them under the law of Lithuania as the place where the injury occurred and to that extent Lithuanian law was relevant. But Regulation 13(2)(b) of the 2003 Regulations provided that the MIB was to compensate the injured party “as if … the accident had occurred in Great Britain.” The claimants’ case was that this meant that compensation should be assessed in accordance with English law (as the Court of Appeal had previously decided in Jacobs v Motor Insurers' Bureau16) and that under English law there could be no cap on the compensation. The defendant pointed to the anomalies created by this interpretation, not least that an English resident injured by an uninsured vehicle would be better off than one injured by an insured vehicle. The judge was unmoved, however, holding that Jacobs had effectively decided the issue in this case. English law applied to the assessment of compensation and the indemnity limit under Lithuanian law was irrelevant.
Wall v Mutuelle De Poitiers Assurances17 was a case management decision dealing with an issue which is at present a matter of regular dispute between claimants and defendants. The claimant was domiciled in England. He suffered spinal injuries in a road traffic accident in France caused by the negligence of a French driver. He brought his claim in the English courts against the insurer of the French driver. There was no dispute that choice of law was governed by Rome II so that French was the applicable substantive law and governed inter alia the assessment of damages.18 Equally, there was no dispute that matters of evidence and procedure were governed by English law. The dispute was as to the nature of the expert evidence necessary for an English court to assess damages in accordance with French law. The French practice is to appoint a single expert who will produce a report from which the judge will assess the damages. That expert may obtain opinions from experts in other disciplines and will then incorporate them into his report. The defendant urged the English court to appoint such an expert instead of the usual English practice of each party engaging a separate expert in each of a number of disciplines. The defendant’s submission was that:
“’law’ within the meaning of Art 15(c) includes the practices, conventions and guidelines regularly used by judges in assessing damages in the courts of the state whose law is the applicable law. The only way in which the legislative purposes of Rome II will be achieved is by rejecting the English ‘panoply of experts’ and permitting only a single expert of the kind customarily appointed by French courts, so as to arrive at a figure that would actually be awarded in France.”
The claimant’s response was that the form of report was a matter of procedure and thus of English law. CPR Part 35 did not permit experts to include opinions from outside their own area of expertise. Single experts were not mandatory in France. It was submitted that:
“Rome II does not require uniformity of outcome. Uniformity of outcome could not be assured unless the English court were to disapply its own rules on discovery, and crossexamination, which … are clearly matters of procedure or evidence.”
The judge considered a sample French report from another case and noted that by itself it would not permit an English judge to assess the damages in accordance with French law. He upheld the claimant’s position and concluded:
“This court is not required to put itself in the position of a court in France and to decide the case as that court would have decided it. This court is not required to adopt new procedures.”
Finally, readers may want to follow this link to an article by Dr. Apostolos Anthimos on the Conflict of Laws website:http://conflictoflaws.net/2013/excessive-english-costs-orders-and-greek-public-policy. Dr Anthimos notes a number of decisions of Greek courts refusing on public policy grounds to enforce costs orders made in English litigation where the costs in question were disproportionate to the quantum of damages. He notes in particular a case from York County Court in which an award of £17,000 damages was accompanied by a costs order in excess of £80,000. If Lord Justice Jackson gets his way, the Greek courts will not have to make such decisions in the future. It would be interesting, however, to see whether the Court of Justice of the European Union would uphold the approach of the Greek courts given the very limited scope national public policy is supposed to play in cross border enforceability within the European Union.