A case on whether an Italian insurer could bring a subrogated claim against an English defendant in England
The claimant is the widow of an Italian killed by an English driver in England. Liability was admitted and the claimant claimed on her own behalf under the Fatal Accidents Act 1976 ("FAA") (and as administratrix of her husband's estate under the Law Reform Act 1934).
The widow had received a payment from an Italian insurer and her husband's Italian employer. Under Italian law, the insurer and employer were entitled to recover these payments from a tortfeasor (and it was a term of the insurance policy that the widow was required to bring the claim). The widow sought to bring this subrogated claim against the English defendant (as she was required to do so under her insurance policy). The issue was therefore whether this claim was recoverable in the English proceedings.
Warby J was critical of the fact the claim had not originally been pleaded. In any event, there was no head of loss under the FAA which was apt to include the subrogated claim. It was accepted that the assessment of damages was governed by English law. Nevertheless, the claimant sought to rely on Article 85 of EC Regulation 883/2004 on the co-ordination of social security systems. Article 85 provides, broadly, that Member States must recognise subrogation rights which are provided by other Member States. However, the judge held that an obligation to recognise such rights did not extend to an obligation on the English court to recognise a substantive claim which could be advanced under Italian law, but was not permitted under English law. English law was the only basis on which the claimant could advance her claim and since the receipt by the claimant of any sums paid by her late husband's insurer and/or employer are disregarded in the assessment of her claim as irrelevant, the subrogated claim could not be maintained.