Court of Appeal in important cross-border decision

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The long awaited appeal decision in the case of Steven Wall v Mutuelle de Poitiers Assurances (2014) was handed down on 20 February, with all three judges firmly in agreement:  Where a claim had been brought in England by a Claimant who had been injured in France, the question of how expert evidence was to be presented for the purposes of assessing damages would fall to be determined by reference to English law, the law of the forum, rather than French law, the “applicable law”.

Mr Wall sustained serious injuries when the motorcycle he was riding was hit by a car driven by the Defendant’s insured.  Liability was not in dispute.  Quantum, likely to be substantial given the severity of injuries, certainly was in dispute.

The Claimant, with 8 expert witnesses lined up, contended that expert evidence should be determined by reference to the forum, on the basis that it was an issue of “evidence and procedure”.  The Defendant insurance company contended that expert evidence should be determined by reference to the “applicable law”, being the law of the country in which the damage occurred.

The Defendant’s submission was that the English Court must arrive at the amount of damages which the French Court would have awarded, had the action been tried in France, and the most appropriate way to secure that would be to have a French-style expert report.

The Court of Appeal did not accept the Defendant’s proposition: Nothing in Council Regulation 864/2007, known colloquially as Rome II, mandates a Court, trying a case to which foreign law applies pursuant to Rome II, to award the same amount of damages as the foreign Court would.

The judges were united in their view that Rome II could not envisage that the law of the place where the damage occurs should determine the way in which evidence of fact or opinion is delivered to the Court.  An English Court would be ill-equipped to receive expert evidence in the French manner, just as a French Court would be ill-equipped to address English-style expert evidence.

Upholding the decision of the lower Court, the Court of Appeal preferred the Claimant’s position that expert evidence is a question of “evidence and procedure” within Article 1.3 of the Regulation and found that the Court should follow its usual practice in relation to expert evidence.  Consequently the Court will establish the facts using English evidential practices, and will then assess damages in accordance with the “applicable law”.

The Court took the opportunity to pass comment on the meaning of “law applicable”:  is “law” to be construed narrowly, meaning legal rules which dictate a result, or should “law” be construed broadly, to include practices, conventions and guidelines?

The judges were quick to observe that the assessment of damages in England and Wales is by reference to a number of tools: common law rules and principles as to measure of damages and recoverable heads of loss; statutory provisions; overarching decisions of the Court; guidance from decided cases and published guidelines such as those of the Judicial College or the Ogden tables.

The unanimous agreement was that evidence should not be confined to rules which dictate a result, but rather should include “judicial conventions and practices”, such as tariffs, guidelines or formulae used by judges in the calculation of damages under the applicable law.  Per LJ Longmore:  “It seems to be agreed that French judges have a discretion to depart from these guidelines in an appropriate case and no doubt the English judge trying quantum will feel he has the same discretion.  But he should, at least, be informed of what a French judge would regard as an appropriate starting-point.”

The outcome is a practical one:  a judge will not find himself faced with a French sapiteur being cross-examined in an English Court on matters outside his or her own personal expertise, and the parties will be permitted to adduce evidence of any judicial practice or guidelines to assist the Judge in the assessment of damages pursuant to the applicable law.

Will this promote certainty and uniformity of outcome, asks Bethany Blamire, Associate with Trethowans LLP? In a post-Jackson world, even in the absence of jurisdictional issues, certainty and uniformity are seldom words equated with the English Legal System.