In the case of Wall v Mutuelle de Poitiers Assurances 2013 the High court has provided some useful clarification for those dealing with or involved in cross border cases.
The claimant in this case was injured in a road traffic accident whilst on holiday in France. He suffered severe injuries as a consequence. The claimant returned home and later issued court proceedings against the French driver's insurer. The claimant sought to rely upon accountancy and employment evidence in support of his claim for loss of earnings.
The issue to be decided by the Court was whether the question of what expert evidence the court should order should be decided by reference to the law of the forum or the applicable law. This boiled down to whether it was an 'issue of evidence and procedure' within the meaning of article 1.3 of Regulation (EC) 864/2007 of the European Parliament and of the Council ('Rome II'), in which case the law of the forum would apply.
The defendant argued that the issue did not fall into article 1.3, but rather into article 15 of Rome II, the effect of which would be that the question of what experts to allow would be decided by reference to the applicable law. The consequence of the defendant's submission would be that French law would apply and the claimant would be restricted to a single expert witness.
The High Court decided that the question of what experts the claimant should be entitled to instruct fell under article 1.3 of Rome II, and that consequently English law would apply to this question. On the facts, this was a matter of evidence and procedure within article 1.3.
Commenting on this case, Kelvin Farmaner, a Partner in the Insurance Litigation team at Trethowans Solicitors said; "Cross border cases involve an additional level of complexity. It is worth seeking advice from an experienced insurance litigation lawyer at the earliest opportunity."