The High Court provides further clarification on Rome II
Judgment was handed down earlier this week in the case of Winrow v Hemphill, where an English Claimant had been injured in a crash which took place in 2009 in Germany.
The Claimant was an English national who had been resident in Germany for several years prior to the accident. She returned to live in England shortly following the accident, which, it was claimed, was always her intention.
Liability for the accident had been admitted and the only issue at stake was the amount of damages the Claimant was entitled to and, in particular whether German law or English law should apply to the assessment of such damages.
Proceedings were issued in England, where the Defendant's insurer, Ageas, was domiciled.
Rome II creates the presumption (by way of article 4(1)) that the law applied in such cases should be that of the country where the damage occurred (lex loci damni).
The Claimant submitted that the accident was more closely connected with English law than German law. Amongst other submissions the Claimant asserted that the majority of her losses were and would be incurred in England, that she remained employed by an English government agency and sought to displace the general principle under Rome II by way of 'escape clauses' (under articles 4(2) and 4(3)).
The Honourable Mrs Justice Slade held that there were a number of factors weighing against the displacement of German law, particularly citing the location of the accident and the claimant's residence prior to, at the time of and immediately following the accident. She further held that in this case the relevant factors did not indicate a manifestly closer connection with England than with Germany and as such German law applied.