Homawoo v GMF Assurance SA & Ors

The temporal scope of Regulation (EC) 864/2007 (Rome II) could not be determined conclusively without guidance from the European Court of Justice. The expressions “entry into force” and “shall apply from” should not readily be construed as referring to the commencement or determination of court proceedings. Such an interpretation would create uncertainty and permit tactical manipulation. The court inclined towards a fixed event-based rule, but considered that the clear wording of Article 31 prevented it from deciding whether the relevant date was 20 August 2007 or 11 January 2009 without an authoritative ruling.

The claimant sought damages arising from a road traffic accident in France on 29 August 2007. Proceedings were issued in England on 8 January 2009 and the claim proceeded against the defendant insurer. Judgment had been entered for the claimant, with damages to be assessed.

The preliminary issue was whether Rome II applied. The answer affected whether French law governed the assessment of damages under Article 15, or whether English procedural law applied under section 14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995. The central question was the meaning and temporal effect of Articles 31 and 32 of Rome II.

1. The preliminary issue was not finally determined. The court expressed no concluded view on whether Rome II applied to the claim.
2. The wording of Article 32 did not justify construing “shall apply from” 11 January 2009 as meaning that Rome II applied only to proceedings commenced on or after that date, or only when a court determined an issue after that date. The Regulation contained no reference to commencement or determination of proceedings.
3. The same expression appeared in Article 29, which imposed obligations unrelated to court proceedings. The court therefore saw no linguistic basis for giving it a different meaning in Article 32.
4. Making the application of Rome II depend on the issue or determination of proceedings would undermine legal certainty and the foreseeability of decisions. It could also encourage tactical manipulation, produce different results for similar claims, and create difficulties in settlements and mediation.
5. A fixed event-based rule would better promote certainty. However, Article 31 expressly provided that Rome II applied to events causing damage occurring after its entry into force. The court could not decide, without an authoritative ruling, whether that wording meant events after 20 August 2007 or events on or after 11 January 2009, nor what independent effect Article 32 had.
6. The court concluded that an interpretation of Articles 31 and 32 by the European Court of Justice was necessary before the preliminary issue could be determined. The issue was accordingly left unresolved pending that interpretation.