Wall v Mutuelle De Poitiers Assurances

Under Rome II, the applicable law governs substantive matters such as the heads and assessment of damage. The law of the forum governs evidence and procedure. The court’s decision about what expert evidence should be ordered, including whether to appoint one or more joint experts under CPR Part 35, is procedural. The English court is not required to reproduce French litigation procedures, adopt a French court’s expert system, or place itself in the position of a French court determining the damages. The procedural issue therefore falls to be determined under English law.

The claimant suffered severe injuries in a road collision in France caused by the negligence of the defendant’s insured. Judgment on liability was entered, leaving damages to be assessed. The claim was brought in England under Brussels I. The issue arose during case management: whether the court should determine the expert evidence required by English law as the law of the forum, or by French law as the applicable law under Rome II.

1. The court determined that the issue of what expert evidence should be ordered fell to be decided under English law, as the law of the forum, because it was an issue of evidence and procedure within Article 1(3) of Rome II.

2. Article 4(1) and Article 15(c) directed attention to French law for substantive matters, including the existence, nature and assessment of damage. They did not require the English court to adopt the procedural system used by French courts or to reproduce the level of damages that a French court would award.

3. The court accepted that the distinction between substance and procedure was not determined merely by the fact that French rules concerning medical experts appeared in the French Code of Civil Procedure. The substance of the rules and their function under EU law were material.

4. The English rules concerning expert evidence, including whether there should be one or more single joint experts, were matters of case management governed by CPR Part 35. CPR r.35 did not permit a single expert to convey opinions from other experts on matters outside that expert’s expertise.

5. The available French material did not establish what damages a French court would award in the present case. Nor did Rome II require the English court to create new procedures in order to approximate French practice. The issue was accordingly governed by English law.