Wall v Mutuelle De Poitiers Assurances

Where foreign law governs the assessment of damages under Council Regulation 864/2007, the forum continues to govern evidence and procedure. An English court therefore determines the permitted expert evidence, its form, the number of experts and cross-examination under English procedural law.

The applicable foreign law governs recoverable heads of loss and the basis of assessment. It does not require the English court to reproduce the foreign court’s evidential process or guarantee an identical award. Foreign law may extend beyond binding rules to judicial principles, conventions, guidelines, tariffs and formulae regularly used to assess damages. The English court should have regard to those materials to the same extent, and with the same discretion, as the foreign court.

The claimant suffered severe spinal injuries in a road traffic accident in France. The defendant motor insurer admitted liability, leaving quantum as the outstanding issue. French law governed the assessment of damages under Council Regulation 864/2007, commonly called Rome II.

The claimant sought permission under Civil Procedure Rules 1998 Part 35 to rely upon experts from several disciplines. The insurer contended that the court should instead use a French-style report prepared by one or two medico-legal experts with assistance from specialist advisers.

Tugendhat J, in [2013] EWHC 53 (QB), held that the expert-evidence question was governed by English law because it concerned evidence and procedure within article 1(3) of Rome II. The insurer appealed. The central issue was whether the form and extent of expert evidence were governed by the law of the forum or by French law governing the assessment of damages.

1. Disposition. The appeal was dismissed. Longmore LJ gave the leading judgment. Jackson and Christopher Clarke LJJ agreed. The selection, number and manner of presentation of expert evidence were matters of evidence and procedure governed by English law.

2. Article 1(3) of Council Regulation 864/2007 excludes evidence and procedure from Rome II. It would be unrealistic and inefficient for an English court to adopt another jurisdiction’s evidential system. Questions concerning expert reports, the disciplines represented, oral testimony and cross-examination therefore fall to be determined under the law of the forum. The Master retained responsibility for deciding how many experts were reasonably required and whether their evidence could be combined.

3. Rome II does not require the court seised to reproduce the amount that a court in the country of the applicable law would award. Article 15 requires the forum to import the applicable substantive rules governing recoverable loss and the basis of assessment. It does not import foreign methods for proving the facts or expert opinions. Different national procedures may consequently produce different outcomes.

4. The court also gave guidance on the content of the applicable foreign law. “Law” in article 15(c) is not confined to binding rules which dictate a result. It includes principles, judicial conventions, practices, tariffs, guidelines and formulae regularly used by foreign judges when assessing damages. An English court applying French law should therefore have regard to the Dintilhac headings and any prevailing French tariffs for non-pecuniary loss to the same extent as a French judge. It should also possess the same discretion to depart from them.

5. Evidence of the figures normally adopted by the Paris Court of Appeal could accordingly be permitted. In light of recital 33, equivalent evidence was unnecessary for the claimant’s pecuniary losses. The precise evidence to be admitted remained a case-management decision for the Master.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 138, the court unanimously dismissed the insurer’s appeal and upheld the determination that English law governed the expert-evidence procedure. It also gave guidance concerning evidence of French judicial guidelines and tariffs.

2. High Court, Queen’s Bench Division: Tugendhat J held in [2013] EWHC 53 (QB) that the expert-evidence issue was governed by the law of the forum as a matter of evidence and procedure under article 1(3) of Council Regulation 864/2007.

3. Master: Master Cook ordered trial of a preliminary issue concerning whether English or French law governed the expert evidence to be ordered.