Pickard v Marshall & Ors

Under Article 4(3) of Rome II, the court must consider all the circumstances surrounding the tort when deciding whether it is manifestly more closely connected with another country. The inquiry is not confined to circumstances arising from a claim against the particular alleged tortfeasor. A road traffic accident may be considered as a multi-party event, and the involvement of other vehicles, drivers, victims and insurers may be relevant to identifying its closest connection. Article 4(3) is an escape clause, but its purpose does not justify unduly narrowing its ambit. The assessment remains subject to the high threshold of a manifestly closer connection.

The appeals arose from a road traffic accident in France involving an uninsured French driver, two British nationals, a British car and trailer, and a French recovery truck. One British national died and the other, Mr Pickard, suffered serious injuries.

In claims involving the Motor Insurers’ Bureau and the relevant insurers, Dingemans J determined preliminary issues concerning the law applicable to liability between Mrs Marshall and Mr Pickard. He held that French law governed under Article 4 of Rome II, although English law would otherwise have applied under Article 4(2) because the relevant persons were habitually resident in the United Kingdom. Mr Pickard sought permission to appeal, and Generali France Assurances made a contingent application. The central issue was whether the circumstances of the wider accident could be considered under Article 4(3).

1. Disposition. Mr Pickard’s renewed application for permission to appeal was refused. Generali’s contingent application did not require determination.
2. Construction of Article 4(3). The words “all the circumstances of the case” require consideration of all circumstances surrounding the tort. Article 4(3) does not restrict the inquiry to circumstances of a claim brought against the particular alleged tortfeasor. In this context, “tort” may refer to the road traffic accident as a whole as readily as to the cause of action between a particular victim and tortfeasor.
3. The fact that an accident forms part of a multi-party event may be highly relevant to identifying the country with which it is manifestly most closely connected. The example of a pre-existing relationship between the parties is illustrative, rather than exhaustive.
4. Article 4(3) is an escape clause from Articles 4(1) and 4(2), but that does not justify unduly narrowing its scope. The policy objectives of certainty, justice in individual cases and a flexible conflict-of-laws framework support the wording of Article 4. The court also noted Lazar v Allianz, Case C-350/14, as extending the analysis beyond immediate victims and the particular tortfeasor.
5. Dingemans J was entitled to consider that the collision occurred on a French motorway, involved a French driver and vehicle, caused the accident and injuries, and engaged claims governed by French law against the relevant insurers. His assessment that the tort was manifestly more closely connected with France was evaluative and unassailable. French law therefore applied.

• Court of Appeal (Civil Division): [2017] EWCA Civ 17 — renewed application for permission to appeal refused. The contingent application by Generali France Assurances was unnecessary.
• Queen’s Bench Division: Dingemans J held that French law governed the liability issue under Article 4 of Rome II: [2015] EWHC 3421 (QB).
• Permission stage: Tomlinson LJ refused permission on the papers.