Owen v Galgey & Ors

Under Article 4 of the Rome II Regulation, the law indicated by habitual residence may be displaced where, considering all the circumstances, the tort is manifestly more closely connected with another country. The assessment concerns the centre of gravity of the tort, not merely the claim against an individual defendant. Relevant factors may include the place of the tort and direct injury, the location and condition of property, the habitual residences and nationalities of the parties, applicable laws governing other claims, related contracts and insurers, and pre-existing relationships closely connected with the tort. Article 4(3) imposes a high threshold, but it contains no additional requirement that the facts themselves be exceptional. On the facts, France had the manifestly closer connection, so French law governed the claims against the English-resident defendants.

The claimant, habitually resident in England, was injured after falling into an empty swimming pool at the defendants’ holiday villa in France. The First and Second Defendants owned the villa, and the Third Defendant insured them. The pool works were being undertaken by a French contractor, whose liability and insurance claims were governed by French law.

The parties agreed that French law governed the claims against the contractor and its insurer. The preliminary issue was whether English law nevertheless governed the claims against the First to Third Defendants under Article 4(2) of the Rome II Regulation, or whether Article 4(3) displaced that result because the tort was manifestly more closely connected with France.

1. French law applicable. The court declared that French law governed the claims against the First, Second and Third Defendants.
2. Article 4(2) can apply in multi-party litigation to a claim by a claimant against a defendant sharing the claimant’s habitual residence. Article 4(3) may nevertheless displace the result for that particular pairing. The court must consider all circumstances surrounding the tort, including connections arising from other parties and claims.
3. The Article 4(3) inquiry is comparative. It asks whether the tort is manifestly more closely connected with the alternative country than with the country indicated by Article 4(1) or Article 4(2). The burden lies on the party seeking displacement, and the threshold is high. A clear preponderance of connecting factors is sufficient; there is no separate requirement that the case be unusual or exceptional.
4. Relevant circumstances included the place of the tort and direct injury, the location and condition of the French property, the French contractor’s works, the French-law contracts of insurance and construction, the French-law claims against other defendants, the parties’ residences and nationalities, and any closely connected pre-existing relationship. Indirect loss suffered later in England was less weighty than the place of direct damage.
5. The claimant’s informal arrangement with the First and Second Defendants was not shown, on the available material, to be contractual. Even if contractual, its performance concerned work and accommodation at the French villa and would probably have been governed by French law. Those matters did not outweigh the stronger French connections.
6. France was the centre of gravity of the situation. The accident, injury, property, pool works and related legal relationships were rooted there. The English habitual residence and relationship between the claimant and the First and Second Defendants did not alter the conclusion.