Summary
A traffic accident occurred in France. The claimants suffered personal injuries, and they sued for damages in England. The claim was brought against the insurer of the French driver of the van which caused the accident. There was a dispute between the parties as to which law should apply to the issue of assessment of damages.
The jurisdiction of the English court over the claim against the insurer was not questioned under Brussels I. In this context, the English court engaged with the CJEU judgment in Odenbreit case. That said, the High Court and the Court of Appeal disagreed (obiter) as to whether the claimant could sue both the insurer and insured under Article 11(3) of Brussels I. On 29th January 2009, Mr Justice Blair held:
“25 […] My preliminary view is that […] Article 11(3) envisages the bringing of third party proceedings by the insurer against the insured, rather than providing an independent route by which the injured party can bring the wrongdoer before his own courts in circumstances not within the special jurisdiction provisions in the previous articles.
[…]
35 I would answer the preliminary issues as follows:
(1) Damages are to be assessed by reference to English law.
(2) Both French and English law are potentially relevant to the award of pre-judgment interest on those damages, depending on the facts” [25 and 35].
On 12th November 20009, the appeal was dismissed by the Court of Appeal. That said, Lord Justice Moore-Brick stated:
“21 I think there is a strong argument for holding that the proper administration of justice makes it essential that the claimant should be able to join both insurer and insured in the same action where it is necessary to do so to avoid the risk of irreconcilable judgments. In the present case Mr. and Mrs. Maher were entitled to bring proceedings against Groupama in this country following the Odenbreit decision and, although it is unnecessary finally to decide the matter, I think that they were entitled to join M. Kress or his estate as an additional defendant.
22 However, I think it is irrelevant in this case to enquire into either the juridical nature of the claimant's rights against the insurer under French law or into the question whether M. Kress or his estate could be sued only in France.” [2009] EWCA Civ 1191 [21-22].