Summary
The claimant, Jacobs, was injured in a road traffic accident which occurred in Spain on 19th December 2007.
A claim form was issued on 16th December 2008. The issue of governing law was important because the vehicle which caused the accident was uninsured. The driver of the vehicle was a German national who was then a resident in Spain. In the circumstances, the claimant sought compensation from the defendant, Motor Insurance Bureau (MIB), which was the UK compensatory body for the purposes of the relevant EU directive.
On 19 June 2009, Irwin J made an order, indicating that, among other things, the issue of applicable law as to the assessment of damages must be tried. An important preliminary was: Were the damages to be assessed under English law or Spanish law?
On 1st February 2010, the English High Court concluded that Rome II applies, and damages must be assessed under Spanish law. The High Court judge felt that no preliminary reference was necessary. Mr Justice Owen noted:
“[…] The reason for inviting the court to determine the preliminary issue was the recognition that there are differences between the law of England and Wales (and of the other two jurisdictions making up the UK) and the law of Spain with regard to evaluating liability and assessing compensation. For the purposes of this hearing it was not necessary to identify such differences; but I address the preliminary issue on the premise that the computation of the claim under the law of England and Wales or under the law of Spain may yield different results.
37 If the defendant assesses and pays compensation to the claimant on the basis of the law of England and Wales, and is reimbursed by the Spanish guarantee body, the latter’s subrogated claim against Mr Bartsch, if it chose to enforce it, would be brought in the Spanish courts, and adjudicated upon under Spanish law. That would be wholly inconsistent with the objective of Rome II, namely that in such cases the same law should apply, whatever court is seized of the matter.” [36-37]
The Court of Appeal reversed the decision of the High Court, holding that Rome II does not apply. Lord Justice Moore-Bick, with whom the other judges agreed, stated:
“38 The judge considered that reg.13(2)(b) contained a choice of proper law that was inconsistent with the provisions of Rome II . That led him to consider the doctrine of supremacy as developed in decisions such as Amministrazione delle Finanz dello Stato v Simmenthal S.p.A. (106/77) [1978] E.C.R. 629 and thence to the conclusion that the rules of Rome II must prevail. However, as I have said, the parties agreed that reg.13(2)(b) is not a choice of law clause, rightly, in my view, because it is concerned with defining the existence and extent of the MIB’s obligation as the body appointed to provide compensation for injury suffered in road traffic accidents rather than with determining the liability of the wrongdoer. That being so, Rome II has no application to the assessment of the compensation payable by the MIB under reg.13 and it is therefore unnecessary to consider the issues relating to the construction of art.4 that would arise if it did so.” [2010] EWCA Civ 1208 [38]
The decision of the Court of Appeal was somewhat surprising in view of the fact that the right to compensation did arise from a road traffic accident which occurred in Spain, and Rome II is clearly applicable (see Article 1 of Rome II). No reference was made to the CJEU. (See more: Beaumont and Danov, The EU Civil Justice Framework and Private Law: ‘Integration through [Private International] Law’)