Summary
The claimant, Homawoo, was injured in a road traffic accident which occurred in France on 29th August 2007. The claimant sought compensation from the defendant, GMF Assurance. The question was: Were the damages to be assessed under English law or French law? The answer to this question was dependent on whether Rome II entered into force or not. The problem was that the drafting of Articles 31 and 32 of Rome II was somewhat ambiguous. The English High Court held that a reference to the Court of Justice was necessary. Mrs Justice Slade made the following observations:
“50 A construction of art.31 to provide that the Regulation shall apply to events giving rise to damage which occur on or after January 11, 2009, would give legal certainty. This certainty would apply irrespective of whether litigation were to be or had been commenced. It would also achieve a fixed date irrespective of the different litigation procedures in different countries. However in light of the clear language of art.31 that the Regulation is to apply to events giving rise to damage which occurred after its entry into force, I cannot reach such a determination without a ruling from the European Court of Justice.
51 As far as counsel are aware there is no case in this country or in any other Member State of the European Union which decides the temporal effect of Rome II . If the meaning and effect of art.31 is that Rome II is to apply to events giving rise to damage which occur after the “entry into force” of the Regulation on August 20, 2007, what is the meaning and effect of “shall apply from 11th January 2009” in art.32 ? Is it “apply to proceedings commenced” or “apply to determination by a court” after that date? What is the meaning and effect of art.31 ? Should it be interpreted so that the Regulation shall apply to events giving rise to damage which occur on or after January 11, 2009?
52 The answer to the questions raised by the preliminary issue for determination will, as recognised by counsel, be relevant to a large number of actions which have been commenced in England. They are also of relevance in resolving claims without resort to litigation. I understand from counsel that there has been no reference to the ECJ raising the issue of the temporal effect of Rome II . The answers to the questions raised by the preliminary issue are not clear. I have come to the conclusion that it is necessary to have the interpretation of the ECJ of arts 31 and 32 of Rome II in order for this court to determine the preliminary issue referred to it.” [50-52]
The Court of Justice held that Rome II “must be interpreted as being applicable to events giving rise to damage occurring after 11 January 2009.” Case C-412/10 [37].