Summary
A car accident occurred in France. The injured party, who was domiciled in England, brought a claim for personal injuries in England. The action was brought directly against the French insurer under Brussels I.
The jurisdiction of the English court was contested by the defendant who submitted that the claimant did not have a direct cause of action against the defendant under English law.
The judge dismissed the jurisdictional challenge, noting that the French law must apply. It was held that the English court had jurisdiction under Articles 9(1) (b) and 11(2) of Brussels I. It should be noted that, in this case, the choice of law issue was addressed under Private International Law (Miscellaneous Provisions) Act 1995 with a view to determining whether the English court had jurisdiction.
H.H.J. Birtles held that:
“7 I prefer the submissions of Miss Deal. It seems to me beyond dispute that the law applicable to the insurance contract binding the defendant is French law. It is a French contract of insurance entered into by French insurers for the use on French roads of a French registered motor vehicle owned by a French policy holder (Ellis Béton) covering a driver Timothy Duffy residing in France. There is a direct right of action under French law. That is agreed by the parties. I reject Mr Dougherty's submission that “national law” means the law of the forum rather than the law applicable or governing the contract of insurance. Odenbreit makes the position clear. See also Dicey, Morris and Collins: The Conflict of Laws First Supplement at paras 33-393 and 33-396 (14th edn. 2006). The decision of Mr Justice Blair in Maher supports my conclusion although the point in issue is not argued in that case but conceded. However, the facts were identical. I also accept Miss Deal's submission that if, contrary to the judgment in Maher , the claimant must establish a direct right of action against the defendant under the law applicable to the tort, this is governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 . This overturned the old rule of double actionability whereby, to bring a claim, the claimant had to establish that the wrong would have been actionable if committed in England as well as not being justifiable by the law of the place where it was done.” [37]