EUPillar Thwaites v Aviva Assurances [2010] I.L.Pr. 47

Summary

The claimant was domiciled in England; he suffered injuries in an accident which occurred in a French adventure park. The action was brought in England; the defendant was the adventure park’s insurer who was domiciled in France. The defendant challenged jurisdiction of the English court. 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. In this context, Judge Matheson Q.C. stated: “16 […] It will be noted that art.11(2) of Regulation 44/2001 speaks of “actions brought by the injured party directly against the insurer where such direct actions are permitted ”: (my emphasis). As it happens, French law permits direct actions against insurers in all cases (see above) whereas in English law the right of direct action against an insurer arises only in cases arising from the use of motor vehicles. 17 Hence the issue which has arisen in this case, the claimant contending that English courts have jurisdiction to try his case and the defendants arguing that the action must be brought in the courts of France. Ultimately the answer to this question depends upon whether the question is one relating to the substantive law—namely the law of France—or whether it is a matter of procedural law which falls to be determined according to English law.” [16-17].