Summary
The claimant, Mr Wall, was injured in a road traffic accident which occurred in France on 14th July 2010. The claimant sought compensation from the car diver’s French insurer, Mutuelle de Poitiers Assurances. There was no dispute as to the jurisdiction and defendant’s liability.
On 21st May, the English court rendered a judgment for the claimant, stating that damages are to be assessed.
On 30th October 2012, Master Cook order a trial on a preliminary issue of “evidence and procedure” within Article 1(3).
The High Court judge held that the number of expert of evidence was an issue of procedure.
The High Court’s judgment was affirmed by the Court of Appeal. Lord Justice Jackson, sitting at the Court of Appeal, put forward the following view on the issues of “applicable law” and “evidence and procedure” within the meaning of Rome II. He held:
“34 [...]As Professor Dworkin has eloquently demonstrated, the law comprises both rules and principles. Principles do not dictate results, but they exert influence. The judge arrives at the result in any given case by applying the appropriate rules and taking into account those principles which bear upon the problem. See Ronald Dworkin, Taking Rights Seriously, Duckworth 1977 (passim) and Law’s Empire, Harvard University Press 1986 (chapter 7, “Integrity in Law”). Whether one is talking about civil law or common law, it is unduly restrictive to confine the notion of “law” to black letter rules.” [34]
“41 In my view the claimant’s contention is correct. I reach this conclusion for two reasons.
42 First, the claimant’s interpretation accords with the natural meaning of art.1(3) . The defendant’s interpretation involves imposing a strained and artificial construction on the provision. The policy argument for doing so, namely that this will achieve an outcome as near identical as possible to the decision of a French court, is unconvincing.
43 Secondly, it is unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact. The courts of each European jurisdiction have developed evidential practices with which both their judges and practitioners are comfortable. Germany, for example, has developed the “ Relationsmethode ”, in which the judge exercises a high degree of control over the evidence to be received as the case develops. The Netherlands have a different procedure, although there too the judge takes a dominant role in the questioning of any oral witnesses. France has the procedures described by the experts in this case. If an Englishman is injured in one of those jurisdictions and sues there, it is inconceivable that the local courts will meekly adopt English evidential practices. There is no way that those courts would countenance several days of oral evidence and extensive cross-examination of experts in order to assess quantum of damages. The judges and practitioners do not have the requisite experience to adopt our evidential practices. We do not have the requisite experience to adopt theirs.
44 The costs rules of each jurisdiction are linked to the evidential practices. Germany, for example, has a scheme of fixed costs for all categories of litigation. This is set out in: (a) the Court Fees Act ( Gerichtkostengesetz vom 5 Mai 2004, zuletzt geändert am 10 Oktober 2013 ); and (b) the Lawyers’ Fees Act ( Gesetz uber die Vergütung der Rechtsanwaltinnen und Rechtsanwalte vom 5 Mai 2004, zuletzt geändert am 10 Oktober 2013 ). A scale of fees is Page 12 prescribed according to the type of case, the sum in issue and the stage at which it is resolved. For example, in a commercial claim for €30 million, the costs payable by the losing party at trial are €558,510.50. This statutory costs regime would become unworkable if the German courts were suddenly required to adopt English evidential practices.” [41-44]