Posts Tagged http://www.bailii.org/ew/cases/EWCA/Civ/2014/138.html

(Polish) Ius novit (English) curia. The High Court settles Polish law in Syred v PZU.

Postscript 27 November 2017 for the opposite view in the common law (ius non novit curia) see recently [2015] UKEAT 0130_17_1110 Strickland v Kier.

As readers will be aware, the Rome II Regulation on the law applicable to non-contractual obligations, harmonises Member States’ governing law rules on non-contractual obligations (not entirely accurately known in short as ‘tort’). Article 15 clarifies that the scope of the law applicable is very wide, and indeed includes matters which may otherwise be considered to be procedural (hence subject to lex fori): I explained this mechanism in my posting on WallSyred V PZU again concerns Article 15(c) Rome II:

Article 15. Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
…(c) the existence, the nature and the assessment of damage or the remedy claimed;…

The case concerns contributory negligence and quantum of this claim by Mr Syred for injury loss and damage suffered in consequence of a road traffic accident in Poland on 10 February 2010. He and his then girlfriend Kate Cieslar were rear seat passengers in a Fiat Punto, driven by her brother Mr Michal Cieslar, which was involved in a collision with a BMW, being driven by Mr Waclaw Bednorz. The collision caused Mr Syred to be ejected from the Fiat and in consequence to suffer serious injuries, in particular to his brain. He has no memory of the accident. Judgment on primary liability against the Defendants was entered by consent in the two actions on 25 September 2012 and 1 July 2014. Ms Cieslar’s claim in respect of her injuries has been settled.

There is no dispute between the experts for the defence and the plaintiff that a rear seat passenger who fails to wear a seat belt is at fault and negligent for the purpose of the passenger’s civil claims for compensation under Polish law. The experts also agree that the next question in Polish law is whether such negligence caused the injuries or made them worse. They also agree that Polish law in respect of damages for non-pecuniary loss (i.e. the equivalent of general damages for pain and suffering) provides no fixed scales or guidelines relevant to the case and that the judge should seek to assess a reasonable sum taking into account the injuries suffered by the claimant and all the circumstances of the case. Common practice of the Polish civil courts, it was said, is to calculate the non-pecuniary element on the basis of a 2002 table contained in the Ordinance of the Minister of Labour and Social Policy. The Supreme Court of Poland had criticised this practice in civil courts, as too slavish to a social insurance scheme.

In Wall, the CA held that the word ‘law’ in Article 15 of Rome II should be construed broadly and includes practice, conventions and guidelines; so that the assessment of damages should be on that basis. That, Soole J notes here, leaves the question of what the English Court should do if the evidence shows that the foreign courts continue to follow a particular practice despite criticism from the Supreme Court of that country. It is noticeable that the High Court does not wish to impose a precedent rule where there is none (Poland following civil law tradition). However it would be equally impertinent to ignore the criticism of that Supreme Court, that the 2002 table must not be slavishly followed. Soole J therefore ends up taking guidance from the 2002 table, without slavishly following it.

What remains to be seen (as also noted by Matthew Chapman, who alerted me to the case) is whether the High Court may now serve as inspiration for the Polish court. Precedent outsourcing, as it were.

Geert.

European private international law, second ed. 2016, Chapter 4, Heading 4.8

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Wall v Mutuelle De Poitiers Assurances: what is ‘procedure’ under Rome II?

Update 5 April 2019 see also application in [2019] EWHC 801 (QB) Joshua Folkes v Generali Assurances.

As readers will be aware, the Rome II Regulation on the law applicable to non-contractual obligations, harmonises Member States’ governing law rules on non-contractual obligations (not entirely accurately known in short as ‘tort’). Article 15 clarifies that the scope of the law applicable is very wide:

Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any division of liability;
(c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained personally;
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

The provision is important, because jurisdictions may differ quite substantially as to which parts of the dispute they consider to relate to the substantive matter of ‘tort’, as opposed to procedural law. Procedural matters are governed by the lex fori and continue to be so under the Rome II Regulation: Article 1(3) provides specifically

‘This Regulation shall not apply to evidence and procedure, without prejudice to Articles 21 and 22.’

Article 15 clearly has a limiting effect on Article 1(3), given that it qualifies a number of issues as being substantive law, even though national law may have considered these to be procedural.

Despite the clarification in the Regulation, combined with the EC proposal and with the recitals, difficulties do of course remain. However in particular ‘assessment of damage’ under Article 15(c) has a very wide scope indeed. For instance the scope of the applicable law arguably includes the determination of whether damages need to be determined ‘net’, taking into account subsequent history which impacts upon the dependency of the party that is being compensated, or rather ‘gross’, at the moment of death: see Cox v Ergo Versicherung, ([2011] EWHC 2806 (QB)] and [2012] EWCA Civ 1001].

In Wall v Mutuelle De Poitiers Assurances, following a severe road accident, plaintiff sued the insurance company in the UK  –  jurisdictional issues were not under discussion. The Court of Appeal had to review the extent to which French law, the lex causae, had to be applied by the English Courts: utterly and totally, with all its practical implications? Or with due regard for the distinction which the Regulation continues to make between procedure and substance? Tugendhat J unsurprisingly opted for the latter – much more eloquently than this posting can do justice: an English court must not strive to reach the same result as a French court would, let alone insist that evidence given to the English court be in the form of a French-style expert report (no more indeed than a French court would in the reverse hypothesis). As Tugendhat J summarises at 16, in fine: “Rules” as to the assessment of damages are therefore to be “imported”; if there is a rule as to what kind of loss is recoverable, that rule is to be imported. But mere methods of proving recoverable loss are not to be imported.

With reference to Dworkin no less on soft law, the Court did hold that applicable law should be understood to include “judicial conventions and practices”, for example “particular tariffs, guidelines or formulae” used by judges in the calculation of damages under the applicable law: in France, these are the so-called Dintilhac Headings.

Dworkin at the Court of Appeal: that was bound to catch my interest.

Geert.

 

 

 

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