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The Effect of Jurisdiction on Expert Evidence and Damages in Insurance Claims

Monday, 15 September 2014

Insurers should take note of the rules relating to expert evidence and damages where an accident happens abroad.

Private international law deals with a number of important considerations in international civil cases, ranging from the determination of the applicable law to the selection of the jurisdiction where the case should be heard.

The recent case of Wall v Mutuelle Insurance de Poitiers Assurances [2014] has helped to clarify some of the issues arising out of the Rome II directive and establish a number of important principles in relation to insurance claims which have a cross border element.

In particular, the Court laid down specific guidelines on evidentiary rules and the assessment of damages.

Wall v Mutuelle Insurance [2014]

The plaintiff, an English national, was severely injured when his motorcycle collided with a car in western France. A claim was taken before the English courts against the insurers of the man who caused the accident.The defendant accepted negligence and admitted liability, but a dispute arose in relation to quantum of damages.

EU Regulation

The issue of private international law in a European context is dealt with in Council Regulation 864/2007 (colloquially known as Rome II). The general rule states that in tort actions which involve a conflict of laws, the applicable law is that of the country in which the damage actually occurs, in this case France.

The scope of the term ‘applicable law’ includes both assessment of liability and quantification of damages, but excludes evidentiary and procedural rules which continue to be governed by the law of the forum.

Despite this the defendants wished to import French rules on expert evidence into the case so as to reduce the number of experts the plaintiff wished to call before the court. This claim was rejected by the High Court, who confirmed that expert evidence was one of the evidentiary rules which were expressly excluded from the scope of Rome II.

Therefore, while the English courts were required to follow French law in relation to the resolution of the dispute, they were not obliged to import French evidentiary rules into their court procedure.

The Court of Appeal confirmed this decision and also made an interesting observation on the extent in which courts were required to take into account the foreign applicable law. It held that this obligation did not only cover the foreign country’s hard law but also soft law provisions such as judicial customs and practices.

Therefore, the English court was required to take into account French judicial guidelines when determining the extent of damages.

What does it mean?

As evidentiary rules are expressly excluded from the Rome II regulation, it is unlikely that the ruling on expert evidence will have much of an impact on the law in this area but it is useful primarily as a means of clarifying the existing law.

However the decision in relation to judicial interpretation places a significant obligation on judges to have regard to foreign principles and increases the extent in which unfamiliar legal practices will be considered before an English court.

For specialist insurance litigation advice contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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