Wall v Mutuelle De Poitiers Assurances

In July 2010 Mr Steven Wall took a short holiday in France on his motorcycle. On 14^th July he was travelling north on the D347 from Oradour-sur-Glane towards Saumur. As he approached the junction with the D42 a motor car driven by a M. Clement (who was insured with the defendant) failed to give Mr Wall the priority to which he was entitled and hit Mr Wall’s motorcycle. Mr Wall sustained very serious injuries, including a severe spinal cord lesion, and now suffers from partial paraplegia. He can walk up to 400 yards on crutches but is otherwise in a wheelchair. The insurers have admitted M. Clement was negligent and that they are accordingly liable to Mr Wall and that they can be sued in England pursuant to the Council Regulation on Jurisdiction (No 44 of 2001) and the Fourth and Fifth Motor Insurance Directives (No 2000/26/EC and No 2005/14/EC). The only remaining issue is the quantum of the damages to which Mr Wall is entitled. On any view the claim is a substantial one.

This appeal relates to the way in which Mr Wall is to be entitled (or obliged) to prove his damages. In the old days, a claimant would have been confined to the heads of damage permitted by the law of the place where the tort of negligence was committed but the amount of such damages and the procedure by which those damages were to be calculated would have been for the law of the court where the action was brought. That was (broadly) what the Private International Law (Miscellaneous Provisions) Act 1995 provided, as interpreted by the House of Lords in Harding v Wealands [2007] 2 A.C. 1. Now the private international law for countries within the EU is set out in Council Regulation 864/2007 on the law applicable to non-contractual obligations. This is known colloquially as Rome II, Rome I dealing with the law applicable to contractual obligations. I shall refer to it as “the Regulation”. It has been in force since 11^th January 2009.

The dispute between the parties relates to the way in which expert evidence is to be adduced. The claimant, in the usual English way, has asked for permission, pursuant to CPR 35, to call expert evidence in a number of relevant disciplines. The defendant insurers say that that is not appropriate since the applicable law is the law of the country in which the damage occurred and is thus French law. Under French law the court selects one (or sometimes) two medico-legal expert(s) to assist the judge, although such expert(s) may have recourse to experts in other disciplines if he/they feel it necessary and may incorporate their opinions in the report made for the court. These sub-experts are known to French lawyers as “sapiteurs”. There is usually very limited opportunity to cross-examine the expert chosen by the court or his sapiteurs.

On 30^th October 2012 Master Cook ordered a preliminary issue to be tried in the following terms before he made any order in respect of expert evidence:-

By reference to the law of the forum (English law) on the basis that this is an issue of “evidence and procedure” within Article 1.3 of Rome II; or

By reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II.”

Tugendhat J answered the question as follows:-

The insurers’ renewed oral application for permission to appeal came, as it happens, before me. Mr Browne QC for the insurers relied on the view of Professor Adrian Briggs that Rome II had brought about the termination of English private international law and its replacement by a European private international law now applicable in the United Kingdom (see (2009) 125 LQR 191). This seemed on the face of it a possible indication that Sir Richard’s projected revolution might have taken place and I therefore gave permission to appeal.

The relevant provisions of Rome II are:-

This regulation shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

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

Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;

the grounds for exemption from liability, any limitation of liability and any division of liability;

the existence, the nature and the assessment of damages or the remedy claimed;

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;

The preliminary issue was ordered because at a case management conference before Master Cook, the claimant had indicated an intention to call, if permitted, eight (now perhaps ten) expert witnesses:-

a consultant surgeon in spinal injuries;

a consultant clinical psychologist;

a care expert;

an expert on the costs of rehabilitation;

an accommodation expert;

an assistive technology expert;

a neuro physio therapy expert;

a transport expert.

The defendants wish to avoid all this and indicated to Master Cook that they would ask him to order a French-style expert report compiled by a single agreed (or court appointed) expert or pair of experts who will then incorporate into the report any necessary expertise from other experts/sapiteurs. The defendants accept that each of the areas which the English experts would cover relates to a permissible head of damages as a matter of French law, so that (to that extent) no problem arises under Article 15(c) of the Regulation. But they contend that, on the true construction of the Regulation, the English court must arrive (as nearly as possible) at the amount of damages which the French court would have awarded, if the action had been tried in France and that the only way (or the best way) to secure that outcome is to have a French-style expert report. The defendants have helpfully provided the court with an example of what such a report might look like as applied to this case, compiled by two French experts.

The claimant’s response is that any question of how expert evidence is to be presented to the court is a question of “evidence and procedure” within Article 1.3 of the Regulation and that the Master should order expert reports as he would in an English action.

Nothing in the Regulation mandates a court, trying a case to which a foreign law applies pursuant to the Regulation, to award the same amount of damages as the foreign court would award. Mr Browne relied on certain of the Recitals (particularly Recitals 6 and 14) to submit that the aim of Rome II was to promote certainty and uniformity and discourage forum-shopping and that it therefore followed that an English court applying foreign law should ensure (or at any rate do its best to ensure) uniformity of outcome, irrespective of which country tries the quantum claim. As against that, Mr Weir QC for Mr Wall pointed out that the exclusion of “evidence and procedure” from the scope of the Regulation meant that it was inevitable that there might not be uniformity of outcome; to seek such uniformity was to seek the unattainable. He said that the Regulation did no more than set out rules of private international law to be applied and did not touch matters of evidence and procedure at all. He also derived support from Recital 33 which is in the following terms:-

I have no doubt that Mr Weir’s arguments should prevail. It cannot be the case that the Regulation envisages that the law of the place where the damage occurs should govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case. An English court is ill-equipped to receive expert evidence given in the French manner. First, our rules of disclosure will not be the same as they are in every foreign country. It would be very odd if the rules of disclosure were not matters of “evidence and procedure”; but on the assumption that they are, how do they apply to a French-style single expert report? Not only would a French expert not regard himself as bound by any English rule; neither would he be able, in any sensible way, to take advantage of the English rules if he wished to do so.

Second, our rules of evidence contemplate the giving of oral evidence by a procedure of examination-in-chief, cross-examination and re-examination of witnesses. Even if the author of a French-style expert report were prepared (as he would have to be) to submit to such a procedure, it would be meaningless, to the extent that his or her report incorporated material outside his or her personal expertise.

Third, I have little doubt that in the reverse situation, a French court would think it unhelpful (to put it mildly) to be presented with English-style expert evidence about the consequences of an English accident to a French driver or motorcyclist, in the form of reports from experts in (say) 10 disciplines presented by each party and having to choose between them without resort to its own method of dealing with expert evidence.

In these circumstances it is indeed inevitable that the same facts tried in different countries may result in different outcomes and I am unable to accept Mr Browne’s starting point that the English court must strive to reach the same result as a French court would, let alone his finishing point that evidence must be given to the English court in the form of a French-style expert report.

It is therefore gratifying that Professor Andrew Dickinson in his valuable monograph “The Rome II Regulation” (2008) appears to agree. In chapter 3 on Foundations and Scope he says at 3.39:-

This is not, to my mind, contradicted by para 14.19 in Chapter 14 called “The Scope of the Law Applicable under the Regulation” under the sub-heading “The Assessment of Damages Generally”:-

In this extract the author distinguishes between the “basis” of assessment and the “mode” of assessment. The fact that he explains the basis of assessment as including

This is a matter of some importance because experts in personal injury cases will, not unusually, give evidence of matters of fact as well as of opinion. It will, for example, be necessary for the court to receive evidence of what care or what accommodation the claimant needs. This will be partly a matter of fact relating to the claimant’s current condition and current accommodation and partly a matter of opinion relating to the current and future needs of the claimant with his current condition and his current accommodation. It is convenient for such evidence to be given in a single care report or a single accommodation report, as the case may be. If the method of proving the relevant facts is for the court of the forum, it must follow that the method of proving any relevant opinion must be for the court of the forum also.

It follows from all this that the judge answered the question posed by the preliminary issue in the right way and that the issue of which expert evidence the court should order should be determined by reference to English law. That is not, of course, to say that I would expect the Master necessarily to permit the claimant (or indeed the defendants) to serve 10 separate expert reports and call 10 separate expert witnesses. I would hope that there would be scope for some amalgamation and limitation on the number of experts. But that will be a matter for the Master to determine in due course. In essence, however, the appeal falls to be dismissed.

It would, however, be unsatisfactory to leave the matter there although Mr Weir urged us, in a submission which is usually attractive to any court, to decide no more than is strictly necessary for the disposal of the appeal. It seems to me that it is desirable (and perhaps helpful to the Master) to express a view on the question whether Professor Dickinson is correct to say that the 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. He instances the equivalent in the foreign law of the English Judicial Studies Board “Guidelines for the Assessment of General Damages in Personal Injury Cases.” These are now called the Judicial College Guidelines and are currently in their 12^th edition (2013). This approach is echoed in Dicey, Morris & Collins, The Conflict of Laws (15^th ed, 2012) para 7-050 where this is said:-

It is, of course, not impossible that the similarity of this passage to the passage I have already quoted in para 17 above may owe something to the fact that Professor Dickinson is now part of Dicey’s editorial team. If these opinions are correct, the Master might wish to consider permitting the parties to adduce evidence of any French judicial practice or guidelines which are equivalent to our Judicial College Guidelines and it is for this reason that it would be unsatisfactory merely to dismiss the appeal without at least clarifying whether such an option would be open to him.

Mr Weir submitted that the views expressed by Dicey and Mr Dickinson are not correct because the court is only obliged to apply “the law” of the country in which the damage occurs, according to Article 4 of the Regulation. Moreover, the assessment of damages, according to Article 15 (c) of the Regulation, is governed by “the law applicable to non-contractual obligations”. Judicial conventions or guidelines are not “law” at all. He has the support of Cheshire North & Fawcett on Private International Law (14^th ed.) which states that it would be sensible to interpret Article 15 (c) as being implicitly limited to the assessment of damages “in so far as prescribed by law”. The reason given by the authors for this view is that the words “in so far as prescribed by law” were included in the Commission’s proposal for the Regulation, as they were included in the equivalent article of the original Rome Convention. The authors say that there was never any suggestion that this was a deliberate omission. This reasoning is a little double-edged; the fact that no reason has been given for the omission does not mean that one did not exist. In these circumstances, the court must just do its best to construe the words used.

I prefer the view of Mr Dickinson and Dicey to that of the authors of Cheshire. It seems to me that in the context of a Regulation (or Convention) intended to have international effect, a narrow view of “law” is inappropriate If there are guidelines, even if they can be disapplied in an appropriate case, judges will tend to follow them. No doubt one can call this “soft law” rather than “hard law” but it is law nevertheless. Any foreign judge having to apply English law on the assessment of damages would find the Judicial College Guidelines helpful as a starting point. If, therefore, French law had the equivalent of these guidelines, I would hold that the Master could permit evidence of them to be given by an English court.

The parties have already been permitted to serve reports of experts in French law. Me. Jerome Charpentier is a specialist in the French law on physical injuries and has informed the court in a report of 26^th October 2012 submitted by the claimant that the general principle of French law is one of full compensation, namely that

He continues

At a later stage (page 11) of his report, however, Me. Charpentier isolates, by way of example, a particular loss (permanent aesthetic loss) and in respect of that loss gives figures normally adopted by the Paris Court of Appeal in 2011/2012 on a scale of 1 to 7 with a final category of “wholly exceptional” being €80,000 and over. This is just one example applicable to one head of loss out of Mr Dintilhac’s 13 separate heads of non-pecuniary loss.

To the extent that these are figures normally adopted by the Paris Court of Appeal for the various heads of non-pecuniary losses in M. Dintilhac’s list, I can see that the combination of those heads and such figures could well amount to the equivalent of the Judicial College Guidelines. I therefore consider that it would be appropriate for the Master to permit either Me. Charpentier or Me. Jung (or, if necessary, both) to place evidence of such heads and figures before the English court. It seems to be agreed that French judges have a discretion to depart from these guidelines in an appropriate case and no doubt the English judge trying quantum will feel he has the same discretion. But he should, at least, be informed of what a French judge would regard as an appropriate starting-point.

In the light of Recital (33) to the Regulation, I do not consider that the same evidence is necessary or called for in respect of the pecuniary losses suffered by Mr Wall.

Save to the extent I have indicated, I would dismiss this appeal.

I agree that this appeal should be dismissed for the reasons stated by Longmore LJ. I wish to add my own comments on two issues, namely the meaning of “law applicable” and the meaning of “evidence and procedure” in Regulation EC No. 864/2007 (“Rome II”).

The relevant provision. Article 15 of Rome II provides:

The rival contentions. The rival contentions are as follows:

The claimant contends that in the phrase “law applicable” the word “law” should be construed narrowly. It means legal rules which dictate a result. Thus, in the context of article 15 (c) of Rome II, the claimant contends that “law” has the following meaning: “fixed legal rules which dictate expressly the amount to be recovered”.

The defendant contends that in the phrase “law applicable” the word “law” should be construed broadly. It includes practices, conventions and guidelines. Thus, in the context of article 15 (c) of Rome II, the defendant contends that “law” includes “practices, conventions and guidelines regularly used by judges in assessing damages under their law.”

My view. In my view the defendant’s contention is correct. 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.

Application to the present case. As Longmore LJ has explained, it appears from the expert evidence that French judges normally award personal injury damages by reference to the categories drawn up by M. Dintihac. In relation to permanent aesthetic loss French judges normally have regard to the tariffs published by the Paris Court of Appeal. We are not told what tariffs exist for other categories of non-pecuniary damage, but it seems probable that such tariffs exist. These are not black letter rules. Judges have discretion to depart from them to such extent as they deem appropriate in particular cases. In my view, the Dintilhac guidance and any prevailing tariffs constitute part of the “law” which under article 15 of Rome II “shall govern … the assessment of damage or remedy claimed”. The trial judge in the present case, with the assistance of expert evidence, should apply the Dintilhac guidance and any prevailing tariffs for non-pecuniary damage, subject to the same margin of discretion as a French judge would have.

Consequence of the claimant’s contention. The claimant’s contention would produce bizarre results. In Spain there is a statutory scheme for the assessment of damages following a road traffic accident. This is set out in the Motor Vehicles Act 2004. Under this scheme the amount of compensation depends upon the number of points which the claimant achieves. A medical expert assesses the severity of the injuries. On the basis of that assessment the amount of compensation is determined by statute. The charts which convert points to compensation are updated from time to time by reference to inflation. The most recent update was in 2013. Accordingly, on the claimant’s analysis, if C is injured in Spain and sues in England, he recovers damages on the Spanish scale. If C is injured in France and sues in England, he recovers damages on the English scale. This is because the Dintilhac guidance and any prevailing tariffs for non-pecuniary damage (such as those issued by the Paris Court of Appeal), though followed in practice by judges, are not formal rules of law. I do not believe that Rome II was intended to lead to such bizarre results.

Objectives of Rome II. The objectives of Rome II are set out in the preamble. The recitals of particular relevance are 6, 14, 16 and 33. Recital 33 specifically refers to the assessment of damages for the victims of road traffic accidents. In my view, the clear intention of Rome II is that both the rules and principles governing the assessment of damages for such victims should be those of the state where the accident occurred, regardless of where the victim sues. This will promote certainty, clarity and fairness, all of which are objectives of Rome II.

Conclusion. In the present case, therefore, the claimant is entitled to recover all heads of recoverable loss which are recognised in France. The judge assessing non-pecuniary losses should have regard to the Dintilhac guidance and any prevailing tariffs for damages (such as those issued by the Paris Court of Appeal) to the same extent that a French judge would do so.

The relevant provision. Article 1.3 of Rome II provides:

The rival contentions. The rival contentions are as follows:

The claimant contends that the phrase “evidence and procedure” in article 1 (3) of Rome II should be given its normal meaning. Accordingly the court in the present case should follow normal English procedure in determining the extent of the claimant’s injuries and the amount of his financial losses (in so far as those categories of loss are recoverable under French law). This will entail receiving expert evidence from numerous different disciplines.

The defendant contends that the phrase “evidence and procedure” in article 1 (3) of Rome II should be construed narrowly. Accordingly the court in the present case should not follow normal English procedure in determining the extent of the claimant’s injuries and the amount of his financial losses (in so far as those categories of loss are recoverable under French law). Instead the court should only receive limited expert evidence. The principal expert evidence should be a French style medico-legal opinion.

My view. In my view the claimant’s contention is correct. I reach this conclusion for two reasons.

First, the claimant’s interpretation accords with the natural meaning of article 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.

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.

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 über die Vergütung der Rechtsanwältinnen und Rechtsanwälte vom 5 Mai 2004, zuletzt geändert am 10 Oktober 2013). A scale of fees is 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.

Conclusion. In the present case the court should follow English evidential practices. Accordingly the court should follow its usual practice in relation to receiving expert evidence concerning the extent of the claimant’s injuries, the amount of the claimant’s financial losses (in so far as such losses are recoverable under French law) and similar matters.

In the result, therefore, the court will establish the facts using English evidential practices. It will then assess damages in accordance with French law (“law” being broadly construed, as set out above).

I agree that the appeal should be dismissed for the reasons given by Lord Justice Longmore and Lord Justice Jackson.

Any question as to (i) the extent to which, and the form and manner in which, expert evidence may be given; (ii) how many experts may give evidence; and (iii) whether such evidence shall be the subject of cross examination, is, almost self evidently, an issue of evidence and procedure, to which, by virtue of Article 1.3, the Regulation does not apply. What is less clear is what evidence the English Court should permit in a case where damages are to be assessed under French, or any other foreign, law.

I agree with my Lords that the evidence should not be confined to rules which dictate a result or to black letter rules; but should extend to judicial conventions and practices such as tariffs, guidelines or formulae used in practice by foreign judges in the calculation of damages, as suggested by Mr Dickinson.

In England & Wales damages in a personal injury case would be assessed by reference to (a) common law rules and principles as to what measure of damages is applicable and the permissible heads of recoverable loss; (b) statutory provisions; (c) overarching decisions of the courts e.g. Simmons v Castle [2012] EWCA Civ 1039 (providing for a 10% increase in general damages from 1 April 2013); (d) guidance from decided cases on the appropriate level of damages for different injuries; and (e) published guidelines such as those of the Judicial College or tables such as the Ogden tables.

French law as to the assessment of damages should not be treated as any more restricted than as set out in the previous paragraph in respect of English law. “Law” should be interpreted so as to cover whatever rules, principles, practices and guidance a French Court would adopt in making its assessment. For that purpose it is necessary for the English court to understand what is the reach of their application.

The problem is illustrated by the Dintilhac Headings (“the Headings”). They are, according to the evidence of Mr Charpentier, without binding force but used in practice by lawyers, magistrates and insurers. Current case law makes use of the list. The evidence of Mr Jung for the defendants is that they are generally followed by all Courts and Courts of Appeal.

A possible approach is to say that because the Headings have no binding force an English judge applying French law is entitled to ignore them and award damages by adopting an entirely English approach to the assessment of the various heads of damage claimed which, as is common ground, are all heads recoverable in principle under French law. This is, in my view, too narrow an approach. In assessing damages in accordance with French law the English judge should endeavour to decide how, in practice, a French judge would assess damages. If that is, as it appears to be, by reference to the Headings, the English court should adopt the same approach, although, to the extent that French judges have a discretion to adopt a different approach, an English judge will be similarly entitled. For that purpose it would be helpful to know the circumstances in which they would or might consider it appropriate to do so in order to see whether they are applicable to the present case.

The Paris Court of Appeal is said normally to adopt guidelines on quantum for loss under at least one of the Headings and it may well be that it does so for all the others. Evidence of the figures normally adopted by the Paris Court of Appeal in relation to the Headings is something of which evidence ought to be admitted. Such normally adopted figures (i) do not appear to me to be different in kind to the guidelines published by the Judicial College which, themselves, “distil the conventional wisdom contained in the reported cases [and] supplement it from the collective experience of the working party” – see the foreword to the 1^st Edition by Lord Donaldson of Lymington; and (ii) are an indication of what, applying French law, the Court of Appeal regards as appropriate figures. The judge assessing non-pecuniary loss should have regard to any prevailing tariffs to the same extent as a French judge would do so. That renders it desirable to know in what circumstances the Paris Court of Appeal would or might not adopt such figures; and the circumstances in which that court, or judges at first instance, depart therefrom.

The decision as to what evidence should be permitted is, of course, in the first instance for the Master to make by reference to the actual reports for which permission is sought.