Pickard v Marshall & Ors

This is a renewed application by Mr Christopher Pickard for permission to appeal a decision of Dingemans J after refusal on the papers by Tomlinson LJ. This is also a contingent applicant for permission to appeal by Generali France Assurances should Mr Pickard be granted permission to appeal.

The facts are described in detail in Dingemans J’s judgement: [2015] EWHC 3421. In summary there had been a road traffic accident in France involving on the one hand a French driver, Ms Bivard in a Peugeot, who was uninsured and apparently asleep at the wheel, and on the other hand two British nationals, Mr Marshall and Mr Pickard, who were returning to the UK after working in France for several months. Mr Pickard had been driving a Ford Fiesta motor car and trailer. The Fiesta was registered in the UK and insured by Royal & Sun Alliance (“the RSA”). Mr Marshall was Mr Pickard’s passenger. They were standing at the side of a motorway in Paris behind the Ford and trailer, while the trailer was being repaired by the driver of a recovery truck. The recovery truck was registered in France and insured by Generali France Assurances (“Generali”).

The Peugeot was travelling at some 90 mph, hit Mr Marshall and Mr Pickard, collided with the trailer, shunting it into the Fiesta which in turn was shunted into the recovery truck. Mr Pickard was thrown forward and landed away from the vehicles, suffering serious injuries. Mr Marshall’s head hit the Peugeot’s windscreen and he was thrown forward. The trailer fell on his leg. He died at the scene.

Mr Marshall’s widow brought an action against the Motor Insurers’ Bureau (“the MIB”) because Ms Bivard was uninsured. It denied liability on the basis that its equivalent in France, the Fonds de Garantie, was not liable to compensate Mrs Marshall and therefore it had no liability. Instead, it contended, under the liability principles applying under French law for road traffic accidents Mr Pickard and RSA, as driver and insurer of the Fiesta, and Generali, as insurer of the recovery truck, were liable. A second action was brought by Mr Pickard against the MIB. Again, the MIB denied liability and claimed that Generali was liable.

Dingemans J’s task was to determine a number of preliminary issues. The first issue, which is the subject matter of this application, is whether French or English law applies to the issue of liability as between Mrs Marshall, as claimant, and Mr Pickard, as defendant. RSA claimed that English law applies. Dingemans J held that it is French law which governs.

It was accepted that this issue was to be determined in accordance with Regulation (EC) No 864/2007 of 11 July 2007on the law applicable to non-contractual obligations, known as Rome II. Article 4 of that Regulation provides as follows:

After considering the Recitals to the Regulation, setting out Article 4, and reviewing case law (not on all fours with the present case), Dingemans J said that he appreciated that it was important not to turn first to the exception in Article 4(2) to the general rule in Article 4(1), and that it was also important not to use Article 4(3) as a starting point: [16]. He then rejected a submission of some text book writers that Article 4(2) only applied where one person brought proceedings against another person, and both were habitually resident in the same EEA state. That would exclude the situation of a number of persons injured in coach crashes: [17]. In his judgment Article 4(2) applied, on the natural wording of the article, to the claims made by Mrs Marshall against Mr Pickard: [18]. So French law applicable under Article 4(1) was replaced by English law, since Mr & Mrs Marshall and Mr Pickard were habitually resident in the UK.

Turning to Article 4(3) Dingemans J rejected the view of some text book writers, not argued for by the parties in the case, that when French law is the governing law pursuant to Article 4(1), but excluded (for part of the claims) under Article 4(2), it could not be brought in again under Article 4(3): [19]. He then said:

Dingemans J noted that Mr Marshall and Mr Pickard had been working together in France for some two and a half months, but said that in his judgment that factor would not have come close to avoiding the effect of Article 4(2) to result in the application of Article 4(3): [21]. He also rejected a submission that that it was wrong to take so much account of the fact that Ms Bivard was a French national, because in some cases the driver in an accident may not be traced. However, he was bound to take into account “all the circumstances of the case”, and that included the known facts like that. Consequently, the law of France applied to the liability parts of the claims arising from the accident advanced before him.

On the renewed application, Mr Weir QC for Mr Pickard and RSA contended that Dingemans J was wrong to hold that French law applies. (It was common ground that if Mr Weir was correct, and English law applies, Mr Pickard is not liable to Mrs Marshall.) Mr Weir criticised the judge for taking into account the three circumstances he mentioned in paragraph [20] of his judgment, since none of these were circumstances of the case against Mr Pickard, the alleged tortfeasor.

In advancing his case, Mr Weir submitted that Article 4(1) refers to the law applicable to a non-contractual obligation “arising out of a tort/delict”. Therefore in his submission its focus is on the particular tort between the responsible tortfeasor and the direct victim. However many parties may be involved in litigation, he contended, the issue is the law applying to that tort. In his submission the CJEU in Case C-350/14, Lazar v. Allianz, CaseC-350/14, 10 December 2015, supported the focus on the particular tort, in part to further the policy aim of the Regulation to make the applicable law in tortuous claims more foreseeable.

In Mr Weir’s submission, Article 4(2) is better seen as a specific rule, mutually exclusive to the operation of Article 4(1). To achieve consistency between Articles 4(1) and 4(2), however, the phrase “the person sustaining damage” must be read to refer to the direct victim, in this case Mr Marshall, and the phrase “the person claimed to be liable” to the tortfeasor, in this case Mr Pickard, not his insurer. Article 4(2) refers to “both”, in other words, to these two persons only and whether they share the same habitual residence.

As to Article 4(3), Mr Weir submitted that as an exception to Articles 4(1) and 4(2) it must be read restrictively so as to reduce uncertainty and to enhance predictability. In his submission, to ensure consistency with Article 4(1) the word “tort” must be construed narrowly to apply only to the claims of direct and indirect victims of the specific tortfeasor. The reference to “all the circumstances of the case” is to the circumstances of the case brought by the victims against a given tortfeasor. This interpretation furthered certainty, he submitted, since otherwise it would be difficult to limit the circumstances to which reference could be made. The judge was accordingly wrong and the three circumstances to which he referred were legally irrelevant.

The starting point in considering these submissions must be the words of the Regulation, in particular Article 4(3). It demands that attention be given to “all the circumstances of the case” to determine if “the tort/delict” is “manifestly more closely connected with” a country other than that which is pinpointed by the application of Articles 4(1) or 4(2). To my mind the phrase “all the circumstances of the case” points to precisely that, all the circumstances surrounding the tort. Those circumstances are not limited by Article 4(3), by a phrase such as “brought against the tortfeasor”.

Certainly all parts of Article 4 must be read together, but Article 4(3) is focused on the law of the country with which the tort/delict is manifestly more closely connected. Consequently, it is not on all fours with Articles 4(1) and 4(2), which are concerned with the law applicable to “a non-contractual obligation arising out of a tort”. “Tort” can refer to the road traffic accident in this context, just as readily as it can to the cause of action (to use the English approach) applying between the particular victim and particular tortfeasor. That a tort is part of a multi-party accident may be highly relevant to the country with which it is manifestly most closely connected.

As to the example in the last sentence of Article 4(3), of a pre-existing relationship between the parties, it is to my mind but an example of the circumstances which may bear on identifying the country with the most manifest connection. Finally, Article 4(3) is an escape clause but in my view that does not mean that its ambit should be unduly narrowed. After all, Article 4(3) is part of a general rule, Article 4, designed for choice of law in tort cases where the specific provisions in Articles 5-12 do not apply.

Finally, I note that in Case C-350/14, Lazar v. Allianz, 10 December 2015, the CJEU accepted that the damage suffered by close relatives of the deceased must be regarded as the indirect consequence of an accident within Article 4(1), as Mr Weir conceded, which takes the analysis beyond the immediate victims and the particular tortfeasor.

As to policy, certainty is an important value behind the Regulation, and as Mr Weir highlighted is enunciated in recital (14). But recital (14) also identifies as goals doing justice in individual cases and creating a flexible framework of conflict of laws rules. Recital (18) says simply that Article 4(3) should be understood as an escape clause from Articles 4(1) and 4(2) where it is clear from all the circumstances of the case that the tort is manifestly more closely connected with another country. I do not believe it helps Mr Weir’s arguments.

The Commission’s proposal for the Regulation, COM(2003) 427 final, explained that Article 4(1) (at that point Article 3(1)) met the concern for certainty; that the article as a whole was a compromise between the two extremes of applying the law of the place where “the event giving rise to the damage occurs”, and giving the victim the option of choosing the applicable law; and that Article 4(3) was a general exception clause which aimed to bring a degree of flexibility, enabling the court to adapt the rigid rule to an individual case so as to apply the law that reflected the centre of gravity of the situation.

In neither the recitals nor the policy background which led to the Regulation can I detect any reason for reaching a different conclusion than the one which I have found in the words of Article 4 itself.

Consequently, in my judgment the judge was quite clearly correct that French law applies. The judge’s approach, contrary to Mr Weir’s submission, did not misunderstand the meaning and scope of Article 4, in particular the import of Article 4(3). The judge was accordingly right to consider the three circumstances he did in paragraph [20] of his judgment. In that regard the balance he struck was an evaluative exercise and the outcome he reached unassailable.

I refuse Mr Pickard permission to appeal. Because Mr Pickard is refused permission, it is unnecessary to consider Generali’s contingent application for permission to appeal.