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Expert evidence and Rome II

Jurisdiction: the law applicable under Council Regulation 864/2007 (“Rome II”) in the context of a decision about expert evidence was considered in Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138.

Jurisdiction: the law applicable under Council Regulation 864/2007 (“Rome II”) in the context of a decision about expert evidence was considered in Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138.

Since 11 January 2009, “Rome II” applies to claims arising out of road traffic accidents in the European Union. Issues of liability and the assessment of damages (including quantum) are decided in accordance with the ‘applicable law’ as determined by Article 4. Matters of evidence and procedure are dealt with in accordance with the law of the forum (Article 1.3).

In this case the accident happened in France. The claim was issued in the English courts. The tortfeasor was a French national. The applicable law was French law. Quantum fell to be determined by reference to French law. Only those heads of loss permissible under French law were recoverable.

The issue for the Court of Appeal was whether the decision about what expert evidence to allow should be determined in accordance with the law of the forum (Article 1.3) or by reference to the applicable law as part of the assessment of damages (Article 15).

The insurers argued that expert evidence should be limited to a French-style expert report and that in assessing damages the English courts should, so far as possible, award the same amount of damages that the French court would have awarded. The argument was rejected, the Regulation does not require the English court to put itself in the position of the foreign court and arrive at the same result.

The question of what expert evidence is required is a matter of procedure to be determined in accordance with the law of the forum. Foreign law and rules will determine what kind of loss is recoverable but the methods for proving the recoverable loss, the way in which evidence of fact and opinion is adduced, is a matter of procedure.

The assessment of damages for non pecuniary losses is governed by the applicable law.  Evidence is required from an expert in the foreign law. Evidence of practices, guidelines or tariffs (JC Guidelines) used by the foreign court to assess general damages can also assist the court.

As to pecuniary losses, the loss has to be a recoverable head of loss under the foreign law then quantum is determined by reference to the actual cost (or future cost) incurred, usually in the country where the Claimant is a habitual resident (after-care and medical attention) (Recital 33).

Emily Davies / 1st Jul 2014


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