The blog is by David Green of 12 King’s Bench Walk.
Cranston J refused permission to appeal against Dingemans J’s judgment in Marshall v the MIB, Pickard and others  EWHC 3421 (QB) on an important point of construction of Article 4 of the Rome II Regulations.
Christopher Pickard was the driver of a car and trailer on an AutoRoute near Paris in August 2012. Paul Marshall was his passenger. They were returning to the UK after several months working in France. They were standing by the side of the road while the trailer was being repaired by the driver of a French recovery truck (insured by Generali France Assurances, one of the Respondents to the appeal) when they were hit at high speed by Ms Bivard, an uninsured (and, apparently, sleeping) French driver. Mr Pickard suffered serious injuries; Mr Marshall was killed at the scene.
Claims were brought by Mrs Marshall (as Mr Marshall’s widow) and by Mr Pickard against the MIB, under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003: the MIB denied liability, stating that the French compensation body, the Fonds Garantie, would not be liable to compensate them. Mrs Marshall had to claim against Mr Pickard (to be compensated by his insurer, RSA) and Generali, and Mr Pickard had to claim against Generali.
The Original Trial
The original trial in 2015 had considered three preliminary issues, the first of which was the governing law of any claims that Mrs Marshall and Mr Pickard had against the various identified defendants. This question was determined with reference to Article 4 of Rome II, and was the sole subject of the appeal.
Article 4 of Rome II provides:
(1) 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.
(2) 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.
(3) 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.”
Dingemans J’s judgment on this issue was that:
- Article 4(1) was the general rule and thus the starting point: it would be wrong to begin the analysis in either of the exceptions.
- Under Article 4(1), “the country…in which the damage occurs” was France, and so under Article 4(1) the governing law was French law.
- However, Article 4(2) clearly applied to claims by Mrs Marshall against Mr Pickard and “switched” the governing law to English law in respect of those claims. Dingemans J rejected suggestions from some textbooks that Article 4(2) should be construed very narrowly, so as to apply solely to claims by a single Claimant against a single Defendant.
- This was not, though, the end point for these claims, as on a proper examination of the circumstances the tort was “manifestly more closely connected” with France than with England: Article 4(3) was engaged, so that the governing law was “switched back” to French law for Mrs Marshall’s claims against Mr Pickard. Dingemans J rejected submissions that Article 4(3) could not return to a governing law which might have been required under one of the preceding paragraphs, and found that the following three factual circumstances made the tort more closely connected to France than to England:
- Both Mr Marshall and Mr Pickard were hit by a French driver on a French motorway, and any claims against her, her insurer, or the Fonds Garantie were governed by French law;
- It was this collision between the French driver and the vehicle carrying Mr Marshall and Mr Pickard that was the cause of the accident, the injuries and the subsequent collisions;
- Any claims by either Mrs Marshall or Mr Pickard against Generali, the insurer of the recovery van, are also governed by French law.
Thus both claims were to be governed by French law.
The appellant contended that Dingemans J was wrong to conclude that French law applied: it was common ground that, if he succeeded, English law would apply, and that Mr Pickard would not be liable to Mrs Marshall.
The appellant criticized Dingemans J in particular for his attention, when considering Article 4(3), to the three factual circumstances set out above. The appellant submitted Article 4 – read as a whole – directed that attention should be given to the specific tort in question, i.e. the injuria committed by the alleged tortfeasor to the Claimant. This meant that at Article 4(3), “all the circumstances of the case” should be read restrictively to all the circumstances of that particular tort. This would make Dingemans J’s three factual considerations legally irrelevant. It was submitted that this reading promoted certainty and predictability.
In rejecting permission to appeal, Coulson J considered that “all the circumstances of the case” meant precisely that – the circumstances surrounding the tort. There were no extra words which would indicate that they should be restricted to the specific tortfeasor. Cranston J also observed that Recital (18) of Rome II described Article 4(3) as an escape clause from Articles 4(1) and 4(2), and that “I do not believe it helps [the appellant’s] arguments”.
This decision promotes a practical, fact-sensitive approach to the “all the circumstances” test, which is most obviously relevant in multi-party claims. For example, in cases where injuries are caused to a coachload of passengers, the fact that most of the rest of the passengers’ claims are governed by the law of country A will be a relevant factor in considering the governing law for the other passengers.