In this blog, James Beeton of 12 King’s Bench Walk considers the decision in Committeri v Club Mediterranée SA [2018] EWCA Civ 1889, which was handed down yesterday. The case involved an appeal against the decision of Dingemans J ([2016] EWHC 1510 (QB) – considered in an earlier blog post here).

It provides guidance on (i) the characterisation of claims as contractual or non-contractual for the purposes of Rome I and Rome II and (ii) the circumstances in which it is acceptable to challenge the agreed evidence of foreign law experts.


The Claimant was in France on a team building exercise organised by his employer. The employer had entered into a package contract with the First Defendant (“Club Med”) under which they were to provide certain activities (including climbing activities) for their employees. That contract contained a ‘Law and Jurisdiction’ clause, providing that the booking conditions would be governed by English law.

In the course of the organised climbing activities, the Claimant fell and suffered injuries to his foot and ankle. He brought claims against Club Med and their liability insurer (the Second Defendant).

The central issue was whether or not the claim could be characterised as ‘contractual’ (and therefore governed by Regulation (EC) No. 593/2008 (Rome I)) or ‘non-contractual’ (and therefore governed by Regulation (EC) No. 864/2007 (Rome II)).

  • If the claim was contractual, it would be subject to the Law and Jurisdiction clause in the booking conditions and therefore subject to English law. Since the Claimant accepted that he could not prove fault on Club Med’s part, the claim would fail.
  • If the claim was non-contractual, it would be subject to French law on the basis of the general rule in article 4(1) of Rome II. The absence of fault would not matter since article L211-16 of France’s Code de Tourisme (enacted to implement the Package Travel Directive (Council Directive 90/314/EEC)) provided for strict liability for the proper performance of the obligations under the contract. The claim would therefore succeed.

Contractual or Non-Contractual?

After a detailed review of the authorities, Coulson LJ (with whom Simon and Moylan LJJ agreed) considered that the starting point was the ‘reality and substance’ of the case. The Claimant was on the ice wall in the first place because of the contract between his employer and Club Med. The basis of the claim was the existence of obligations owed by Club Med to the Claimant under the contract: ‘It is a claim for damages for breach of those obligations. The contract is therefore “indispensable” to the claim for breach.’

It was important that the strict liability provision of the French Code de Tourisme did not impose a free-standing obligation: it simply enhanced the Claimant’s pre-existing rights under the contract. The contract therefore remained central to the French law claim under the Code.

It also did not matter that the Claimant was not a party to the contract. In the context of claims to which the Package Travel Directive applied, it was clear that a contracting party could be liable to a third party as a ‘consumer’ for the proper performance of the contractual obligations.

But even if this had not been a case involving provisions implementing the Directive, the authorities established that Rome I could apply whether or not the Claimant was a party to the contract (see Verein Fur Konsumenteninformation v Amazon EU SARL [2017] QB 252 and flightright GmbH v Air Nostrum Lineas Aereas del Mediterraneo SA (C-274/16, C-447/16 and C-448/16).

Coulson LJ provided a helpful summary of the guidance from the CJEU in relation to the characterisation of obligations in the following terms:

  1. ‘The mere fact that a contracting party brings a civil liability claim against the other party does not by itself mean that the claim concerns “matters relating to a contract” but it will be sufficient if the conduct complained of may be considered a breach of contract (Brogsitter [24]) or if the purpose of the claim is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract (Brogsitter [26]).
  2. Only an obligation freely consented to by one person towards another and on which the claimant’s action is based is a ‘matter relating to contract’ (Ergo [44]).
  3. The classification of an obligation for the purposes of Rome I or Rome II depends on the (contractual or non-contractual) source of that obligation (Amazon, AG’s opinion [48]). A contractual obligation implies at the very least an actual and existing commitment (Amazon [50]).’

Finally, he concluded that there could be no doubt that the ‘underlying source of the rights and obligations being disputed’ was the contract. That was the express basis of the pleaded strict liability claim and the attempt to take advantage of the Code’s strict liability provisions did not detract from this. This conclusion was also supported by the characterisation of the claim as contractual in nature in both English law (X v Kuoni Travel Ltd [2018] EWCA Civ 938) and French law (on the basis of the expert reports).

The result was that the claim was contractual in nature and therefore one to which Rome I applied. The claim therefore failed.

Challenging the Experts

An interesting feature of the case was that the parties’ French law experts both agreed that the claim in French law under the Code would be characterised as contractual. On that basis, there was no meeting between the experts, no statement of the matters on which they agreed and disagreed, nor were they asked to give oral evidence at the trial.

Despite that, the Claimant sought to argue at trial that, notwithstanding the content of the two reports, the claim in French law should be characterised as non-contractual. The Claimant referred the judge to various French authorities and asked him to form his own view on French law.

On appeal, the Claimant challenged the judge’s determination that, as a matter of French law, the claim under the Code was contractual in nature.

Coulson LJ was clear in his assessment that this course was not open to the Claimant. The proposition was at odds with the opinion of the Claimant’s own expert and there had been no attempt to challenge the view of the Defendant’s expert through cross-examination. As a result, the Defendant and the judge were entitled to assume that there was no dispute on the issue. In any event, the judge had been entitled to conclude on the basis of the evidence that the claim would be characterised as contractual.

James Beeton , ,

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