Lambert v Motor Insurers’ Bureau (Rev1) [2022] EWHC 583 (QB) was something of a travel law Who’s Who. Philip Mead acted for the Claimant, Lucy Wyles QC represented the Defendant, with Sarah Crowther QC judging (in what I believe was her first trial sitting as a Deputy High Court Judge), and President of PEOPIL Ana Romero giving expert Spanish law evidence.
The case was a cross-border personal injury claim in which the court was asked to determine as a preliminary issue liability between two motorcyclists who were involved in a serious accident during a motorcycle track event at a circuit then known as Circuito de Jerez, in Spain.
The Defendant was the MIB. This was because, at the time of the accident, the Motor Insurance (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 were in force as part of the law of England and Wales, pursuant to the UK’s then obligations as a member of the EU.
It was common ground that, in light of the decision of the UK Supreme Court in Moreno v MIB [2016] UKSC 52, a UK resident party injured in a motor accident was entitled to claim compensation from the Motor Insurers’ Bureau in certain circumstances.
Specifically, the Claimant had to show that the Spanish guarantee fund equivalent to the MIB would have been liable to him in respect of the accident. If he could do this, then he could claim such compensation from the MIB as would have been payable by the local guarantee fund.
While the law applicable to the Claimant’s claim was English law, it was necessary to have regard to Spanish law to determine the preliminary issues, Spanish law being the law which would have been applicable to any hypothetical claim which the Claimant might have brought against the Spanish guarantee fund.
In the end, the judge split liability 75/25 in the Claimant’s favour on the basis that he had come into conflict with another motorcyclist who was undertaking an unsafe overtake manoeuvre.
The decision was mainly based on resolving factual issues about how the accident happened. It was in that respect not so different to the kind of analysis that features in a purely domestic case.
I would like to draw attention to this part of the judgment at [10] and [11], where the judge gave some useful synthesised guidance on the court’s approach to the determination of issues of foreign law:
I adopt the principles set out by Simon J in Yukos Capital v Oil Company Rosneft [2014] 2 CLC 162; [2014] EWHC at paragraphs 25 – 30 regarding how an English court ought to approach the task of using the principles of a foreign law to determine a dispute before it, which, insofar as relevant and adapted to the present case can be summarised as:
a. The Court is required to determine foreign law as a question of fact on the basis of evidence deployed by the parties according to the usual civil standard (paragraph 25).
b. It is not the Court’s function to interpret codified provisions. Rather, the Court must determine how the Spanish courts would interpret the Spanish Civil Code (paragraph 26).
c. The burden of proving the Spanish law rests on the party seeking to establish that law and the task of the expert evidence is ‘to interpret its legal effect, in order to convey to the English court the meaning and effect which a court [of Spain] would attribute to it, if it were to apply correctly the law of [Spain] to the questions under investigation by the English court’ (paragraph 27).
d. The degree to which the English court can put its own construction on the foreign code arises out of and is measured by its right to criticise the oral (or written evidence) of the expert witness; and once the foreign law is before the court, the court is free to scrutinise the witness and what he [or she] says as it can on any other issue of fact (paragraph 27).
e. If there is a clear decision of the highest foreign court on the issues of foreign law other evidence will carry little weight against it (paragraph 27).
f. The court is entitled and may be bound to look at source material on which the experts express their opinion (paragraph 28).
g. Considerable weight is given to decisions of foreign courts as evidence of foreign law, but the Court is not bound to apply a foreign decision if it is satisfied, as a result of all the evidence, that the decision does not accurately represent the foreign law. Where foreign decisions conflict, the court may be asked to decide between them, even though in the foreign country the question still remains to be authoritatively decided (paragraph 29).
It follows from the above, that, once I have ascertained the Spanish law (as a question of fact) in accordance with the above guidance, it remains the function of the English court (and not the expert witnesses on foreign law) to apply such law to the facts of the case before it. This is the approach I have taken when considering the Spanish law evidence and reaching my conclusions upon it.