Category Archives: Rome II

Brownlie back in the High Court: Claimant allowed to serve on substitute defendant

Regular readers of this blog will recall our article on the Supreme Court’s judgment in Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80 (here).

In an order drawn up in July 2018, the Supreme Court directed that all consequential matters should be remitted to the High Court and that the Claimant had permission to issue certain applications. On 17 August 2018, the claimant duly issued three applications:

  • For the correction or substitution of FS Cairo (Nile Plaza) LLC (“LLC”, an Egyptian company) in place of the existing Defendant, Four Seasons Holdings Incorporated (“Holdings”, a Canadian company).
  • For permission to amend the Claim Form and Particulars of Claim.
  • For permission to serve the Claim Form and Amended Particulars of Claim out of the jurisdiction on LLC in Egypt.

All three applications were recently granted by Nicol J in Brownlie v Four Seasons Holdings Inc [2019] EWHC 2533 (QB). The lengthy decision contains some essential points for cross-border personal injuries practitioners. It deals with:

  • Limitation and the doctrine of “relation back” in claims under Rome I and Rome II.
  • The “presumption of equivalence” of foreign law with English law where no foreign law has been pleaded.
  • Application of the majority of the Supreme Court’s (obiter) approach to “damage” in the context of CPR 6BPD 3.1(9)(a) (the tort gateway).
  • Guidance on the approach to determining the forum conveniens post-Vedanta Resources plc v Lungowe [2019] UKSC 20

Nina Ross and James Beeton consider the decision in this blog. Continue reading Brownlie back in the High Court: Claimant allowed to serve on substitute defendant

The Draft Withdrawal Agreement – headlines for cross-border practitioners

It will not have escaped our readers’ notice that last week the UK and the EU released the draft text of a withdrawal agreement covering the UK’s exit from the EU. In a nutshell, the key provisions governing applicable law and jurisdiction are as follow.

Article 66 covers applicable law. It provides:

  • The Rome I Regulation (Regulation (EC) No. 593/2008) will apply in respect of contracts concluded before the end of the transition period.
  • The Rome II Regulation (Regulation (EC) No. 864/2007) will apply in respect of events giving rise to damage, where the events occur before the end of the transition period.

Article 67 covers jurisdiction. It provides (inter alia):

  • The Recast Judgments Regulation (Regulation (EU) No. 1215/2012) will apply in respect of legal proceedings “instituted” (presumably this means “issued”) before the end of the transition period.
  • The Recast Judgments Regulation will apply to the recognition and enforcement of judgments given in legal proceedings “instituted” before the end of the transition period and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period.
  • These provisions also apply to the special agreement between the EC and Denmark (by article 69(3)).

Asbestos Exposure and Choice of Law – Docherty Revisited

This blog post is by James Beeton of 12 King’s Bench Walk.

In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:

‘Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?’

In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).

That decision has now been overturned by the Inner House on appeal ([2018] CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops. Continue reading Asbestos Exposure and Choice of Law – Docherty Revisited

Committeri v Club Mediterranée SA and Anor [2018] EWCA Civ 1889 – Package Travel, Rome I and II

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. Continue reading Committeri v Club Mediterranée SA and Anor [2018] EWCA Civ 1889 – Package Travel, Rome I and II

Asbestos Exposure and Choice of Law – The View from Scotland

 

This blog post is by James Beeton of 12 King’s Bench Walk.

In Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25, the Outer House of Scotland’s Court of Session considered the following question:

Where a man, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death? Continue reading Asbestos Exposure and Choice of Law – The View from Scotland

Pickard v Marshall, the MIB and others [2017] EWCA Civ 17 – Rome II and manifestly closer connections

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 [2015] EWHC 3421 (QB) on an important point of construction of Article 4 of the Rome II Regulations. Continue reading Pickard v Marshall, the MIB and others [2017] EWCA Civ 17 – Rome II and manifestly closer connections