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    England and Wales High Court (Queen's Bench Division) Decisions

    You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Moreno v The Motor Insurers' Bureau [2015] EWHC 1002 (QB) (17 April 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/1002.html Cite as: [2015] WLR(D) 177, [2015] EWHC 1002 (QB)

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    Neutral Citation Number: [2015] EWHC 1002 (QB) Case No: HQ14X03591

    IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

    Royal Courts of Justice Strand, London, WC2A 2LL

    17 April 2015

    B e f o r e :

    MR JUSTICE GILBART ____________________

    Between: TIFFANY MORENO

    Claimant - and -

    THE MOTOR INSURERS' BUREAU Defendant

    ____________________

    Daniel Beard QC and Sarah Crowther (instructed by BL Claims, Eastleigh) for the Claimant

    Hugh Mercer QC and Marie Louise Kinsler (instructed by Weightmans, Liverpool) for the Defendant

    Hearing dates: 19-20 March 2015 ____________________

    HTML VERSION OF JUDGMENT ____________________

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    MR JUSTICE GILBART :

    Introduction

    This is a trial of a preliminary issue:1.

    "Whether the scope of (the Defendant's) liability to the Claimant is to be determined in accordance with the law of England or the law of Greece."

    The order for a trial of that issue was made by consent by Master Yoxall on 10th November 2014.

    On 17th May 2011 the Claimant, who was then aged 25, and who lives in England and Wales, was on holiday on the island of Zakynthos in Greece. She was on the verge of a road on that island when a car left the road and struck her. She suffered grievous injury to her legs. She has since received extensive surgical and other medical and therapeutic treatment. Her right leg has been amputated through the tibia, and her left leg required extensive surgery to repair the knee ligaments. She has had repeated surgery to her legs. She must wear a prosthesis, and also has to use a wheelchair. She continues to suffer from pain and disability. She has also endured a psychological reaction, and an exacerbation of pre-existing depression. She has suffered losses of earnings, and it is claimed that she will be at a disadvantage on the open labour market.

    2.

    The car in question was registered in Greece. The Claimant's solicitors wrote to the Defendant Motor Insurers' Bureau ("MIB") to obtain insurer details for the vehicle. Upon enquiry, its Greek equivalent considered that the vehicle was uninsured, and that the driver (who was of Albanian extraction and perhaps nationality) was responsible for the accident.

    3.

    The Claimant has made a claim against the MIB under Regulation 13(2) of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body Regulations) 2003 (SI 2003/37) ("The 2003 Regulations").

    4.

    In the Defence, it is admitted that the driver was liable under the law of Greece for the accident. It is admitted that, under the law of Greece, the Greek Guarantee Fund for the purposes of the relevant EU Motor Insurance Directives (of which more below) would be liable to compensate the Claimant. Liability is therefore admitted under Regulation 13, but it is contended that the measure of compensation payable should be assessed in accordance with the law of Greece. This is a case where the level of damages available to a claimant for personal injuries would be higher if assessed according to the laws applying in England and Wales than in Greece. (Although as will become apparent it cannot be assumed that the level of provision is more generous in England and Wales than in all other EU jurisdictions.)

    5.

    Judgment has been entered for the Claimant by consent on 9th July 2014, and an interim payment made under CPR 25. That was without prejudice to the Defendant's arguments on the applicable law.

    6.

    The Court of Appeal in Jacobs v MIB [2010] EWCA Civ 1208 [2011] 1 WLR 2609 has held that in a Regulation 13 claim (i.e. the case of a person from England and Wales suffering injury in another EU state at the hands of a culpable but uninsured or unidentified driver, but

    7.

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  • claiming in England and Wales), the law by which the assessment of compensation is to be made is that of England and Wales. It held that the right to compensation arose under the Regulations. In the judgment of Moore-Bick LJ, he addressed the effect of the coming into force of Regulation (EC) No 864/2007 of the European Parliament and Council on the law applicable to non-contractual obligations ("Rome II") on this issue. Moore-Bick LJ there said that the law applying to the existence of tortious liability has, since Rome II, been the law of the country where the injury was caused, but that the law by which the court makes the assessment of compensation under the 2003 Regulations remains the law of England and Wales. That approach was endorsed in Bloy and Ireson v MIB [2013] EWCA 1543 [2014] PIQR P9. While the comments in the judgment of the Chancellor (Etherton LJ) in that case are obiter on the effect of Rome II, its ratio adopted the interpretation of Regulation 13(2) given in Jacobs.

    European Union Directives are not shy of using the traditional Latin names for the concepts involved. Those tags also have the advantage of being succinct and precise, and I shall use one or two. By lex fori is meant the law of the state in which the court dealing with the claim is situated, whereas lex loci delicti is the law of the state where the injury occurred, and in this case refers to Greece. (There are questions that can arise about the location of the relevant damage, but they are addressed in Rome II, and need not detain us here). Rome II applies the lex loci delicti to the issues of both liability and quantum, save in exceptional cases. The Court of Appeal has thus held in Jacobs that the lex fori applies to the assessment of compensation in claims under Regulation 13. However the Court of Appeal has since applied Rome II to actions in tort against the tortfeasor's insurer, including the rule that the assessment of compensation is made according to the lex loci delicti (see Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 per Longmore, Jackson and Christopher Clarke LJJ)). The Court of Appeal there applied the lex loci delicti to the two issues of liability and the assessment of damages, while matters of procedure - such as the way in which expert evidence would be adduced – was held to be a matter for the lex fori.

    8.

    The MIB contended in Jacobs and before me that since Rome II, Regulation 13 of the 2003 Regulations cannot be applied so as to provide for a level of compensation different from that obtainable in the country where the accident occurred – i.e. the application of lex loci delicti. The MIB obtained permission to appeal from the Supreme Court in Jacobs v MIB but before the appeal could be made and heard, the Court of Justice of the European Union (CJEU) gave judgment in Homawoo v GF Assurances C-412/10 [2011] ECR 1-11603. That held that Rome II was not in force at the relevant date in Jacobs, so that the appeal would have served no purpose and was not proceeded with. Bloy, which was decided after Jacobs, related to an accident which occurred before Rome II came into effect.

    9.

    In this case, the MIB argues that this is a case where there can be an appeal straight from the High Court to the United Kingdom Supreme Court. It does so without demur from the Claimant, whose consent to an appeal direct to the Supreme Court under section 12 of the Administration of Justice Act 1969 is recorded in the order of Master Yoxall already referred to. As I indicated to the parties at the hearing, I shall consider whether to make such an order having received submissions in the light of my judgment.

    10.

    The issue before the Court is twofold:11.

    (a) Does Regulation 13, on its true construction, state that the assessment of claims made under it must be assessed according to the law applying in

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    INCIDENTE ALL'ESTERO DA AUTO NON ASSICURATA. AZIONE NEL FORO DI RESIDENZA DEL DANNEGGIATO NEI CONFRONTI DEL NATIONAL BODY

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  • England and Wales ?

    (b) Given that Rome II is an EU regulation and is part of the law of the United Kingdom without the need for any domestic legislative steps to bring it into effect, is the effect of Rome II such that in a case falling within the Motor Insurance Directives, and therefore the 2003 Regulations, the court must now assess compensation in accordance with the law where the accident happened (lex loci delicti) and not that of England and Wales (lex fori)?

    Given the