Legal Update: Jurisdiction: Noteworthy arguments raised in pre-Rome II German road traffic accident case

Car crash

Alistair Kinley details an ongoing case with ramifications for claims with foreign elements.

Unusually, this report comments on the arguments raised before the Supreme Court in Katerina Cox v Ergo Versicherung AG, rather than the court’s decision. This is because, at the time of writing, the court’s decision has not yet been given. It is thought to be likely to be available later in the spring.

At the heart of the case is a fatal road accident caused by the negligence of a German citizen, which took place in Germany in 2004 and in which the claimant’s husband died. He was a member of the UK armed forces and he and his wife were stationed in Germany at the time of his death. She returned to the UK not long afterwards.

Under the Odenbreit decision of the European Court (Case C-463/06 of 13 December 2007), the insurer of the defendant may be sued in the courts in which the claimant is domiciled – hence England and Wales, the claimant having returned to the UK – and proceedings were commenced in England directly against the German motorist’s defendant’s insurer. This point is not controversial and was not in dispute.

Dependency claim
The key question concerned whether the claimant’s widow’s dependency claim should be valued using principles of German or English law. The claimant argued for the latter.

Both the High Court and the Court of Appeal dismissed her argument, and held that German law applied in respect of the dependency claim (or the near-equivalent under German provisions). The Court of Appeal split 2:1 on the point, with Dame Janet Smith in the minority finding for the claimant – and for English law. The claimant took her argument to the Supreme Court, which heard the case on 21 and 22 January.

At first sight, it might appear obvious that German law would apply. Had the accident happened after 1 January 2009, this would indeed be so under the Rome II regulation. German law would then need to be interrogated to decide “the existence, the nature and the assessment of damage or the remedy claimed”.

For earlier accidents, such as the one in the present case, the question would be governed by the Private International Law (Miscellaneous Provisions) Act 1995. This provides that the applicable law should be “the law of the country in which the events constituting the tort or delict in question occur”. Again, this would appear to point squarely to German law.

Subtle argument
Faced with these difficulties, the claimant advanced a subtle argument based on statutory interpretation and on what she contended to be the mandatory application of the Fatal Accidents Act 1976 – meaning its provisions are of universal and extra-territorial application. It would follow from that argument that English courts would be required to apply the provisions of the FAA – and in so doing, exclude foreign law – when claims arising from deaths abroad were brought before them.

Some support for this argument can be found in cases featuring dependency claims pursued under the FAA in respect of deaths of seamen in international waters. This aspect would take the case far beyond its narrow facts and into the field of seeking to ascertain the intention of parliament when drafting not only the 1976 Act but also the 1995 Act.

Regardless of the outcome, the decision of the Supreme Court will be of interest to anyone dealing with fatal claims involving a foreign element. A further report will be provided as soon as the decision is known.

Alistair Kinley, partner, Berrymans Lace Mawer

This article was published in the 13 March edition of Post magazine

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