Rome II: determining applicable law

in cross-border cases

Read time: 5 minutes

News & Blog Blog Rome II: determining applicable law in cross-border cases

Rome II: determining applicable law in cross-border cases

Kelvin Farmaner

Partner, Trethowans LLP

Read time: 5 minutes
In New Law Journal of 24 February 2017, Kelvin Farmaner of the Forum of Insurance Lawyers and a Partner with Trethowans LLP, Paul Lavelle, Claims Manager of Van Ameyde UK and Charles Dougherty QC of 2TG report on a recent application of Art 4(3) of Regulation (EC) 864/2007 (known as Rome II).

In the case of Pickard v Marshall and Others; Generali France Assurances v Marshall and Others, in which Van Ameyde UK represented Generali, an appeal by a UK insurer to the Court of Appeal has been rejected so that the original decision of the High Court stands. This is thought to be the first reported case in the UK in which Art 4(3) has pointed back to the same law as Art 4(1) and will be interesting for multi-tort cases (such as a motor vehicle pile-up) when determining the applicable law.

The case relates to an accident in France in which an uninsured French car collided with two British nationals as they were standing behind a UK registered car and trailer, while the trailer was being attended to by a French registered recovery truck on the side of a motorway. After hitting the individuals the French car collided with the trailer, pushing it into the UK registered car which in turn was pushed into the recovery truck. One individual was thrown forward by the impact and landed clear of the vehicles and suffered serious injuries. The other was thrown off the front of the French car and the trailer fell on his leg. He died at the scene.

Two actions were commenced in England by the UK victims. The issues were (i) whether French or English law applied to the issue of liability; (ii) if French law applied, whether the UK vehicle and French recovery truck were “involved” within the meaning of the applicable French statute, Loi Badinter, and (iii) whether the MIB was liable under the 2003 Regulations. The Court determined that the applicable law was the law of France.

The decision provides a practical approach to complex multi-part cases subject to the ‘manifestly more closely connected’ test.

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Kelvin Farmaner

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