2. English Choice-of-Law Rules
2.3. The 1995 Act
2.3.3. The Scope of the Applicable Law
Following the decision in Maher it can be said with confidence that the applicable law for issues
arising out of cross border road traffic accidents (other than issues relating to an insurer’s liability under a policy of insurance) will fall to be determined as ‘issues relating to tort’64 under the
’95 Act. However, further discussion is required in order to establish which issues will fall within the scope of the applicable law.
2.3.3.1. Rules Relating to Liability
The change from a system of double actionability, where the law of the forum always has a role to play, to a scheme which puts, at its heart, the law of the place where the incident occurred,
63 [2006] UKHL 32 [2007] 2 AC 1 HL. This case is discussed fully below at 2.3.3.3. 64 See s 9(1) of the Act.
2. English Choice of Law Rules
32 must indicate a willingness to admit claims for actions which would not constitute tortious behaviour under English law. This is displayed in the Act by s9(4), which states that the applicable law should determine whether an actionable tort has occurred. Although this must mean that actions can be founded on causes of action not known to English law, it must also include those rules of a foreign legal system which determine liability. Should a French victim of an accident in France bring a claim against an English defendant in the courts in England for example, this might mean that the claim could be brought against the owner of the car under the strict liability scheme which operates in French law,65 instead of having to bring the action
against the driver as English law would require.
2.3.3.2. Limitation Periods
In respect of limitation periods, since the commencement of the Foreign Limitation Periods Act 1984, the law relating to limitation is to be considered as substantive and the relevant rule of the applicable law should be applied. Section 1(1) of that Act states:
“(1) ... where in any action or proceedings in a court in England and Wales the law of any other country ... to be taken into account in the determination of any matter
(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings.”
Accordingly, claims which might be time barred under English law can still be brought under
longer foreign limitation periods. As noted in the introduction to this Chapter, this explains, in
65 France imposes such liability under Loi no. 85-677 of 5 July 1985, often referred to as the loi Badinter. See G. Viney and A
Guégan-Lécuyer ‘The Development of Traffic Liability in France’ in W Ernst (ed) The Development of Traffic Liability (Cambridge University Press, 2010) p60-69.
33 part, the continued relevance of the pre-Rome II English rules, even though more than three years have elapsed since the entry into force of the Regulation.66
2.3.3.3. Substance and procedure and the Quantification of Damages
With regard to procedural matters, s14(3)(b) of the Act states:
“... nothing in this part
(b) affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum.”
Any issue which is characterised as procedural shall be governed by the lex fori. It has long been
the position at common law that the type of damages which are recoverable is a matter of substantive law for the applicable law.67 However, the quantification of damage is considered to
be a matter of procedure, to be governed by the law of the forum.68 While settled at common
law, questions arose upon the commencement of the 1995 Act as to whether the common law position was retained or whether a new scheme was created by the Act where assessment of damages could now be characterised as substantive.
In Edmunds v Simmonds,69 an accident in Spain was held to be governed by English law.70
However, the High Court also noted that had Spanish law applied the quantification of damages,
66 Under English law there is a standard limitation period of three years in force in respect of claims which consist of or include a
claim in respect of personal injury (s11 Limitation Act 1980). Claims founded on tort which do not include an element of personal injury are subject to a six year limitation period (s2 Limitation act 1980) and time does not start to run on claims brought by minors until the claimant reaches the age of majority. Since many traffic accident claims will include a claim for personal injury any claim which occurred more than three years ago, before the entry into force of Rome II, will now be time barred. But as stated above under the Foreign Limitation Periods Act 1984 it is the limitation period under the applicable law which is relevant. This could be a much longer period, as in the case of Jones v Assurances Generales de France (AGF) SA [2010] I.L.Pr. 4, where the French 10 year limitation period applied.
67 It is this fact that gave rise to the need to develop an exception in the case of Boys v. Chaplin, for if the matter had been seen as
procedural English law would have determined it and the need for litigation would not have existed at all.
68 See Lord Pearson in Boys v. Chaplin [1971] AC 356, 394. 69 [2001] 1WLR 1003.
2. English Choice of Law Rules
34 as a procedural matter, would have been governed by English law in any event.71 In Roerig v
Valiant Trawlers,72 a question arose as to whether Dutch rules governing the recovery of certain
benefits from any compensation awarded should apply. The applicable law was held to be English, but the court ruled that in any event the matter would have been one of quantification and, thus, of procedure for the lex fori.73In Hulse v Chambers,74 it was accepted by the parties that
the law applicable to a road traffic accident in Greece, was Greek law. After surveying the authority on the point, both pre and post 1995, Holland J, taking the conventional line, concluded that assessment of damages was a procedural matter for the lex fori.75
It seems, however, that the matter would not rest and the case of Harding and Wealands76 raised
the matter again. This case concerned a car accident in New South Wales, Australia. The claimant was an English national living in England. The Defendant was an Australian national who had been resident in New South Wales prior to meeting and beginning a relationship with the claimant, whereupon she moved to London to live with him. During a trip to Australia and whilst travelling in the defendant’s car, which was registered and insured in New South Wales, the defendant lost control of the vehicle causing it to leave the road. The claimant suffered very serious injuries and was rendered tetraplegic.
The relevant statute of New South Wales would have imposed a cap on the amount of general damages recoverable, rendering the amount recoverable substantially less than was available under English law. The Court of Appeal held that there was no basis for a finding that the law of England was substantially more appropriate than the law of the place where the accident occurred, when this was also the national law of the defendant, as well as being the place where
70 On account of the fact that both the claimant and the defendant were English, normally resident in England, which was also
where the majority of the damage arose.
71Edmunds v. Simmonds (n58), 1011. 72 [2002] EWCA Civ 21; [2002] WLR 2304. 73 Ibid, [27].
74 [2001] 1 WLR 2386. 75 See in particular para 9.
35 the vehicle was insured. The strongest connection for the defendant was to the law of New South Wales and this had to be the applicable law.
With regard to the substance/procedure divide, the Court of Appeal took a more unexpected approach. The majority concluded that the Act, in giving precedence to the law of the place of the accident, meant that application of the law of the forum required an imperative which justified its application over that of the proper law. 77 Questions relating to the quantification of
damages were held to be substantive since they affected the substantive rights and obligations of the parties.
The House of Lords reversed this decision, reaffirming traditional understanding. Lord Hoffman expressed the view that there was no uncertainty regarding the rule on substance / procedure and that the principle was a settled rule of English law. He stated:
“Of course, taken out of context, the word “procedure” is ambiguous. In its narrow and perhaps most usual sense it means, as La Forest J expressed it in Tolofson v Jensen [1994] 3 SCR 1022 , 1072 those rules which “make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties”. Or it can have a wider meaning which embraces what Mason CJ in Stevens v Head (1993) 176 CLR 433 , 445 called “the traditional equation drawn between matters relating to a remedy and matters of procedure”. This is the sense in which the term has always been used in English private international law. If section 14 is read in its context, against the background of the existing rules of common law and the report of the Law Commission, there can be no doubt that the latter meaning was intended.” 78
77 Ibid [49] – [52]. 78 Ibid [36].
2. English Choice of Law Rules
36 Any provision which goes to the measurement of remedy as opposed to the scope of liability will therefore be deemed procedural, in line with the common understanding of that term as used within private international law. 79
This outcome has been heavily criticised, because the automatic selection of the law of the forum on this matter means that it will apply to cases where there is little or no connection to England, rendering application of English rules inappropriate.80 It has also been argued that the outcome
would disconnect issues of liability that were meant to go together with particular rules on damage, such as where a strict liability scheme only awarded limited damages due to ease with which liability could be established.81 However, it seems that the law is now clear: the assessment
of damages will be performed under the law of the forum – English law and the role of the applicable law is curtailed in this regard.