AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin [1971] A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138; [2014] 3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.
Mr. Wall was seriously injured in a traffic accident whilst on holiday in France. He brought a substantial personal injury claim in England against the French insurer of the other driver involved. The parties disputed how expert evidence should be adduced in the case. The French insurer argued that, because French law applied under Rome II, the French rules on the presentation of expert evidence were applicable. Significantly, this would have entailed the appointment of one or two medico-legal experts, who would then have produced a single expert report for the judge. The Court of Appeal disagreed, holding that expert evidence should be adduced in accordance with the rules of English law. The court also opined, obiter, that the term “applicable law” included judicial conventions and practices which fell short of “hard law” (Longmore L.J.'s terminology, at para. [24]). It is submitted that the court was correct in both respects.
On this point, Longmore L.J. had “no doubt” (at para. [12]) that the insurer's arguments failed. Longmore L.J. rejected even the “starting point” that to ensure certainty and discourage forum shopping through uniformity, an English court should strive to reach the same result that would be reached by a French court (at para. [5]). For Jackson L.J., the insurer's interpretation of Article 1(3) of Rome II was a “strained and artificial one” (at para. [42]). Moreover, judges and practitioners did not have the requisite expertise to adopt foreign evidential practices: to insist on them doing so would be “unrealistic and inefficient” (at para. [43]; similarly Longmore L.J. at para. [12]). Christopher Clarke L.J. agreed with both.
These arguments are convincing. As implicitly recognised by the Court of Appeal, the system of civil procedure in any given Contracting State is an interconnected web of rules, and it is not practically possible to remove only one moving part. If the insurer's argument had prevailed, for example, cross-examination of the expert would have been “meaningless”, given that she would not have had personal knowledge or expertise of at least some parts of the report (Longmore L.J., at para. [13]). As Jackson L.J. asked, how would the German fixed costs rules work if German parties were required in some (conflicts) cases each to instruct a plethora of experts from different fields? It is highly unlikely that Rome II was intended to require a result which would give rise to such practical problems.
In addition, the exclusion of renvoi from Rome II (Article 24) supports the conceptual view that Rome II does not require the forum to put itself “in the shoes” of a foreign court and try to decide the case exactly as it would have done. Rather, the exclusion of renvoi suggests that Rome II directs the forum to select certain, specific foreign rules to apply within its own system (A. Dickinson, The Rome II Regulation: The Law Applicable to Non-Contractual Obligations (Oxford 2008), 136–37, and W. Cook, The Logical and Legal Bases of the Conflict of Laws (Cambridge 1942), 19–21).
As noted above, the Court of Appeal accepted that the term “applicable law” in Article 15(c) of Rome II was broad enough to cover guidance to judges regarding the assessment of damages in personal injury cases. One of the reasons given by the Court of Appeal for this conclusion was specific to that guidance. Given that in some Contracting States such damages are calculated by reference to a statutory formula, whereas in others the guidance is less formal, Jackson L.J. was concerned about the “bizarre results” that might be caused by applying the former but not the latter (at para. [36]). The other reasons given by their Lordships, however, concerned judicial conventions more generally. Particularly broad was Longmore L.J.'s statement that such conventions, although “soft law”, were “law nevertheless” (at para. [24]). That they could be disapplied in appropriate cases did not change the fact that judges tended to follow them. Jackson L.J. made the same point but from a Dworkinian perspective, arguing that the law was made up of principles as well as rules (at para. [34]). Significantly, therefore, it appears that the Court of Appeal's logic would be directly applicable to other judicial conventions, such as foreign multiplicands and discount rates in personal injury cases.
In arriving at this conclusion, the Court of Appeal explicitly rejected the argument that foreign judicial conventions should be applied only if they pertain to matters of law rather than matters of fact (see J. Fawcett and J. Carruthers, Cheshire, North & Fawcett, Private International Law (Oxford 2008), 844–46; and A. Rushworth and A. Scott, “Rome II: Choice of Law for Non-Contractual Obligations” (2008) L.M.C.L.Q. 274). On this view, a foreign discount rate, for example, should be applied to damages if it is an artifice imposed to reduce insurance premiums, but not if it is a genuine attempt to calculate the claimant's loss. It is submitted that the Court of Appeal's reasoning should be preferred for two reasons: one textual, the other practical.
The textual argument for Cheshire & North's position stems from the equivalent provision in the now-superseded Rome Convention on the law applicable to contractual obligations 1980 (OJ 1998 C 27 p.34) (“the Rome Convention”). Article 10(1)(c) of the Rome Convention also provided for the lex causae to govern the assessment of damages, but only “in so far as it is governed by rules of law”. Article 11(e) of the Commission's Proposal for a regulation on the law applicable to non-contractual obligations (COM(2003) 427, 22 July 2013) contained identical wording, but that proviso was later dropped without explanation from the legislative process. Cheshire & North therefore argue that Rome II should be read as being (impliedly) limited in the same way as the Rome Convention. The problem with this argument is that it is, as Longmore L.J. observed, “a little double-edged” (at para. [23]). The Rome Convention proviso may well have been omitted deliberately, albeit that this was not specifically reported. Particularly because the wording of Article 15(c) does not suggest any distinction between different types of judicial conventions, it cannot safely be assumed that the Contracting States intended simply to reproduce the effect of the Rome Convention.
The practical problem with Cheshire & North's argument is that it requires one to distinguish sharply between judicial conventions that relate to matters of law and those that concern issues of fact. It is by no means clear, however, which side of the line many judicial conventions will fall. It is surely correct in one sense to say that the stipulated quantum of damages for amputation of an arm, for example, is an attempt to approximate a claimant's pain, suffering, and loss of amenity. But it is also to an extent an arbitrary figure set by law to ensure compensation which is proportionate to what is awarded for other injuries. Placing too much weight on this distinction therefore runs the risk of uncertainty and arbitrary results.
This argument does not mean that all foreign judicial conventions will be applicable under Rome II. Although conventions which determine the basis of the assessment of damages should be applied, Article 1(3) provides that proof of the underlying facts remains a matter for the lex fori (for this distinction, see Dickinson, The Rome II Regulation, pp. 575–76). For example, Article 15(c) would not require an English court to apply a foreign convention that a jury should determine the extent of the claimant's loss, since that relates to the method of proving a fact. It would, however, have to consider the basis on which such juries are instructed to assess damages. It is suggested that Article 1(3) alone provides a simpler and more rational limit on the effect of Article 15(c).
