INTERNATIONAL A PRACTICAL GUIDE TO DEALING WITH ACCIDENTS ABROAD

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1 INTERNATIONAL A Prcticl Guide Interntionl Prctice Group 2005/2006 A PRACTICAL GUIDE TO DEALING WITH ACCIDENTS ABROAD Howrd Plmer Q.C. Chrles Dougherty consider some problems re from personl jury ccidents brod. Introduction With growth trvel holidy opportunities, crese wreness recourse through litigtion, cidence personl jury ctions reltg ccidents brod hs mushroomed recent yers.whilst detils prticulr cident pper depressgly fmilir prospective Climnt s solicir ( rod trffic ccident, n ccident whilst workg brod or n jury suffered grounds or swimmg pool foreign hotel), fct ccident hs occurred foreign jurdiction crete numr difficulties for he unprepred. It tention th short guide exme questions might re purely rtious ren ignorg clims contrct (cludg contrcts surnce), under Fourth Mor Insurnce Directive, or enforce rights under Pckge Trvel, Pckge Holidys Pckge Tours Regultions As Englh personl jury wrds re generlly higher thn contentl Europe (levg side specil fetures U.S.A. systems) higher thn most foreign jurdictions, re substntive dvntges for Climnts brgg ir clims Engl pply Englh, prticulr reltion ssessment dmges. It lso procedurlly more ttrctive for n Englh resident Climnt brg h clim through Englh solicirs domestic ren. The immedite questions need considered reltion such ccidents fll under four heds: 1. Does Englh court hve jurdiction determe clim? 2. Wht rt reltion libility? In or words, reference body ntionl conduct proposed Defendnt considered, order determe wher such conduct gives re right dmges or or remedy? 3. By wht quntum dmges determed? 4. Wht re surnce implictions? These will considered turn. w w w. 2 t g. c o. u k

2 Jurdiction Englh Courts The first question, should considered when delg with clim reltg n ccident brod, wher Jurdiction Englh court hs jurdiction Englh Courts her clim. The first question, should considered when delg with clim There re reltg two regimes n ccident need brod, considered when lookg wher t question Englh wher court Englh hs Court hs jurdiction jurdiction over her dpute: clim. first, Brussels- Lugno Regime There reltg re two most regimes Europen countries; need second, rules considered for remg when foreign lookg countries t lid down Section question III wher CPR Prt 6. The Brussels-Lugno Englh Courts Regime refers hve collectively jurdiction over Brussels dpute: Convention, first, Lugno Convention Brussels-Lugno Council Regultion Regime reltg 44/2001. A modified version most Europen Brussels-Lugno countries; second, Regime pplies reltion rules for remg tr-uk cses. foreign countries lid down Section III CPR Prt 6. The Where Defendnt Brussels-Lugno domiciled Regime Engl refers If Defendnt collectively domiciled Brussels Engl, Convention, n Englh court will normlly Lugno hve Convention jurdiction determe Council clim rt Regultion even though 44/2001. it occurred A modified overses. version Th Brussels-Lugno Regime pplies true under Brussels-Lugno Regime under reltion tr-uk cses. common regime. Where Defendnt domiciled The primry Engl rule lid down Brussels-Lugno Regime (rticle If 2) Defendnt Defendnt should domiciled sued courts Engl, country n Englh court he domiciled will normlly ll or hve rules jurdiction re n exception determe primry clim rule. Thus Defendnt rt even domiciled though Engl it occurred overses. sued Engl Th served true with under proceedgs Brussels-Lugno wherever he (temporrily) Regime. A under Defendnt common domiciled nor Europen regime. stte The primry not rule (under lid down generl rule) sued Brussels-Lugno Engl, even if he Regime temporrily (rticle 2) Engl vilble Defendnt served should with process. sued The common regime courts works country slightly differently. he If Defendnt domiciled domiciled ll Engl or rules with re n jurdiction exception for purpose primry service, rule. he Thus served Defendnt sued Engl. domiciled If he Engl domiciled Engl but sued temporrily Engl brod, CPR 6.20(1) served permits with proceedgs wherever he service upon him out jurdiction, he (temporrily). A Defendnt domiciled sued Engl. However, if Defendnt domiciled nor Europen stte not non-europen stte, but temporrily with (under generl rule) sued jurdiction, Engl, he even served if he with process temporrily whilst Engl Engl (subject vilble n ppliction served hve with mtter tried process. elsewhere The under common doctre forum regime non conveniens) works courts slightly Engl differently. hve If jurdiction Defendnt reson domiciled vlid service Engl process Engl.Thus with person present jurdiction Engl, for who purpose not domiciled service, Brussels-Lugno he Regime served Stte, sued subject Engl. jurdiction If he Englh domiciled Courts regrdless Engl but ntionlity. temporrily brod, CPR 6.20(1) permits service upon him out Exceptions jurdiction, generl proposition he do ext. sued So for exmple, Engl. Brussels-Lugno However, Regime if cse, Defendnt if court nor domiciled Memr stte hs non-europen ssumed jurdiction stte, but reltion sme clim, Englh court hs decle jurdiction, even if Defendnt domiciled Engl. Under common regime, clim styed on grounds forum non conveniens if it cn shown it would clerly more pproprite for temporrily clim with tried brod jurdiction, see low. he served with process whilst Engl Where Defendnt (subject domiciled n ppliction outside Engl If hve proposed mtter Defendnt tried elsewhere not domiciled under Engl n doctre suit th country forum more non difficult. Both conveniens) Brussels-Lugno courts Regime Engl hve rules CPR Prt jurdiction 6.20 permit suit reson eir country vlid where service rtious ct process occurred or Engl. plce Thus where dmge person ws susted present see Engl, Art 5(3) who CPR 6.20(8). In not domiciled Brussels-Lugno personl jury ction type g considered Regime Stte, subject here, dmge will susted t pot jurdiction Englh Courts ccident. Generlly spekg, refore, ccidents regrdless ntionlity. brod Exceptions will ssocited generl with rts proposition committed brod. do However, ext. So for exmple, cse foreign Brusselsdomiciliries not Lugno orwe Regime menble cse, if jurdiction court Englh nor courts it Memr possible stte hs sue ssumed m here if it jurdiction pproprite for reltion m sme joed clim, s second or subsequent Englh defendnt, court hs when decle proceedgs re jurdiction, commenced even gst if Defendnt Defendnt who domiciled, or domiciled properly sued, th Engl. country Under see Article 6(1) CPR common 6.20(3). So, for regime, stnce, clim clim gst foreign styed Defendnt on who grounds lleged hve forum dropped non scffold conveniens clip on if Climnt s it cn hed shown on buildg it site would Frnce clerly joed more with pproprite clim commenced for Engl clim gst tried victim s brod Englh see employer, for low. filg provide proper hrd ht on buildg site question. The key difference tween common Where Brussels-Lugno Defendnt Regime domiciled under outside common Engl it only necessry court hs jurdiction If proposed over origl Defendnt Defendnt, not wheres under domiciled Brussels-Lugno Engl Regime n suit it necessry th country origl Defendnt more difficult. domiciled Both Engl. Brussels-Lugno Regime rules CPR Prt 6.20 permit suit eir Both country Brussels-Lugno where Regime rtious ct common occurred permit or third prties plce where joed dmge clim ws Defendnt susted even though see Art y 5(3) re domiciled CPR outside 6.20(8). jurdiction In Article personl 6(3) jury CPR ction 6.20(3A). type g considered here, dmge Forum Conveniens will susted t pot Perhps ccident. most Generlly importnt spekg, dtction tween refore, Brussels-Lugno ccidents Regime brod will common for ssocited present purposes with rts committed under brod. common n Englh However, Court cn sty cse clim if foreign Englh Court not domiciliries most convenient not orwe forum for menble dpute herd (forum jurdiction non conveniens). Englh Th, for courts exmple, it llows court possible tervene sue prevent m forum here if shoppg it where pproprite cse would for m more ppropritely joed s herd second elsewhere. or subsequent Relevnt fcrs defendnt, clude when loction proceedgs witnesses, convenience re commenced gst expense Defendnt who. Under domiciled, Brussels-Lugno or properly Regime, sued, th country see Article 6(1) however, court, if it hs jurdiction, does not hve CPR 6.20(3). So, for stnce, ny dcretion sty its proceedgs on grounds clim gst foreign Defendnt who forum non conveniens, even fvour non- 2 A Prcticl Guide Interntionl Prctice Group

3 Brussels-Lugno Regime Stte Owusu v Jckson [2005] 2 WLR 942.Th encourges forum shoppg s it llows Climnt brg clim jurdiction hs only n cidentl connection with ccident without fer clim g styed fvour lleged most pproprite hve dropped jurdiction. scffold It perhps n clip terestg on question Climnt s wher hed Climnt on buildg site Frnce joed who chooses brg clim here when Engl n with clim commenced Engl convenient forum, but where Brussels-Lugno gst victim s Englh employer, Regime pplies, cn neverless penled costs. for filg provide proper hrd ht on buildg site question. The key Objectg difference Jurdictiontween common As fr s Defendnts Brussels-Lugno re concerned, Regime rules stted bove must under considered common converse sense it it only undesirble necessry from Defendnt s court hs pot jurdiction view sued over Engl origl circumstnces Defendnt, need wheres exmed under determe Brussels-Lugno wher court Regime cn it persuded necessry it hs no jurdiction origl contue Defendnt seed domiciled mtter, wher Engl. cuse ppliction Brussels-Lugno Both Regime Brussels-Lugno or rules common Regime. common permit third prties joed clim Defendnt even though y re domiciled outside The procedure for objectg jurdiction set out jurdiction Article 6(3) CPR CPR Prt 6.20(3A). 11.The key pot r md reltion CPR 11 re only limited time re n objection Forum s Conveniens jurdiction. CPR 11(4) provides n ppliction Perhps under most CPR importnt 11(4) must dtction mde with 14 dys tween fter servg Brussels-Lugno cknowledgement Regime service. It importnt common note extendg for present time for defence purposes (wher greement under or common court order) does not extend n Englh time Court for objectg cn sty jurdiction. clim if If Defendnt Englh does not Court mke n ppliction not with most period specified convenient CPR forum 11(4) for he dpute treted s hvg ccepted herd jurdiction (forum non conveniens). CPR 11(5). Th, for exmple, llows court tervene It frequently prevent hppens forum shoppg Defendnt s where solicir files n cknowledgement cse would more ppropritely service obts herd n extension elsewhere. time for servg Relevnt defence, fcrs clude n puts loction witnesses, convenience ppers one side whilst merits re expense. Under vestigted. It n not reled, until o lte, Brussels-Lugno Regime, however, jurdiction court try cse should court, if it hs jurdiction, does not hve en hve chllenged ny n dcretion ppliction under sty Prt 11. its proceedgs on grounds forum Lw non Tort conveniens, even fvour non- Brussels-Lugno Regime Stte The Owusu v Jckson n sue [2005] rt 2 governed WLR 942. Privte Th Interntionl encourges forum Lw shoppg (Mcellneous s it llows Climnt brg clim Provions) Act 1995 ( Act ). Section 11(1) provides jurdiction hs only n cidentl : connection with ccident without fer clim g styed fvour The generl rule most pproprite jurdiction. It perhps country n terestg question wher events constitutg Climnt rt or who delict chooses occur. brg clim here when Engl n Section 11(2) convenient goes provide: forum, but where Where elements those events occur different countries, under generl rule tken s g Brussels-Lugno Regime pplies, cn neverless () for cuse penled ction costs. respect personl jury cused n dividul or deth resultg As from fr personl s Defendnts jury, re concerned, country where rules dividul stted ws bove when must he susted considered jury; converse sense it undesirble from Defendnt s pot (b) view for cuse sued Engl ction respect dmge circumstnces need property, exmed determe country where wher property court cn ws when it persuded ws dmged it hs no jurdiction contue seed mtter, wher cuse ppliction Prim fcie, refore, cse typicl Brussels-Lugno Regime or ccident brod will rules common. The plce procedure where ccident for objectg occurred. Th so even jurdiction where rtious set out ct (e.g. CPR negligent Prt 11. servicg The key cr) pot hs occurred r md different reltion country. CPR 11 re only limited time However, re generl n objection rule s dplced jurdiction. cert circumstnces CPR 11(4) so provides s mke n ppliction some under or CPR country. 11(4) Section must 12 Act mde provides: with 14 dys fter servg n cknowledgement service. It importnt (1) If it ppers note ll extendg circumstnces from time for defence (wher compron greement or court order) does not extend time for objectg jurdiction. () significnce If Defendnt fcrs does not connect mke rt n or ppliction delict with with country period whose would specified CPR under 11(4) generl he rule treted s hvg ccepted jurdiction CPR (b) 11(5). significnce ny fcrs It connect frequently hppens rt or delict with nor Defendnt s country, solicir files n cknowledgement service obts n extension time for servg it substntilly more pproprite for defence, n puts ppers one side whilst for determg merits sues re rg vestigted. cse, or It ny sue, n not or reled, country, until generl o lte, rule dplced jurdiction for court determg try those cse sues or should sue hve (s en cse chllenged ) n or ppliction country. under Prt 11. Lw (2) The fcrs Tort tken ccount s The connectg rt or delict n sue with rt country for governed purposes th Privte section Interntionl clude prticulr Lw fcrs (Mcellneous reltg Provions) prties, ny Act events 1995 ( constitute Act ). Section rt 11(1) or delict provides question or : ny circumstnces or consequences those events. The generl rule In or words, if it cn shown it substntilly more pproprite for nor 2005/2006 3

4 pply, generl rule under section 11 dplced fvour or country. Wht notble bout section 12(1) different decion country mde s events for different constitutg sues cse. rt The or delict most obvious occur. exmple would probbly one where libility quntum could Section shown 11(2) goes on more provide: ppropritely determed reference plce where ccident Where occurred elements those plce events where victim lived, occur respectively. different countries, under generl rule tken s g The courts hve considered terply tween sections 11 () for 12 cuse numr ction recent decions. respect Typiclly re personl re 2 wys jury, cused simple n negligence ccident dividul cses or brod, deth resultg generl rule from s personl jury, dplced so s mke Englh country where : dividul ws when he susted jury; (1) where victim rtfesor re both Englh residents, (b) prticulrly for cuse when y ction re trvellg respect or holidyg ger dmge property, country where property ws when it ws dmged (2) where rtfesor s cts hve en committed Engl it entirely co-cidentl where Prim fcie, refore, cse personl typicl jury occurs ccident (for brod stnce negligent pre-holidy servicg will cr whose plce brkes where fil whilst g ccident driven through occurred. Pyrenees). Th so even where rtious ct (e.g. The former negligent type cident servicg prticulrly cr) common hs cuse it occurred occurs every different time fmily country. or group holidymkers However, hve cr ccident generl whilst rule brod nocent dplced victims wh cert sue circumstnces driver. so s mke An exmple some or former country. type Section cse Edmunds 12 v Act provides: Simmonds [2001] 1 WLR The Climnt Defendnt were both domiciled Engl. They hired (1) If it ppers ll cr loclly. The Defendnt crshed hire cr circumstnces from compron Spnh lorry, jurg Climnt who ws her pssenger. Spnh () ws significnce prim fcie under section 11 fcrs Act. The question connect ws wher rt or it ws substntilly delict more pproprite with country for Englh whose pply. Grl J held would it ws. He held under lorry ws not responsible for generl ccident, rule thus did not come ply decidg wher fcrs poted Sp or Engl, (b) fct significnce cr ws hired ny sured Sp fcrs ws not overwhelmg connect weight. rt or delict with nor country, The first uthorittive cse on sections Act ws Court it Appel substntilly decion Roerig more v Vlint Trwlers pproprite Ltd [2002] for 1 WLR In cse Wller LJ (with for whom determg rest Cou rt sues rg Appel greed) poted out cse, or first ny tsk sue, identify or country, sue reltion it might suggested generl rule dplced generl rule under section 11 should not for determg. The next tsk identify fcrs connect rt (not sue) with Engl those connect rt with nor country. In Roerig ccident occurred on n Englh regtered those sues vessel or sue Defendnt (s ws n Englh compny. cse The ) decesed, however, ws Dutch loss or dependency country. would occur Holl. Wller LJ held fct decesed ws Dutch (2) h The dependnts fcrs would suffer ir tken loss Holl ws not ccount sufficient s connectg dplce generl rt rule under section or delict 11. As with he sid: (t country 2310): for purposes th section clude prticulr fcrs reltg prties, In my view ny word substntilly events key constitute word. The generl rt rule or not delict dlodged question esily. I thus or thk ny judge ws right view circumstnces he formed or consequences defendnts hd filed ir those ttempt events. do so. In Wller or LJ words, lso ppered if it cn pprove shown decion it Edmunds substntilly (t 2310). more pproprite for nor pply, generl rule under section 11 dplced fvour One cn entirely underst, if fortuiusly or country. two Englh persons re foreign country on Wht notble bout section 12(1) holidy one rtiously jures or, different decion mde s significnt fcrs fvour for different Engl g sues plce reference cse. The most obvious dmges should exmple ssessed would probbly mke it one substntilly where more libility pproprite quntum dmges could should shown ssessed Englh more ppropritely. determed reference plce where The ccident pproch occurred Roerig ws dopted g plce Court where Appel victim recent cse lived, Hrdg v respectively. Wels [2005] 1 WLR In Hrdg Climnt suffered The courts severe juries hve when considered he ws pssenger terply cr g tween driven sections Defendnt 11 on 12 dirt trck New numr South Wles. recent The decions. Climnt Typiclly ws Englh hd re lwys re en 2 domiciled wys, Engl. The simple Defendnt ws negligence n Austrlin ccident ntionl cses who hd brod, moved Engl on generl workg rule holidy s v live with Climnt some 6 months dplced erlier. They so s were mke descrid Englh s g : settled reltionship. The Climnt Defendnt hd gone NSW on holidy vit Defendnt s (1) where victim rtfesor re prents. The Defendnt hd NSW drivg license both Englh residents, prticulrly drove when her y own re cr trvellg ( she or holidyg hd lent reltion whilst ger she ws wy) ws sured n Austrlin surer. At first stnce judge held Englh (2) where ws substntilly rtfesor s more cts pproprite hve pplied en committed sues Engl quntum, prciplly it on bs entirely co-cidentl Climnt where Defendnt were livg ger personl jury settled occurs reltionship (for stnce Engl t time negligent ccident. pre-holidy The Court servicg Appel reversed judge. cr Wller whose LJ t brkes 1550 stted: fil whilst g driven through Pyrenees). But even ctg cutiously I simply cnnot ccept The conclusion former type defendnt s cident lk t prticulrly mteril common time with cuse Engl it occurs with Mr Hrdg 4 A Prcticl Guide Interntionl Prctice Group

5 ws fr more significnt thn her Austrlin connection, or strongest fcr fvourg New South Wles ws fct Ms Wels ws sured re. I would fully underst, every hvg time regrd fmily or group settled reltionship holidymkers Mr Hrdg hve cr Ms Wels ccident were, whilst brod if y hd en nocent on holidy victims Frnce when wh th sue ccident driver. occurred, [ ] Engl An might exmple hve en former found type cse substntilly Edmunds more v pproprite Simmonds [2001] 1 WLR hve dplced French The. Climnt But where generl Defendnt, virtue were section both domiciled 11 g Engl. where They rt occurred, hired lso cr loclly. ntionl The Defendnt one prties, crshed it will, I suggest, hire cr very difficult Spnh envge lorry, circumstnces jurg Climnt will who render ws her it substntilly pssenger. more Spnh pproprite ws prim ny sue fcie could tried reference under section some 11 or. Act. In The question ws wher it ws th cse ll judge relied on, s Mr substntilly more pproprite for Hddon-Cve emphsed, ws prties Englh pply. Grl J held settled reltionship, but however settled it ws. He held lorry ws reltionship, not responsible Ms Wels for hd left ccident, her cr New South Wles, thus did ws not still come citizen ply Austrli decidg drivg wher on New fcrs South poted Wles drivg Sp licence, or Engl, ccident occurred fct New South cr Wles. ws hired sured Sp ws not Thus, even overwhelmg though I weight. recogne need for cution, I The m simply first unble uthorittive ccept cse judge s on holdg sections th 11 cse 12 ppliction Act ws generl Court rule should Appel dpplied. decion Roerig v Vlint Trwlers Ltd [2002] 1 WLR It cler refore In cse Wller prim fcie LJ (with whom will not dplced rest esily. Court Appel greed) poted out first tsk identify sue reltion it Prcticlities might pledg suggested foreign generl rule under section 11 should not Before pledg. foreign The next tsk Climnt s solicir identify whose client hs fcrs suffered n connect jury brod rt will (not wnt form himself sue) wher with Engl plce those jury cretes connect sufficiently rt with nor generous country. for estblhg In libility Roerig for stnce, ccident does occurred negligence on n Englh regtered vessel hve proved or strict libility pplied? Is Defendnt ws n Englh compny. deduction mde for contribury negligence when The decesed, however, ws Dutch Climnt llows himself driven drunk? Are loss dependency would occur re sttury Holl. regultions Wller LJ held hve fct strictly complied with? decesed The Defendnt s ws solicir Dutch will crry out h sme dependnts vestigtion would fore decidg suffer ir wher loss chllenge Holl Climnt s ws not cse sufficient s dplce correct. generl Unless, rule prty under pleds section ( 11. proves) As he foreign, sid: court (t 2310): will simply pply Englh. Strds In mtter my view for locl word rules? substntilly key word. The generl rule not dlodged esily. I thus The thk judge ly ws down right wht gredients view relevnt he formed rt compre defendnts for stnce, if strict libility hd pplies, filed re ir no gredient ttempt do provg so. fult, but it necessry (for stnce rod ccident) estblh occurrence n impct with defendnt s cr. Where requires pro fult, typiclly pro lck resonble cre, it more difficult identify strd pro fult estblhed. One might suggest Wller LJ lso question ppered pprove relevnt strd will usully decion determed Edmunds reference (t 2310). strds plce where ccident occurred. Thus, Frnce one One cn expected entirely drive underst on right,, not if left. In Cliforni fortuiusly one two entitled Englh go through persons red light turn re right, foreign provided country one gives on wy holidy trffic comg from one left. Brech rtiously duty jures will refore usully judged or, se significnt strds or rules. fcrs fvour Engl g plce However, reference field dustril dmges ccident or dese should ssessed mke it clims, position not so cler. There hve recently substntilly more pproprite en clims mde gst Englh compnies llegg dmges should ssessed negligence bout opertions foreign Englh. countries where whole spectrum dustril sfety The pproch lgs severl decdes Roerig hd ws dopted th country. g These clims pper Court hve Appel proceeded on bs recent cse pproprite Hrdg strd v Wels for sfegurdg [2005] workmen 1 WLR universl In one Hrdg worldwide, Climnt regrdless suffered severe juries, rr when thn strd he tilored ws locl pssenger conditions. cr g driven Defendnt on dirt trck The New South Wles. The Climnt quntumws Englh hd lwys en domiciled Engl. The Defendnt ws n Austrlin If proceedgs ntionl re who hd brought moved Engl, Engl determtion workg, holidy v under 1995 live Act with sues Climnt quntum some cse, 6 months only prt erlier. sry. The They were descrid only s governs g substntive settled reltionship. The cse. Climnt The country Defendnt where hd proceedgs gone NSW re on brought holidy ( lex fori) governs vit procedurl Defendnt s. An ssessment prents. quntum The volves Defendnt both substntive hd NSW procedurl drivg. One cn license see th drove must her own so t cr ( extremes: it she procedurl hd lent rule reltion Englh whilst she dmges ws fll wy) ssessed judge ws (or jury), sured but not n pressionlly Austrlin qulified ssessors. surer. At Therefore, first stnce if it judge dmges held foreign Englh country ws dmges re substntilly ssessed such more mnner, pproprite such will not pplied pplied cse brought sues Engl, quntum, regrdless prciplly on rt. bs Climnt Defendnt were livg ger settled reltionship Engl On or t h, time heds ccident. dmge The recoverble Court n ction Appel rt hve reversed long en held judge. governed Wller substntive, LJ t 1550 not stted: procedurl,, i.e. s determed section 11 or 12 Act, But not even ctg lex fori. cutiously In old pre-act I simply cse Boys v Chpl cnnot [1971] ccept A.C. 356 conclusion rtfesor victim were both Englh defendnt s servicemen lk t Mlt mteril who were volved time mor with ccident. Engl The Mlt with did Mr not permit recovery Hrdg ws generl fr dmges more significnt for p sufferg thn loss her menity, Austrlin so connection, such hed or dmge ws irrecoverble strongest under Mltese, fcr but fvourg recoverble under Englh, New South. The Wles House ws Lords fct decidg Englh ws substntive governg 2005/2006 5

6 quntum (cuse lks tween prties Engl) re enbled Pltiff recover generl dmges would not hve en vilble hd Mltese en. Ms Wels ws sured re. I Dicey & Morr would (13th fully Ed. 2000) underst, gives exmples hvg t prgrph regrd quntum settled sues reltionship re questions substntive Mr Hrdg : Ms Wels were, if y hd en on holidy Frnce when th [Q]uestions such s wher loss erng cpcity ccident occurred, [ ] or p sufferg or ( ftl ccident clims) Engl might hve en found soltium or loss substntilly society re more dmsible pproprite heds dmge; ll questions hve remoteness dplced French dmge;. extence But extent where generl climnt s, duty mitigte dmge; virtue wher section exemplry 11 g dmges re recoverble; where extence rt occurred, extent lso fncil ceilgs on ntionl recoverble dmges; one prties, wher it recovery cn will, I suggest, hd for ny very hed difficult dmge unknown envge Englh circumstnces ; re questions will substntive render. it substntilly more pproprite ny sue could However, tried re reference debte s some wher or specific sue. res In th question cse ll procedurl judge or substntive. relied on, s Mr Hddon-Cve emphsed, ws prties settled reltionship, but however In Hulse v Chmrs settled [2001] 1 WLR reltionship, 2386, nor cse Ms Englh victims Wels rtfesor hd left volved her cr hire New cr ccident South foreign Wles, country (Greece) ws still (but one citizen where, perhps surprgly, Austrli drivg Climnts on conceded New South Greek Wles ws drivg licence, ), Holl J. determed ccident ssessment occurred generl New dmges South for p sufferg Wles. loss menity ws mtter procedurl, rr thn substntive, (Greek). Therefore, Thus, fct even Greek though wrds I for recogne such dmges were fr lower need thn those for cution, mde I Englh m simply courts would not vil unble Defendnt. ccept judge s holdg th cse The dividg ppliction le tween substnce generl procedure rule ws considered should recently dpplied. Court Appel Hrdg v Wels [2005] 1 WLR The mjority It cler refore prim held rules govern extent fcie will not dmges recoverble re prim fcie dplced esily. substntive fll determed ccordnce with Prcticlities dog pledg so y foreign refused follow dict contrry Roerig. They held provions, mongst Before or pledg thgs, cppg foreign level dmges, Climnt s settg solicir rte multiplier whose client terest hs were substntive. suffered The n decion jury brod Hulse will now wnt need reconsidered. form himself Wht re wher required, however, re rules plce mere fct jury courts cretes cert jurdictions sufficiently tend wrd generous more or less for estblhg (sr s th libility not reflected for rules) stnce, irrelevnt. does So negligence if juries cert hve US Stte conventionlly proved wrd or strict higher libility dmges pplied? thn Is court would deduction Engl mde irrelevnt for contribury unless juries re pplyg negligence different when legl rule. Climnt Hrdgllows now on its wy himself House Lords. driven drunk? Are Anor re doubt concerns deductibility nefits from fncil compensry wrds. For stnce, should rule such s enuncited Prry v Clever [1970] AC 1, ( proceeds surnce re pension sttury nefits regultions rg out n jury hve t work should ignored strictly complied computtion with? dmges The for loss Defendnt s erngs), solicir treted will s crry g out substntive or sme procedurl? vestigtion The Court fore Appel decidg decion Roerig, wher pprovg s chllenge it does pproch Climnt s Hodgson J cse pre-act s decion, correct Coupl v. Arbin. Gulf Petroleum Unless, [1983] 1 WLR prty 1136, pleds comes down ( firmly, proves) if strictly obiter, foreign fvour, such court rule will g simply procedurl pply nture. To Englh some. extent, ech cse must depend on its considertion foreign question. Strds mtter for locl rules? The Impct Insurnce ly down wht gredients relevnt rt compre Under for numr stnce, foreign if strict systems libility pplies, libility re surers no gredient rtfesor provg re mde directly fult, lible but it victim n ccident necessry cused (for rtiously stnce ir sured, rod ccordgly ccident) estblh surers cn sued directly occurrence victim. n Under impct Englh with re defendnt s limited right cr. ction Where direct gst Insurers provided requires Europen pro Communities fult, (Rights typiclly gst Insurers) pro Regultions lck 2002, but resonble th only pplies cre, with respect cuses more ction difficult for ccidents identify U.K. In respect strd ccidents brod pro re fult governed Englh estblhed. One might suggest re no direct cuse ction gst Insurers question relevnt strd will rtfesor lone must sued. usully determed reference strds plce where ccident If direct occurred. ction Thus, vilble Frnce gst one n surer rg expected out n drive ccident on brod, right, not question wher left. ny In dvntge Cliforni will one ccrue from entitled such course go ction through will depend red upon light turn right, provided foreign. Th will one require gives dvice wy from trffic suitbly comg qulified from foreign yer. left. In most Brech cses duty rtious will refore conduct, usully prticulrly committed judged se dividuls, strds extence or rules. extent surnce However, cover prmount field dustril considertion. In ccident cse rod or dese trffic ccidents clims, position expecttion re not will so cler. surnce There vilble. hve recently The Rod Trffic Act en 1988, clims fter ll, mde requires gst compulsory Englh surnce compnies effectively sts llegg upon negligence unlimited libility surnce, bout requirement opertions foreign relevnt countries surer must stfy where without limit whole ny spectrum judgment obted dustril gst its sfety sured. lgs Then severl re decdes hd MIB scheme cover th country. These clims pper unsured drivers. But Rod Trffic Act does not hve proceeded on bs pply regulte surnce rrngements outside pproprite strd for sfegurdg U.K. re no gurntee foreign jurdictions: workmen universl one worldwide, regrdless, () rr surnce thn strd compulsory; tilored locl conditions. (b) surnce, if compulsory, set t n The dequte mimum limit quntum demnity; If (c) proceedgs re re ny effective brought compensry Engl, mechnm determtion del with lck surnce, where such surnce compulsory. 6 A Prcticl Guide Interntionl Prctice Group

7 Even EU sttes, where rod trffic libility surnce compulsory re mechnm for providg compenstion where such surnce hs not en tken out, mimum required cover dequte cover wrds under 1995 U.K. Act for juries sues mximum severity.the quntum Second Council cse, Directive only prt 30 th Septemr 1983 sry. on Mor The Insurnce (84/5/EEC) fixed only requirement governs t only substntive 350,000 Euros (less thn 250,000); Fifth cse. Mor The Insurnce Directive, country pssed April 2005, where but effective proceedgs only from re 2007 brought ( n ( subject lex trnsitionl fori) governs period) will procedurl crese mimum. An permitted surnce ssessment limits quntum 1 million euros volves per victim both or 5 million substntive euros per ccident. procedurl. One cn see th must so t extremes: it procedurl rule From Insured s pot view, h contrctul Englh dmges fll right demnity under ny surnce policy will ssessed judge (or jury), but not determed pressionlly ccordnce with qulified proper ssessors. surnce contrct. Therefore, Where if it cr hired dmges brod surnce obted foreign t country pot hire, dmges th re will lmost undoubtedly ssessed such mnner, plce such hirg. will not pplied cse brought There Engl, very rel regrdless problem here for urts who hire crs, sce it simply rt. not prcticble tke out dditionl surnce On for or third prty h, libility when heds one flg dmge cr hire recoverble rrngements n foreign ction urt rt resort. Even hve where long surnce en held provided well governed bove EU required substntive, mimum (s not procedurl, Hulse cse), it i.e. cpped t figure referble s determed mximum conceivble section wrd 11 or 12 foreign country, Act, not figure still lex fori. woefully In dequte old pre-act cse cover Boys lrge quntum clims v Chpl ssessed [1971] ccordnce A.C. 356 with rtfesor Englh or ssessment victim dmge. were There both Englh n servicemen Mlt who were volved openg here for holidy surers fer n extension mor ccident. The Mlt ir product would rel vlue ir did not permit recovery generl clients. dmges for p sufferg loss menity, so such hed dmge ws irrecoverble under Mltese, but recoverble under Englh,. The House Lords, decidg Englh ws substntive governg quntum (cuse lks tween prties Engl) re enbled Pltiff recover generl dmges would not hve en vilble hd Mltese en. Dicey & Morr (13 th Ed. 2000) gives exmples t prgrph quntum sues re questions substntive : [Q]uestions such s wher loss erng cpcity or p sufferg or ( ftl ccident clims) soltium or loss society re dmsible heds dmge; ll questions remoteness Conclusion The most importnt dvice nyone delg with clim rg out n ccident overses seek identify dmge; ny jurdiction extence or choice extent sue s soon s possible. climnt s As seen bove, duty ny jurdictionl mitigte chllenge must dmge; mde wher swiftly, foreign exemplry needs pleded. dmges Furr re if recoverble; prty considerg tkg jurdictionl extence pot extent or relyg fncil on foreign it ceilgs on recoverble dmges; importnt obt dvice foreign yer t n wher recovery cn hd erly stge help determe wher re ny for ny hed dmge unknown prcticl dvntge dputg jurdiction or relyg Englh ; re questions on substntive foreign.. There little pot dputg jurdiction or relyg on foreign if foreign jurdiction However, or re likely debte less s fvourble wher client. specific sue res question procedurl or substntive. Dclimer: In Hulse v Chmrs [2001] 1 WLR 2386, nor cse Englh victims No libility ccepted uthors for ny errors rtfesor volved hire cr ccident or omsions (wher foreign negligent country or (Greece) not) th rticle (but one cont. where, The rticle perhps for surprgly, formtion purposes only Climnts not conceded tended s legl Greek dvice. Pressionl ws dvice should lwys ), obted Holl fore J. pplyg ny determed formtion prticulr circumstnces. ssessment generl dmges for p sufferg loss menity ws mtter procedurl, rr thn substntive (Greek). Therefore, fct Greek wrds for such dmges were fr lower thn those mde Englh courts would not vil Defendnt. The dividg le tween substnce procedure ws considered recently Court Appel Hrdg v Wels [2005] 1 WLR The mjority held rules govern extent dmges recoverble re prim fcie substntive fll determed ccordnce with dog so y refused follow dict contrry Roerig. They held provions, mongst or thgs, cppg level dmges, settg rte multiplier terest were substntive. The decion Hulse now need reconsidered. Wht re required, however, re rules mere fct courts cert jurdictions tend wre more or less (sr s th not reflected rules) irrelevnt. So if juries cert US Stte conventionlly wrd higher dmges thn court would Engl irrelevnt unless 2005/2006 7

8 About uthors Howrd Plmer Q.C. MA (Oxon) Chrles Dougherty BA (Oxon) BCL (Oxon) Cll 1977 Howrd hs wide experience ntionl terntionl litigtion rbitrtion, cludg conflicts s, surnce resurnce, construction engeerg contrcts, fire flood recoveries, pressionl clicl negligence personl jury. He presently volved preprtion for two House Lords ppels field pressionl negligence conflicts s (Hwrd v Fwcetts; Hrdg v Wels). He hs en volved or high prile Conflicts Lws cses recent pst. These clude Knuf UK GmbH v Fritz Peters KG (C.A.) ttempt brg suit U.K. forum rr thn Germny; Hmill v Hmill Spnh Insurers Brith driver Sp); W. Moore ( ptient) v HCI (Kent) Ltd.- Employer sug third prty over scffold ccident Nerls. Hrdg v Wels t present ledg uthority on rt proper ppliction foreign quntum. He hs ppered rbitrtion litigtion overses. He hs en clled d hoc Br Brunei. Direct le +44(0) E-mil Cll 1997 Chrles speciles commercil, prticulr conflict s, surnce resurnce work commercil frud. He former lecturer mngement consultnt. Chrles hs extensive experience delg with dputes s jurdiction. Notble reported cses re clude Hulse v Chmrs [2001] 1 WLR 2386 Hrdg v Wels [2005] 1 ALL ER 415 (CA). He contribur, sstnt edir, Europen Civil Prctice (Sweet & Mxwell, 2004, 2nd ed). He lso hs wide experience surnce/resurnce dputes rg out rnge types covers, cludg property, life, fidelity, pressionl demnity, jewellers, employer s libility, public libility, personl ccident busess terruption. Recent policy dpute cses Commercil Court clude Pedley v Avon Insurnce (2003) Fltlese Ltd v Mrkel Cpitl Ltd (2004). He hs lso cted lrge numr cses for gst brokers, cludg recent cse AIG v Whiteleys Insurnce Consultnts (2003). He recently ppered (with Col Edelmn QC) for resurers n 8 week 14m clim gst its former brokers for conspircy defrud - R+V Versicherung AG v Rk. He hs lectured extensively on commercil frud, surnce conflict s. Direct le +44(0) E-mil

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