Substantively procedural: Delineating boundaries in cross-border litigation

In a recent decision, the High Court has ruled that the manner in which expert evidence should be given is to be determined by reference to the procedural law of the forum and not the applicable, substantive law governing the dispute.1

The decision is an example of the inherent difficulties that can arise when litigating in one jurisdiction under the substantive law of another.

Background: Applicable law

The EC Regulation known as Rome II determines the governing law of non-contractual obligations (principally torts) arising between parties in civil and commercial matters.²

The purpose of the Regulation is to promote European-wide certainty through clear rules pursuant to which the applicable law is to be determined.  The general rule is that the law to be applied will be the law of the country in which the damage occurs or is likely to occur.³

The Regulation provides that this applicable law will govern, in particular (and amongst other matters):

• the basis and extent of liability; and
• the existence, the nature and the assessment of damage or the remedy claimed.⁴ 

Importantly, however, the Regulation does not extend to matters of evidence and procedure.⁵

Background: Jurisdiction and procedural law

An entirely different regime – set out in another EC Regulation, the Brussels Regulation - applies for determining jurisdiction as between EU states in civil and commercial matters.⁶

The general rule established by this Regulation is that persons domiciled in a member state should be sued in the courts of that member state.  This is, however, subject to a number of exceptions.  On the facts of the case below, a relevant exception provides that an injured party may bring an action directly against an insurer domiciled in another member state in the courts of the place where the claimant is domiciled.⁷

Facts

The English domiciled claimant, Mr Wall, suffered exceptionally serious injuries whilst on holiday in France, as a result of a collision with a car driven by Mr Clement.

Mr Wall issued a claim in the English court against Mr Clement's French motor insurers.

There was no dispute as to the fact that:

• the collision occurred as a result of the negligence of Mr Clement;
• Mr Wall was entitled to pursue the claim in England, pursuant to the Brussels Regulation; and
• the applicable law was French law, pursuant to Rome II.

Judgment was entered for Mr Wall, with damages to be assessed. 

Dispute

As part of that assessment Mr Wall referred to a number of medical reports from a spinal injuries consultant surgeon; a consultant clinical psychologist; and a further six expert reports on other topics (such as care, rehabilitation, and assisted technology).

Although there was no dispute that Part 35 of the English Civil Procedure Rules on expert evidence applied, Mr Clement's insurers argued that only one (or perhaps two) expert witnesses should be called, as would be customary in France, so as to arrive at a figure that would be awarded in France.  Mr Ward resisted this contention.

The essence of the dispute, as the judge noted, concerned the boundary between the applicable French law, in so far as that applied to the "assessment of damage" and the procedural English law, in so far as that applied to matters of "evidence and procedure". 

Mr Clement's insurers argued that applicable law, within the meaning of Rome II, must include the practices, conventions and guidelines regularly used by judges in assessing damages in the courts of the state whose law is the applicable law.  They maintained that this was the only way in which the legislative purpose of Rome II could be achieved.  To do otherwise would, in their submission, give undue weight to the law of the claimant's domicile.

Mr Wall's counsel submitted that the form of expert reports was plainly a procedural matter of case management and that there was no obvious way in which, under CPR Part 35, an expert could include in his report opinions obtained from another expert - of the kind referred to in France as a "sapiteur."  He also maintained that Rome II does not require uniformity of outcome.  Uniformity of outcome could only be assured if the English court was to disapply its own rules on disclosure and cross-examination which are clearly matters of evidence or procedure.

Decision

The judge held that the issue of which expert evidence the court should order fell to be determined by reference to English law as the law of the forum, on the basis that it was an issue of evidence and procedure.

He agreed that there was no provision, under English procedural rules, for the court to give permission to a single expert to convey to the court opinions of others whom s/he has consulted on matters which are not within the single expert's expertise.

The judge found there to be no obligation on the English court to adopt new procedures and to "to put itself in the position of a court in France and to decide the case as that court would have decided it."

Comment

The judge approved academic commentary to the effect that: "the court seised of the dispute must adopt a 'best fit' approach, using the procedural … powers that are available to it to reflect the remedial framework of the applicable law as closely as possible", but that it is not required to establish new procedures in order to accommodate those recognised by the law applicable under Rome II.⁸ 

This is plainly correct.  To have decided otherwise would have driven a coach and horses through the exemption, from Rome II, of laws on evidence and procedure.

Litigation in one jurisdiction under the laws of another will often give rise to challenging practical issues. This judgment nevertheless brings some welcome clarity to the endeavour.

¹ Wall v. Mutuelle De Poitiers Assurances [2013] EWHC 53 (QB)

² Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations

³ Article 4(1)

⁴ Article 15

⁵ Article 1(3)

⁶ Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

⁷ Article 11(2) of the Brussels Regulation and Case C-463/06 FBTO v Odenbreit [2007] ECR I-11321

⁸ Dickinson, A, Rome II Regulation: The Law Applicable to Non-Contractual Obligations (Oxford University Press) (2008)