An Englishman abroad: the pros and cons of overseas personal injury claims

As most conflicts lawyers know, an Englishman injured abroad will always want a cause of action against someone he can sue in England. However, until December 2007 English lawyers became accustomed to disappointing such clients, "I'd love to take on your case Mr Smith and to issue a claim form in England, but there is this tricky problem of jurisdiction and I'm afraid you will have to pursue your claim in France/Italy/Luxembourg [delete as appropriate]."

This changed on 13 December 2007 - just in time for Christmas - when the Court of Justice of the European Union (CJEU) gifted personal injury lawyers a new range of jurisdictional options for their injured clients. It would now be possible to sue in England for injury sustained in road traffic accidents in other European Union member states and, if that were not enough good news, the defendant to such actions would be the (corporate) person with the money: the foreign insurer.

The CJEU case that made this possible was FBTO Schadeverzekeringen NV v Jack Odenbreit [2007] Case C-463/06. By some deft work in the interpretation of section 3 (Articles 9 and 11) of the Brussels I Regulation (Council Regulation 44/2001) - what the CJEU referred to as a process of "teleological interpretation" - a means by which the English court could assume jurisdiction over European road traffic accident claims was provided. The conditions for such claims are as follows:

? that the injured party be domiciled in England;

? that the insurer be domiciled (that is, registered or incorporated) in another member state (France, Germany etc); and,

? that the governing law (the law of France, Germany etc) permits such a direct action against the insurer.

?The requirement that the governing law permits such a direct action is - in a motor accident context - satisfied in every member state as a result of the mandatory effect of the Fourth (now Sixth) Motor Insurance Directive (although, rather oddly, in this jurisdiction such direct right of action is limited to accidents that take place within the United Kingdom).

New opportunities

The CJEU's decision has resulted in a large volume of additional work for those who specialise in this field. In spite of the straitened economic climate, English tourists continue to travel abroad in very large numbers and continental Europe remains the destination for most.

The increase in travel overseas has coincided with the expansion of bespoke, independent or 'off-package' holidays with the result that those injured abroad may not have recourse to the UK tour operator under the Package Travel Regulations 1992 when things go wrong (and someone is injured) during the course of the holiday.

As a result of FBTO v Odenbreit, road traffic accident victims now have the option of suing the European insurer of the tortfeasor driver when they return home. The CJEU used the Motor Insurance Directives to support its reasoning in FBTO v Odenbreit, but English lawyers swiftly recognised that there was no reason not to apply the essential logic of this decision - that an injured party should be entitled to sue the foreign insurer in his 'local' court where the governing law allowed this - to any tort claim.

In Thwaites v Aviva Assurances [2009] 18 September (MCLCC) jurisdiction was successfully established in a claim brought against a French insurer by an English person injured at a French adventure park. The law of most of the larger EU member state jurisdictions permits direct claims against insurers whether the underlying accident is a motor claim or otherwise.

Again, this facility has enlarged the jurisdiction of the English courts to deal with the full range of tortious accidents (occupier's liability and clinical negligence to name but two) that occur in other European countries. In this context, it can fairly be said that a European Regulation (Brussels I) and a decision of the CJEU have significantly increased the jurisdictional powers of the English court and have created opportunities for English personal injury lawyers where none previously existed. In this area, at least, the European Union's direction of travel has clearly been in more than one direction.

However, the expanding role of the English courts in Odenbreit-style personal injury claims has been accompanied by a number of problems and glitches that are still being dealt with (there is a splendid irony that the English common law judiciary are already embarked on the proper interpretation of the governing European Union legislation in a manner that may take it some way further than the legislators intended).

Tricky questions

First, there is the obvious and practical problem of service. Most EU (motor) insurers will, in accordance with their obligations under the Motor Insurance Directives, appoint a UK claims handler to deal with the claim and these will, in turn, nominate solicitors for service within the jurisdiction. However, this does not invariably happen and it is not unknown for English solicitors to have to grapple with the mandatory provisions of the EU Service Regulation (1393/2007) and a plethora of tricky local rules on service (at the other end of the process there may be difficulties with the enforcement of judgments, particularly costs judgments, in overseas jurisdictions).

Second, there is the applicable law complication: the English court has jurisdiction over Mr Smith's claim arising out of a road traffic accident in Spain, but what is the governing law? As a result of Maher and Maher v Groupama Grand Est [2009] 1 WLR 175 (QB), [2010] 1 WLR 1564 (CA) we know that Odenbreit-style claims are to be characterised as tort claims and so governed by the private international law rules that control claims in tort. As a result, claims arising out of accidents before 11 January 2009 are dealt with under the rules contained in Part III of the Private International Law (Miscellaneous Provisions) Act 1995 and claims which arise out of accidents after this date will be governed by the Rome II Regulation (No 864/2007) (the harmonisation project of the European Union has, it will be noted, extended to cover domestic rules on applicable law in tort).

The scope and application of the Rome II Regulation gives rise to most of the remaining puzzles (and risks for the unwary) that arise in this area. These include the following:

? limitation is governed by the applicable law and it can be a nasty surprise to discover that personal injury limitation periods in certain European jurisdictions (Spain, for example) are much abbreviated when compared to England;

? under the Rome II Regulation, the "existence, nature and the assessment of damage", in addition to issues of primary liability, contributory negligence and causation, will be governed by the applicable law - the extension of the reach of the (foreign) applicable law to the assessment of damage is, on the face of it, a revolutionary change from the position that pertained under Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The English courts are still getting to grips with this aspect of Rome II, but - insofar as it is possible to predict anything with certainty - it seems likely that English courts will have to get used to the reception of expert opinion evidence from foreign lawyers in an ever increasing number of personal injury claims (it will be noted that recital (33) to Rome II further confuses this issue for road traffic accident personal injury claims);

? Article 1.3 of the Rome II Regulation makes it clear that evidence and procedure will, notwithstanding the application of foreign law, continue to be governed by the law of the forum (that is, the law of the English court with jurisdiction). The implications of this for case management decisions where foreign law will govern the assessment of damages is still being worked out by the English courts (see, for example, Wall v Mutuelle de Poitiers Assurances [2013] EWHC 53 (QB)); and

? if the English victim of a road traffic accident is struck down overseas by an uninsured driver, there remains controversy about the law to apply to the assessment of damages where a claim is brought against the Motor Insurers' Bureau in England (although, see Jacobs v MIB [2011] 1 WLR 2609 (CA) and Bloy & Ireson v MIB [2013] 11 January (QB)).

?In 1974 Lord Denning MR warned, with characteristic prescience, that, "In future, in transactions which cross the frontiers, we must no longer speak and think of English law as something on its own. We must speak and think of [European] community law, of community rights and we must give effect to them. This means a great effort for the lawyers. We have to learn a new system....We must get down to it." (Bulmer Ltd v Bollinger SA [1974] 1 Ch 401, 419A- C (CA))

English personal injury and conflicts lawyers are getting down to it and are coping with the opportunities and risks presented by this recent expansion in ?the law.