Article 2 & 4 of Council Regulation (EC) No 44/2001 22/12/2000 set out the basic rules:
Article 2
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.
Article 5
.....3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;....
Article 9 of Council Regulation (EC) No 44/2001 22/12/2000 states
1. An insurer domiciled in a Member State may be sued:
(a) in the courts of the Member State where he is domiciled, or
(b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled,
(c) if he is a co-insurer, in the courts of a Member State in which proceedings are brought against the leading insurer.
2. An insurer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.
2. Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.
3. If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.
Article 6 of Council
Regulation (EC) No 44/2001 22/12/2000 states
A person domiciled in a Member State may also be sued:
1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;......
Article 60 of Council Regulation (EC) No 44/2001 22/12/2000 states
1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:
(a) statutory seat, or
(b) central administration, or
(c) principal place of business.
2. For the purposes of the United Kingdom and Ireland "statutory seat" means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.
Article 27 of Council Regulation (EC) No 44/2001 22/12/2000 states
1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.
IMPORTANT NOTE: The Brussels Regulations (above) govern Jurisdiction of the court , they do not determine the Applicable Law that should be applied by the Court.
There are proposals for a sister EU Directive (so called "Rome II" European Parliament and Council Regulation on the Law Applicable to the Performance of Non-Contractual Obligations 2003/0168) which will determine the applicable law for non-contractual disputes , but for the time being, here in the UK we are stuck with the Private International Law (Miscellaneous Provisions) Act 1995 (c. 42).
Whilst liability obviously falls to be determined under the law of the road where the accident took place, Section 12 of the 1995 Act gives the Court a residual discretion when determining the applicable law for some or all issues arising in the case, and 14(3) (b) provides that notwithstanding that the UK court may apply foreign law to substantive issues, in matters of evidence, procedure, pleading and practice, the law of the "forum" ie the law of the UK Court shall apply (this is the so-called lex fori- the law of the Court which hears the case).
A very difficult question then concerns whether the determination as to what heads of loss are recoverable and as to whether the quantification of recoverable damages are matters of procedure excepted from the application of foreign law principles or whether they are matters of substantive law to be governed the law of the locality where the accident took place; see Harding v Wealands [2004] EWCA Civ 1735 CA: Waller, Arden LJJ and Sir William Aldous: 17 December 2004 [summary text] [full judgment].
Harding-v-Wealands is not very helpful for a UK PI lawyer, it sounds a warning bell that the English Courts are liable to apply the full breadth of lex loci (the law of the place where the RTA took place) which will effect matters such as what heads of loss can be claimed, how those heads of loss should be assessed and indeed whether the claim should be allowed to proceed at all; this is a harsh outcome bearing in mind that the recitals to Council Regulation (EC) No 44/2001, specify that the purpose of being able to sue the insurer in the Claimant's home court is to favour the weaker party. We therefore very much hope that proposed EU reform in this area (Rome II) will improve the position of the ordinary European citizen who finds himself or herself the victim of such an accident: we thus support the campaigning work of Diana Wallis MEP in this field.
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