Direct claims

The Court of Appeal in Maher v Groupama Grand Est [2009] EWCA Civ 1191 has approved the first instance judgment ofBlair J, [2009] EWHC 38 (QB), as followed by Sharp J in Knight v Axa Assurances [2009] EWHC 1900 (QB), holding that a person injured in a road traffic accident elsewhere in the EC was entitled to bring an action in England, and that damages were to be assessed in accordance with English law although interest was tobe determined partly by English law and partly by the law of the place where the accident occurred. It is important to note that the ruling on damages is relevant only to accidents occurring before the coming into force of the Rome II Regulation in January 2009: under that Regulation, which determines the law applicable to a tort, damages are to be assessed in accordance with the law of the place in which the tort was committed and not the law of the place in which the claim is determined. The case was heard by Mummery, Moore-Bick and Etherton LJJ, and the leading judgment was given by Moore-Bick J.

Maher: the facts

On 29 July 2005, Mr and Mrs Maher were driving in France. Their vehicle was in a collision with a van being driven by M Kress. He was killed in the collision and the Mahers were both injured. They commenced direct proceedings in the English courts against the motor insurers of M Kress. The policy was governed by French law. It was common ground that the Mahers were entitled to proceed in England, by virtue of the ruling of the European Court of Justice in FBTO Schadeverzekeringen NV v Jack Odenbreit Case C-463/06, [2008] Lloyd’s Rep IR 354. Under the Fourth Motor Insurance Directive, European Parliament and Council Directive 2006/26/EC, all EC Member States were required to introduce into their domestic laws a direct action by the victim of a motor accident against the negligent driver’s insurers, thereby dispensing with the need for the victim to sue the driver and then to seek to enforce the judgment against his insurers. The Directive did not make provision for cross-border claims such as that in Maher, those being governed by the Brussels Regulation, European Council Regulation 44/2001. Article 9(1) of the Brussels Regulation provides that an insurer may be sued in the courts of the member state where ‘the policyholder, the insured or a beneficiary’ is domiciled, and art 1(2) extends art 9(1) to direct actions against insurers. In the Odenbreit case the ECJ ruled that a victim could, by virtue of art 11(2), rely upon art 9(1) in order to sue the wrongdoer’s insurers in the Member State of his own domicile.