As a member of the European Economic Community, the UK abides by the rulings of the European Court. From time to time the European Court issues directives to the member states to comply with certain laws. One of these directives is called Rome II. It governs the handling of, amongst other things, claims for personal injuries arising in any of the member states.
The General Rule
The basic change introduced by Rome II is that the applicable law for the resolution of non contractual disputes is determined on the basis of where the damage occurs, or is likely to occur, regardless of the country or counties in which the act giving rise to the damage occurs. This is subject to certain exceptions where that would be inappropriate, for example, if the situation only has a tenuous connection with the country where the damage has occurred.
It will not always be obvious where the place the damage occurred is, particularly in claims for financial loss caused by certain commercial torts. For example in a claim for negligent representation this could be the place where an investor received and decided to act on the representation, or the place where the resulting investment was made or the loss discovered. Although Judges will decide on a case bay case basis, analogies may be drawn with earlier cases in the jurisdiction or previous choices of law rules.
The place of damage is the place where “damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”. The difference between “direct” and “indirect” damage has previously been considered under the Brussels’ regulation.
The place of damage rule is subject to 2 exceptions:
- If the parties have the same habitual residence at the time of damage, the law of that country shall apply to the exclusion of the law of the place of damage. There need be no further need for connection between place of mutual habitual residence and the damage in question. There is no definition of habitual residence generally in Rome II, but it is defined in 3 circumstances
- The habitual residence of companies and of the bodies, corporate or unincorporated is the place of their central administration;
- Where the events giving rise to the damage occurs or the damage arises in the course of operation of a branch, agency or any other establishment, the place where the breach, agency or other establishment is located to be treated as the place of habitual residence;
- The habitual residence of a natural person acting in the course of his or her business activity shall be his or her principle place of business.
- The tort is manifestly more closely connected with another country. This exception will allow for displacement of either the law of the place of damage or the laws of the place of mutual habitual residence and in the case of the latter, may mean reinstating the law of the place of damage. The requirements of a manifestly closer connection is intended to convey the exceptional nature of the rule.
- The result of this in tortuous claims is that personal injury claims involving accidents abroad can be brought in the UK even if the courts hearing the dispute are required to adjudicate on the issues of liability and damage using the law of the country in which the damage occurred.
So even if you have an accident in Europe, say a road accident involving a European national who was at fault then you do not have to pursue the person in their country of residence using their legal system because your damage is manifest in the UK and so you can pursue your case in the English courts using English lawyers. We have specialists that understand how this works and may be able to help you.
If you’ve had an accident whilst driving in Europe that wasn’t your fault, please contact us on 0845 450 6135 or email firstname.lastname@example.org for more information on how we can help you receive compensation.