Will Rome II be cast onto the “bonfire of regulation”?

Date published

25/11/2021

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This article was co-authored by David Armstrong, Trainee Solicitor, London.

The concept of retained EU law has been a major issue for the UK to navigate in leaving the EU.

On 16 September 2021, Lord Frost, the UK Government’s Brexit minister, made a statement to the House of Lords suggesting that the time has come for a substantive review of retained EU law. This provides an opportunity for the UK to adapt laws which are currently considered “not right for the UK”.

Retained EU law in international personal injury claims

Retained EU law describes the body of European law that has remained effective in the UK after the Brexit transition period ended.

The Rome II Regulation (Rome II) is an example of retained EU law which provides a framework to allow the courts to decide what the applicable law is when injury arises out of non-contractual obligations.

The Rome II Regulation (Rome II) is an example of retained EU law which provides a framework to allow the courts to decide what the applicable law is when injury arises out of non-contractual obligations. The Government has previously stated an intention to maintain the central concepts of this regulation and appear determined to retain international judicial cooperation in civil law.

A report published by the European Commission in October 2021 has sought to assess the success of Rome II and highlight areas of difficulty. It concluded that application of the regulation in the UK has been largely successful. However, there are some unresolved issues in personal injury claims when assessing damages under Rome II.

This was apparent in Wall v Mutuelle de Politiers [2014], where the Court of Appeal considered the meaning of “applicable law” under Article 15 of Rome II. In practice, few jurisdictions have extensive legal rules in place for determining quantum of claims and instead, often employ ‘soft laws’ which are guidelines and conventions built up over time. The Court of Appeal held that “applicable law” includes these soft laws when determining damages. As such, Rome II covers:

  • The basis and extent of liability
  • Grounds for exemption from liability, restriction of liability or any contributory negligence
  • Existence, nature and assessment of damages claimed
  • Rules of limitation
  • Interest (Scales v Motor Insurers Bureau [2020]).

Rome II will not apply to “evidence and procedure” (which should be governed by the law of the forum, i.e. where the claim is heard). Examples include questions of what expert evidence the court should order and applications for interim payments (although the applicable foreign law remains relevant to the substantive assessment of the quantum of the payment (Folkes (by his litigation friend Patrick Folkes) and Others v Generali Assurances [2019]).

The Commission’s report found that in practice, it has been hard to apply these soft law rules. Each jurisdiction applies their own soft law rules, whilst arriving at very different valuations of claims. The lack of formal rules has presented a challenge in predicting how a court will determine damages, which has ultimately created uncertainty as to quantum in claims for personal injury cases.

Further issues of unpredictability within Rome II have been presented by the majority judgment in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent) [20.10.21]. Guidance was provided on the presumption that where foreign law applies, but if there is insufficient evidence of the content of the law, the foreign law is assumed to be materially similar to English law on the relevant issue. Lord Leggatt recognised a greater remit for this presumption at an early stage in proceedings.

What next?

Lord Frost’s statement points towards amending laws which are “not right for the UK”. Although the UK Government has previously stated an intention to retain the core principles underpinning Rome II and that would probably suit many litigants, the application of this regulation has not been completely straightforward. It seems there is appetite within Government circles to make our legislation work. As such, Rome II’s days may be numbered.

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