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The case saw off an attempt to narrow the sorts of factors that could be used to assess whether a case has a ‘manifestly closer connection’ to one particular legal jurisdiction under Article 4(3) of Regulation (EC) 864/2007 (Rome II).
In effect, it means that the sort of broad, fact-based considerations taken by the trial judge—in particular, factors like whether there are other personal injury claims arising from the same accident, for which the choice of law is clear-cut—will
continue to be important in these sorts of cases.
The case is all about Article 4 of Rome II which defines the applicable law for cross-border claims that aren’t based on a contract (ie almost all personal injury claims with a cross-border element).
It provides that you look first at the country where the damage occurred (Article 4(1) of Rome II)—but this can be displaced if:
The trial judge found that Article 4(1) of Rome II required that French law should apply, but that Article 4(2) of Rome II displaced that in favour of English law—however, on the facts, Article 4(3) of Rome II was also engaged, which caused
the choice of law to ‘bounce back’ to France.
The case is a refusal of permission to appeal—so in one sense, the law is exactly the same as before. However, there are good reasons why practitioners should read the case. It is a crisp and concise consideration of a particularly technical
area. At first instance, Dingemans J expressly considered—and rejected—submissions that were based on the contents of some of the textbooks in the area, which perhaps indicates how contested some of these issues were before this case
and the subsequent application for permission to appeal.
The first tip must be not to rely too much on textbooks, particularly when they are in effect making submissions unsupported by judicial authority. The textbook writers came in for criticism at first instance in this case, which was upheld at the
Second, practitioners should be aware that when going through the stages of Article 4 of Rome II, it’s important to consider them in order, and also that it is possible that Article 4(3) of Rome II might indicate a choice of law which has already
been displaced in the move from Article 4(1) of Rome II to Article 4(2) of Rome II (as was the case here—the choice of law went from France to England, and back to France).
The third tip is that this is, ultimately, a very practical consideration—Dingemans J based his judgment on factors that were ultimately about the surrounding factual circumstances.
Although this was a case about Article 4(3) of Rome II, it didn’t test the limits of what is meant by ‘manifestly more closely connected’—the number of factors connecting the case to France, and their size, was clear once it
was accepted that these were legally relevant considerations. It remains to be seen how quickly a court would turn to Article 4(3) of Rome II in a more borderline case.
LexisPSL subscribers can access further guidance in Practice Note: Rome II—the general rule and displacing the general rule. If you are not a subscriber, you can take a free trial by clicking on the link below.
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Interviewed by Bridget O’Connell. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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