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Articles | Fri 22nd May, 2020
Having worked together on a number of cases involving foreign expert evidence on quantum, and out of frustration having both come close to pulling the precious-little remaining hair from our respective sparse heads, we decided to commit our moaning to paper and inflict it upon you all. True, Wall v Mutuelle has some vintage now, and you would be forgiven for dismissing this article as a touch late as a legal update. But we simply attempt, below, to explain the relevant legal framework – as derived from Wall – and explain the practical difficulties and laments that travel litigators will be all too familiar with.
As all lawyers and law students will appreciate, it’s not often (if we’re being honest with ourselves) that reading judgments in full is pleasurable. In fact they’re normally an outright slog; a seemingly interminable process in which you consciously feel yourself ageing. Though the judgments of Longmore, Jackson and Christopher Clarke LJJ in Wall v Mutuelle certainly fall within this exclusive, enjoyable, category.
It’s one of the things that draws us both to travel law; looking at other legal systems, learning how they do things (with all the ‘weird’, ‘wonderful’ and ‘eminently sensible’ this reveals) and comparing them to our own. In doing so, as in this case, there can be really interesting questions of what ‘law’ even is. To have these issues grappled with by those as intellectually supreme as the judges in this case is a rare treat, and one which we wanted to revisit.
This article shall begin with a brief description of the case, followed by a discussion of the practical difficulties we regularly encounter in respect of the assessment of damages in French accident cases.
The Claimant, a man domiciled in the UK, was seriously injured in a road traffic accident while on holiday in France, and brought a claim in England under Brussels I and the Fourth and Fifth Motor Directives. He was represented by Robert Weir QC, and Matthew Chapman (as he then was) of 1 Chancery Lane Chambers. There was no dispute over jurisdiction and liability was admitted, leaving only quantum of damages to be determined. The question of the law to be used for this exercise, i.e. the applicable private international law for countries within the European Union, is set out in Parliament and Council Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (“Rome II”).
Article 4(1) of Rome II states that the “law applicable’’ to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs…” (my emphasis). Article 15 explains the scope of the “law applicable”, which includes: “… (c) the existence, the nature and the assessment of damage of the remedy claimed”.
So far, so simple. The “law applicable” is French law, and this specifically covers the assessment of damage. It gets trickier from there, though.
Article 1(3) states that the Regulations “shall not apply to evidence and procedure”. The position for the Claimant was therefore that French law applied, however not in respect of evidence and procedure which would be governed by English law. How expert evidence fits into this picture formed the basis of the dispute in this case.
The parties attended a case management hearing before Master Cook. The Claimant, in the usual English fashion, asked for permission to call expert evidence in a number of different disciplines (eight overall, with a possible further two). The Defendant insurers said this was inappropriate, since the applicable law was French. As such it was necessary, they said, to copy the approach the French courts take with expert evidence in assessing damages. In France the court selects one (sometimes two) medico-legal expert(s) to assist the judge, and such expert(s) may use “sub-experts” (known in France as “sapiteurs”) in other disciplines if they feel it’s necessary, then incorporating these external opinions into their own report. There is very limited opportunity to cross-examine either this court-chosen medico-legal expert or his/her selected sapiteurs.
Master Cook ordered a preliminary issue on the following question, to be resolved before he could made an order in respect of expert evidence:
“Does the issue of which expert evidence the court should order fall to be determined: (a) by reference to the law of the forum (English law) on the basis that this is an issue of evidence and procedure within article 1(3) of Rome II; or (b) by reference to the applicable law (French law) on the basis that this is an issue falling within article 15 of Rome II.”
Tugendhat J answered that it is English law which must be applied. His decision was unequivocally supported by Sir Richard Buxton who refused permission to appeal. The Defendant insurers were granted permission, however, following an oral permission hearing before Longmore LJ.
The Defendant insurers argued that the aim of Rome II is to promote certainty and uniformity, and to discourage forum-shopping. Therefore the English court applying foreign law should ensure uniformity of outcome, and as such the approach to expert evidence should be the same as in that foreign jurisdiction.
The Claimant responded that the explicit exclusion of “evidence and procedure” from the scope of Rome II meant it was inevitable there might not be uniformity of outcome. Indeed to seek such uniformity was to seek the unattainable.
Court of Appeal decision
The appeal was dismissed. Longmore LJ said this:
“It cannot be the case that the Regulation envisages that the law of the place where the damage occurs should govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case. An English court is ill-equipped to receive expert evidence given in the French manner.”
He reasoned there are a number of practical reasons why this must be so. The rules concerning disclosure would undoubtedly come under the “evidence and procedure” to be governed by English law, but how would these rules apply to a French-style single expert report? Moreover, and in a way which goes to the fundamental ‘adversarial vs. inquisitorial’ difference between the English and French systems, the English rules of evidence involve the provision of evidence by a procedure of examination (in chief, cross, and re-examination). How would this procedure work with the author of a French-style expert report; would the expert submit to this? Even if s/he did, the evidence would be meaningless because the evidence of the sapiteurs would amount to hearsay. When considering this situation in reverse, one images that a French court would not find it helpful to be presented with anachronistic English-style expert evidence.
Jackson LJ agreed, explaining that it is unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact. The courts of each European jurisdiction will have developed evidential practices with which both their judges and practitioners are comfortable. There is a radical difference between the dominant role judges take in jurisdictions such as Germany and the Netherlands, and the hands-off judicial approach taken in adversarial England. As Jackson LJ rightly points out, in a display of legal modesty: “it is inconceivable that the local courts will meekly adopt English evidential practices…. The judges and practitioners do not have requisite experience to adopt our evidential practices. We do not have the requisite experience to adopt theirs.” In my opinion, this is surely the most forceful point. It is one thing to apply different law within the normal procedures and working methods of the English court; it is a different thing altogether to apply foreign processes. It would feel like pantomime; it would be absurd and almost certainly involve their incorrect application.
The Court of Appeal did not end matters there. Rather they went further, and considered the question of whether “particulars tariffs, guidelines or formulae” constitute “applicable law”. For example the equivalent in the foreign jurisdiction of the Judicial College Guidelines for assessing general damages; does this constitute “law” and as such fall be to applied by the English court in assessing damages?
On one school of thought, judicial conventions and guidelines are not “law” at all. Judges are free to depart from them, and really they are not the kind of black letter law envisaged for the Regulation’s application. According to the other school of thought, this narrow view of “law” is inappropriate. Although they can be disapplied in a given case, judges will tend to follow them.
The Court preferred the latter school. Jackson LJ referred to the almighty Professor Ronald Dworkin, who eloquently demonstrated that law comprises both rules and principles. The latter do not dictate results, but they do exert influence. It is the difference, really, between ‘hard’ and ‘soft’ law.
The decision in practice
Following the decision in Wall, you could be forgiven for thinking the issue had been resolved and it would be plain sailing for English lawyers when dealing with foreign applicable law.
Just take one cup English medico legal evidence and stir with one cup foreign law, for a smooth and clear result!
However, as all seasoned travel litigation practitioners will know, when it comes to putting the ratio of the Wall judgement into action, it is not as straightforward as it may seem.
Somewhat ironically, resistance to the approach endorsed in Wall arises most commonly in cases where French is the applicable law. This is because French lawyers, recruited as CPR 35 experts tend to be disinclined – to put it mildly – to give expert evidence on quantum, at least to the extent desired by English lawyers.
French lawyers are of course prepared to provide detailed and thorough reports on the principals and heads of loss that are recoverable as a matter of French law, but are much more reluctant to put the ‘meat on the bones’ and opine on, for example, on the consolidation date for the injuries or where the claimant may sit on the tariff for aesthetic damage.
The French position is completely understandable. Determination of quantum is, in the French system, primarily the remit of a medical expert. The lawyer’s role, certainly in the context of non-pecuniary loss, is to feed the information given by the medical expert into the various tariffs and tables, in order to determine the quantum figures.
Therefore, to French eyes, asking a lawyer to consider English style medical evidence, and then opine on when the Claimant ‘consolidated’ is as unreasonable a request as it would be asking an English lawyer to opine on the evidence of degenerative changes on an MRI scan. These are matters, in French law, which are exclusively the domain of medical experts.
English lawyers (the writers included) have, by contrast, been conditioned to view this approach with incredulity. To English eyes a French medical examiner report, more often than not, reads as a cursory summary of injuries which, to our mind, the examiner is often not suitably qualified to opine on.
The idea of one report from one expert (as is usually the case) in anything other than the most straightforward cases strikes us not just as insufficient, but likely negligent.
Given our respective positions it is unsurprising that we should be so keen to avoid the involvement of a medico legal examiner whilst, by contrast, our French colleagues see this as an integral piece of the puzzle.
This is a perfect example of the significance of the Wall v Mutuelle decision described above; the two approaches are radically different. However, even where it is clear which jurisdiction’s evidential method is to be employed, there are still serious and frustrating practical difficulties.
So how is this issue resolved in practice? We have seen occasions when English lawyers, faced with resistance, have gone and obtained medical examiner evidence. In the humble opinion of your writers, this is likely to have a limiting effect on the damages recovered by the Claimant (indeed this was one of the main reasons this issue, in Wall v Mutuelle, was litigated all the way to the Court of Appeal).
A halfway house approach, which is popular, is to get the English experts to ‘fill in’ the role of the French examiner by asking them a series of questions designed to elucidate the answers that are desired by French lawyers. This way the English solicitor avoids the need for a French medical examiner report and the French lawyer gets the security blanket of the responses.
The third approach is to simply persevere and try and persuade your French expert that they should feel able to opine on these matters as part of their role as CPR 35 experts.
We have seen all three approaches deployed over the years, with varying levels of success.
It is submitted however, that every effort should be made to persuade our French colleagues that they should feel comfortable, with the necessary caveats at the outset of the report, to provide the sort of opinions that would, in France, be the exclusive reserve of a medical examiner, and that by doing so they are complying with their duty as CPR 35 experts and acting in an way with is consistent with the ratio in Wall.
It is further our opinion that this approach leads to the best quality and most cost-effective evidence.
About the authors
Mike Hagan is a travel litigation specialist with over a decade of experience. He has worked for some of the biggest PI firms in the country and has been recognised by the Legal 500 for the quality of his work. Mike is now heading up the travel litigation team at Fletchers Solicitors, within the firm’s flagship Serious Injury Unit. Mike is a member of both APIL & PEOPIL.
Richard Collier was called to the Bar in 2016. Before that, he worked as Judicial Assistant to Lord Justice Jackson in the Court of Appeal. In the short time he has been practising he has accumulated a wealth of experience in personal injury claims generally, with a particular emphasis on cross border and other travel related disputes.