David Green, barrister at 12 King’s Bench Walk, considers an application to appeal against Dingemans J’s judgment in Pickard v Marshal on an important point in the construction of Article 4 of the Rome II Regulations.
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What are the practical implications of this case?
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.
What issues did this case raise?
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:
- both parties habitually reside in the same other country (Article 4(2) of Rome II), or
- it’s clear ‘from all the circumstances’ that the tort ‘is manifestly more closely connected with a country other than that indicated in paragraphs (1) or (2)’
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.
To what extent is the judgment helpful in clarifying the law in this area?
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.
What are the implications for practitioners? What will they need to be mindful of when advising in this area? Do you have any best practice tips?
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 appeal hearing.
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.
Are there still any grey areas practitioners will need to watch out for? If so, how can they avoid any possible problems?
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.
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Interviewed by Bridget O’Connell. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.