In Robert Bacon v Nacional Suiza Cia Seguros Y Reseguros SA [2010] EWHC 2017 (QB), Mr Justice Tomlinson, in a preliminary issue hearing, was asked to determine (i) the grounds why Spanish law was applicable to the Defendant’s liability; and (ii) the issue of liability itself.
The Claimant, Mr Bacon, was seriously injured having been struck by a car on 7 September 2007 whilst on holiday in Spain. The Defendant, Nacional, provided liability insurance to the driver of the vehicle that struck Mr Bacon. The parties were agreed that the Defendant’s liability was to be determined by applying Spanish law. What was disputed was why.
The Defendant submitted that it was by virtue of Regulation (EC) No. 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations, commonly referred to as “Rome II”. The Claimant however submitted that Rome II was, on its own terms, not applicable to a claim for damages arising out of an accident which occurred on 7 September 2007. The judge referred to this issue as “the temporal scope of Rome II.”
Article 297 of the Treaty on the Functioning of the European Union states that EU Legislative Acts “shall enter into force on the date specified in them, or, in the absence thereof, on the twentieth day following that publication“. Rome II was published on 31 July 2007 therefore unless a date was specified, it entered into force on 20 August 2007. Article 32 of Rome II states that: “This Regulation shall apply from 11 January 2009“. The difference between “enter into force” and “shall apply” was referred to by the judge as a well established concept in European Union law despite its apparent oddity to English eyes. The judge found that the European legislature had clearly intended that there should be a difference between the entry into force of Rome II and its subsequent application.
Tomlinson J held that:
1. As to the liability of the driver, the judge found that on the evidence the Claimant was entirely to blame for the accident. The evidence that led the judge to find this is unremarkable.
2. Obiter (the judge’s finding on liability negated the need to examine the temporal scope of Rome II), had the driver been liable in any respect, Spanish law would govern the “existence, the nature and the assessment of damage, or the remedy claimed because of the applicability of Rome II.”
In relation to the applicability of Rome II, Tomlinson J held that Rome II dictates that, as from 11 January 2009, the law to be applied “to a non-contractual obligation arising out of events giving rise to damage occurring on or after 20 August 2007 shall be as prescribed by [Rome II].”
The judge also referred to his reading of the judgment of Mrs Justice Slade, DBE, in Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB) who had herself been asked to determine whether Rome II applied to a claim. In Homawoo, Slade J held that it was necessary to refer the matter for determination to the European Court of Justice (ECJ), however it was her preliminary view that Rome II applied only to accidents which occurred on or after 11 January 2009.
Homawoo has been referred to the ECJ, however until this issue of the temporal scope of Rome II is authoritatively determined, there exists scope for argument as to whether Rome II should be applied to accidents occurring between 20 August 2007 and 10 January 2009.