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Travel Talks: ‘Assessment of personal injury damages under foreign law’ by Stewarts Law

Chambers were delighted to have Chris Deacon, Partner at Stewarts Law, speak at our Annual Travel Law Conference this year.

The focus of Chris’ talk was on the assessment of personal injury damages under foreign law, an often complex task faced when litigating cross-border personal injury claims.

Chris started his talk by considering the distinction between procedural and substantive law before the commencement of the Rome II Regulations and how the applicable law would be used to identify the recoverable heads of damage but then English law (as the procedural la), would then be used to quantify those heads of loss.

With the application of the Rome II Regulations and the emphasis on harmonisation and predictability, those heads of loss fell to be determined under the foreign applicable law as well.

Chris reviewed the key decision of the Court of Appeal in Wall v Mutuelles de Poitiers [2014] EWCA 138 which enshrined the principle that the English Courts were to apply English procedural rules in determining the quantum of a claim governed under foreign law and that the procedural rules of that country should not be applied.

Thus an English Claimant would have access to the full suite of expert evidence that would be available if the case were governed by English substantive law rather than being limited to a narrower range of evidence that would be permitted had the case been litigated in the county whose law applied.

In determining the law of the forum, the delegates were reminded that it was not just ‘back letter law’ that applied but guidelines, conventions, scales and tariffs were also of importance.

Chris moved on to discuss his ongoing case of Mihailovskis v Amlin before Master Davison in April 2020.  The case involved an issue as to whether a party could obtain evidence from a foreign medico-legal expert or forensic expert.  Such issues tend to arise in cases where the applicable law is based on a tabular or tariff-based system where a point or percentage is given to a certain level of disability or a particular type of injury. Often a foreign law expert will assert they are unable to value the claim without the input of such an expert. Typically such experts would be appointed by a foreign court to make such an assessment.

Chris highlighted the following ‘practice points’ that could be drawn following Mihailovskis:

  1. The foreign law expert deals with foreign law, including any ‘soft’ or non-binding provisions of law and guidance used in the assessment of damages.
  2. The medical experts should prepare reports that deal with the causation of injury, condition and prognosis.
  3. Each parties’ lawyers should present their case on recoverable damages in a schedule and counter-schedule, bearing in mind the principles of foreign law.
  4. In the absence of agreement between the parties following service of the schedules and counter-schedules, it was for the trial judge to determine the assessment of damages on the evidence-based before him or her.

The result of the decision in Mihailovskis was that there was no place for foreign medico-legal or forensic expert evidence report in addition to foreign law expert reports.

It remains to be seen if the door has been bolted shut in respect of future applications for forensic expert evidence report in foreign law personal injury claims. However, it would appear that any party seeking permission to rely upon such a report would need compelling evidence to support their application.

Find out more

Our International Injury Team have the specialist expertise to advise on jurisdiction and applicable law issues in cross-border tort and contract claims and are frequently in court on disputed issues of choice of law and jurisdictional challenge.

For more information, please visit our expertise page or contact Paul Barton (+44 (0)207 427 4907).

News, Travel, Travel 10 Feb, 2021

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