French or English law?

Maher and another v Groupama Grand Est [2009] EWHC 38 (QB); [2009] ALL ER (D) 183 (Jan)

The claimants were injured in a road traffic accident in France. The driver of the other vehicle was killed. The claimant sought damages against the deceased’s insurers and liability and the jurisdiction of the English court were not disputed. Two preliminary issues were: (a) were damages to be assessed under English or French law; and (b) under which law was pre-judgment interest to be determined? Under English conflict rules, it is well established that the assessment of damages in tort is a procedural matter and therefore governed by English law. The defendant submitted that because the claimants’ claim was against the deceased’s insurance company, it was a contractual claim because the insurer became involved only on the basis that it was contractually obliged to indemnify the policyholder and therefore it was a substantive rather than a procedural matter and thus governed by French law as the law applicable to the contract of insurance. The defendant also contended that for the same reason the availability of interest was a substantive rather than a procedural matter and therefore governed by French law, while the claimant argued that interest was claimed under s35A of the Supreme Court Act 1981 and was a procedural provision said to be decided as part of the law of the forum.