BACON V NACIONAL SUIZA CIA SEGUROS Y RESEGUROS SA

[2010] EWHC 2017 (QB), Queen's Bench Division, Mr Justice Tomlinson, 30 July 2010

Conflict of laws - Road traffic - Claimant injured in Spain - Direct action against driver's insurers in England - Law applicable to the claim - Whether Rome II Regulation determined measure of damages

The claimant was injured in a road accident in Spain on 7 September 2007. He commenced direct proceedings against the driver's motor liability insurers in England, the English court having jurisdiction to hear the action under article 12 of the Brussels Regulation. It was common ground that the claim was to be determined under Spanish law, but the dispute was whether damages were to be assessed under English law or under Spanish law. Under English law, before the Rome II Regulation on Non-Contractual Obligations, Council Regulation 864/2007, came into force, damages would be assessed under English law in accordance with the rule in Harding v Wealands [2007] 1 AC 1 that damages are procedural and to be assessed in accordance with the law of the forum. However, under the Rome II Regulation, damages are to be assessed in accordance with the law applicable to the substantive claim, Spanish law. There is a long-standing debate as to whether the Rome II Regulation applies to proceedings issued before 11 Janaury 2009, the date on which the Rome II Regulation came into force. The court did not need to address the point, as the conclusion on the facts of the case was that under Spanish law there was no liability at all, but Tomlinson J expressed the view that the Rome II Regulation did apply to events giving rise to damage and occurring before 11 January 2009.