Expert evidence following accidents abroad: the High Court provides guidance in the case of Wall v Mutuelle de Poitiers Assurances  EWHC 53 (QB)
In the first case dealing with the point since the coming into force of Regulation (EC) 864/2007 (namely “Rome II”), the High Court has ruled that expert evidence is a procedural matter to be dealt with in accordance with English law, but an appeal is pending.
Rome II came into force on 11 January 2009 and aims to harmonise the rules on the law applicable to non-contractual disputes, notably accidents abroad. The Regulation states that the law of the country where the accident occurs applies to all of the issues in the case, including the existence, nature and assessment of the injured individual’s entitlement to damages. At the same time, Rome II explicitly states that the Regulation does not apply to evidence and procedure.
While the question of which law applies to the assessment of damages may have been clear following the introduction of Rome II, practical difficulties arose regarding the scope of the applicable law and whether the English courts would require evidence from English medical experts or whether the evidence should be provided in accordance with the rules of procedure of the applicable foreign law. The question is important because rules on expert evidence in other jurisdictions can be more limiting and potentially hinder the English court’s ability to assess damages in a given case and to understand the impact of those injuries when the Claimant is living in England.
The issue came before the High Court in the case of Wall v Mutuelle de Poitiers Assurances  EWHC 53 (QB) where Tugendhat J held that expert evidence is an issue of “evidence and procedure” to be determined in accordance with English law when the claim is being pursued in the English courts.
Steve Wall was involved in a serious accident in France in July 2010 when his motorcycle collided with a car driven by a French national. Mr Wall instructed Julian Chamberlayne of Stewarts, a specialist in both overseas accidents and spinal cord injury claims, who advised the claim be brought in the English jurisdiction. Neither liability nor jurisdiction were disputed, but the parties could not reach agreement over the approach to the expert evidence needed to assist the Court to understand the life-long effect of Mr Wall’s spinal cord injury.
The decision of Tugendhat J is reassuring to the victims of accidents abroad who choose to pursue their claims through the English courts. It avoids the practical difficulty of having to travel abroad to see an expert in the country where they were injured and the risk that overseas expert may not fully understand how their disability needs are best met in England. It also avoids the English Court from having to try to understand and apply all aspects of overseas procedural rules.
The Defendant applications for permission to appeal were initially refused by Tugendhat J and then by the Rt Hon Sir Richard Buxton who said that “an English judge…would need to be persuaded that a revolution had taken place before he countenanced the determination of procedures for the adduction of evidence by reference to any system of law other than the lex fori. The judgment of Tugendhat demonstrates that no such revolution has occurred.” However, on their third attempt permission was granted by Longmore LJ and the issue is now proceeding to the Court of Appeal.
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