Choice of Law in Delict (L19/20) Flashcards
What are the ‘multiple layers of law’ governing choice of law in delict?
Rome II Regulation (No 864/2007).
See also post-Brexit ‘assimilated’ version that applies in UK law.
Private International Law (Miscellaneous Provisions) Act 1995, Part III, ss9-15.
Common law.
When does Rome II apply (dates)?
Art 32:
Date of application – Rome II applies in all EU Member States to events giving rise to damage which occur on or after 11 January 2009.
Homawoo v GMF Assurance.
Bacon v Nacional Suica Cia Seguros.
What subject matter is excluded from the scope of Rome II?
Art 1: scope.
NB Art 1.2(g):
Excluded from the scope of the Regulation … ‘non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation’ (cf. art 30.2).
How has Brexit impacted the choice of law rules in delict for the UK?
Up to 31.12.20:
The 2019 UK-EU Withdrawal Agreement, provided by art 66(b) (‘Applicable law in contractual and non-contractual matters’) that, in the UK, Rome II shall apply in respect of events giving rise to damage, where such events occurred before the end of the transition period.
> 1.1.21: retained EU law:
(EU Exit) Regulations 2019 (SI 2019/834).
Rome II shall apply in UK, as national law, in respect of events giving rise to damage, where such events occurred after the end of the transition period, i.e after 1 January 2021.
EU Member State courts continue to apply Rome II and are not affected by Brexit.
UK law: an ‘assimilated version’ of Rome II continues to apply.
Ultimately arbiter is the UKSC, no longer bound by the CJEU.
What is the Rome II, article 3 rule of universal application?
When we look at the main rules of the Regulation, if they point to the law of a non-EU Member State, that law applies.
What is the general choice of law rule in delict under Rome II, article 4.1?
A lex loci damni rule.
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation is the law of the country in which the damage occurs. An obligation arising out of a tort/delict shall be irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
Under Rome II, article 4.2, what is the first exception to the general rule?
A rule of commonality (common HR of alleged wrongdoer and alleged victim).
- However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
Habitual residence – art 23 (partial definition only).
Defined the HR of legal persons (company). The place of central administration.
Natural persons, other than those acting in the course of business, are not defined. The principle place of business.
Under Rome II, article 4.3, what is the second exception to the general rule?
Manifestly more closely connected law.
- Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.
Proximity between a law and the delict.
E.g. employment contract, or contract of carriage.
Take into account personal law connecting factors.
What does Winrow v Hemphill [2014] tell us about the application of article 4?
Claimant was an English national. Moved from England to Germany with her army husband. Lived there for 8 years with their family.
Intended to return to the UK after his posting.
Winrow was a backseat passenger when Hemphill was driving. Involved in an accident. Winrow suffered injury. Returned to England 18 months after the accident. Brought proceedings against Hemphill and her insurer.
How much would Winrow get — dependent on whether it was assessed under English law or German law.
She wanted English law to apply. Article 4.2 argument.
She argued her habitual residence was England.
This argument was unsuccessful. They had been living on a settled basis in Germany.
Governing law = determined by art 4.1 = German law.
Also used an art 4.3 argument.
No way she could argue it was manifestly more closely connected to English law.
Slade J: one can bring in factors before the damaged manifested, and after.
Court use the ‘number of connections’ as a quantitative tally.
She had attended a clinic in England and lost earnings there, but this was not enough to replace art 4.1.
What does Rai v Ministry of Defence Queen’s Bench Division 9 May 2016 unreported tell us about the application of article 4?
Claimant was a solider with the British Army, stationed in Alberta, Canada. Undergoing training handling horses, training handled by a private company. A horse kicked him and he sustained serious injuries.
Judge concluded that it is a civil and commercial matter. The damage occurred in Canada. The law would normally apply.
A4.1 invoked, both parties were resident in England.
Argument that A4.3 should be invoked, NOT successful.
Judge referred to the ‘high hurdle’ of A4.3.
Clear connections with the law of Alberta. Considerations of breach of duty would necessitate that they investigate what happened at the locus. The contract between the MOD and the independent company was governed by Alberta law. But a CLOSER connection to English law. Weighing the connections is not required for A4.1, but when you bring in A4.3, it is required. Employment relation between MOD and Rai was governed by English law. MOD had undertaken to provide a level of care compatible with English standard. MOD must have known that the long-term implications would have been felt in England, where the soldiers are recruited from.
Not MANIFESTLY more connected with the law of Alberta.
What does Silverman v Ryanair DAC [2021] tell us about the application of article 4?
Claimant travelling from England to Berlin. Walking down the stairs from the terminal to embark on the plain, he suffered an injury. Brought a claim.
What law applied to his claim? He was in England when the accident happened, England law is the law under 4.1.
Wanted to show that it was more closely connected with Irish law… higher damages.
Ryanair argued English law was more applicable.
Held in favour of Irish law.
Para 73.
The existence of a choice of law clause connecting to the airline’s domicile, satisfies A4.3. Under the contract with Ryanair, there is a choie of Irish law under the contract. Can’t automatically apply to the delict. But the fact that it was the defendant’s domicile, and the law governing the contract.
More closely connected to Irish law.
What does Pickard v Marshall [Motor Insurers’ Bureau] [2017] tell us about the application of article 4?
Judge also refers to the high hurdle of A4.3.
Consistent with Rai.
What were the facts of Owen v Galgey [2020]?
Self-employed builder, domiciled in England.
Sued 5 parties for an injury in France.
Galgeys were acquaintance of Owen, neighbours in England, who had a villa in France. They had previously employed him to build in France for them.
After this, the let him holiday at the villa. Work was still underway. One night, he went to check on his car, fell into the swimming pool which was under renovation and had no water in it. Suffered injury, was in hospital. Sued the couple, their insurer, the contractor renovating the pool, and the contractor’s insurer.
Accepted that Owens v the contractor and their insurer was governed by French law.
What does Owen v Galgey [2020] tell us about the application of article 4?
What law governed the Galgeys and their insurer and the liability?
Common habitual residence — A4.2 pled by the Galgeys. Owens argued under A4.3. Manifestly more closely connected?
Linden J: A4.3 could displace 4.1 because claims against other defendants are governed by other law. This is a persuasive factor.
No clear guide as to what is more important factors.
Not necessary in order to invoke 4.3 that the court has to be satisfied that the case is somehow exceptional. It is given as a possibility, not to be seen as unreasonably difficult. When the court is applying A4, it must do so aware that the purpose of 4.1 and 4.2 is to achieve certainty. They will provide the answer unless the case is suitable to displacement.
4.3 is designed to introduce that flexibility albeit it will only operate in a clear case. A4.2 less significant where other defendants, who have a different HR.
Based on the things which are present at the time when the delict occurs.
A4.3 prevailed.
Different from Rai.
There is a series of delict-specific rules in arts 5 – 9. What are these?
Note: creates difficulties of classification.
Product liability (art 5; recital (20));
Unfair competition (art 6; recitals (21) and (22));
Environmental damage (art 7; recitals (23), (24) & (25));
Infringement of IP rights (art 8; recital (26)); and
Industrial action (art 9; recital (27)).
Specific rules for defamation claims and for road traffic accidents were considered but omitted.
