Will one Court of Appeal ruling shake Rome II’s foundations?

The Court of Appeal ruling in the Jacobs v MIB [Motor Insurers’ Bureau] case has created further confusion surrounding which country’s law should respond to a UK resident’s personal injury claim when an accident occurs abroad and the defendant is uninsured.

UK resident Clint Jacobs has won the right in the Court of Appeal to have his damages assessed according to UK law after he was injured in a car accident while on holiday in Spain in 2007. Jacobs was hit by a car in a Spanish shopping mall, which left him with serious leg injuries and a fractured pelvis.

This ruling overturned an earlier court decision that ruled Jacobs should have his damages assessed by Spanish law, in accordance with the rules set out by new regulation Rome II.

The win is significant because it is the first time in seven years that the jurisdictional issue that arose in the case – whether a UK resident injured in a European Economic Area (EEA) state should recover damages as if injured in the UK – has come before the courts.

When in Rome?

It creates questions over the application of Rome II, which came into force in January 2009. This stipulates that when a claim is made, the law that will apply is that of the country in which the accident occurred.

Rome II was designed to standardise rules across Europe and to reduce unnecessary costs. But the rule has sparked confusion over the date from which it should respond to claims. Initially, it was expected that Rome II would apply to accidents after 20 August 2007, where proceedings were issued after 11 January 2009. But the German Federal Court has since ruled that Rome II should only apply to events giving rise to damage after 11 January 2009.

In Jacobs v MIB, the judge held that Rome II applied to Jacobs’s accident in 2007 and the applicable law was Spanish.

But in the Court of Appeal, Jacob’s lawyers argued that where a person resident in the UK is injured in an EEA state by negligent driving of a vehicle normally used in an EEA state, and no insurance cover can be identified, then the MIB must compensate him as if the accident had happened in the UK.

MIB faces deluge

The MIB is planning to appeal the judgment. As damages in the UK tend to be higher that those in other EEA jurisdictions, it is likely that if this ruling stands, it will lead to more claimants seeking to recover damages from the MIB.

Law firm Beachcroft partner Paula Jefferson believes the ruling has led to a lack of clarity. “The purpose of Rome II was to create harmony in claims across Europe so, for example, people knew that if they had an accident in Germany, then it would be German law that would apply to their claims,” she says.

“It is now arguably more beneficial for an English claimant if they have an accident abroad and if the driver can’t be traced or there is no insurer, to bring their claims against the MIB. English law will then apply. It goes against what was the purpose of Rome II, and may encourage more people to bring more claims against the MIB.”