Brief summary: following the exit of the United Kingdom from the European Union, EU regulations cease to form part of English law, which raises the fundamental question of whether British citizens who suffer accidents in EU Member States must always claim before the courts of the place of the damage, or whether they can do so in their own domicile.
At Belzuz Abogados (Insuralex Spain), as experts in Insurance Law, we receive queries on current issues, in addition to keeping abreast of changes in the regulations that may affect our sector, both in our domestic law and in the EU regulations and those of other countries which, due to their proximity and relationship with our country, may be of interest for the better performance of our work.
In this regard, the implications that the United Kingdom’s decision to leave the European Union (colloquially known as “Brexit”) has had on the lives of Europeans have been enormous, as the United Kingdom not only took the decision to leave a supranational organisation such as the EU, or its policy of free movement of people and goods, but this decision means leaving an entire regulatory framework, European Union law, which, through its various rules, such as Regulations and Directives, increasingly regulate more and more aspects of our daily lives, and which, through its various rules, such as Regulations and Directives, regulate more and more aspects of the European Union’s legal framework.
What was the situation before Brexit?
In this regard, and for the subject matter of this article, the fundamental question is where can a consumer sue for an accident suffered while travelling in another country? The question of determining which courts have jurisdiction and territorial competence over a case is not always simple, especially when we are talking about cross-border cases and when there are different points of connection that justify the competence of one or other bodies. In order to solve this problem, national and international laws contain a series of criteria called “forums” or “jurisdictions”, aimed at answering the fundamental question of where a case should be tried.
There are mandatory forums, where the law does not give freedom of choice (e.g. in matters of real estate rights, the court of the place where the property is located has jurisdiction). There are also elective forums (when in a contract the parties agree to submit to the courts of a certain jurisdiction). In addition, there are special rules for some cases (such as the consumer courts to which we will refer later). However, it is important to be clear about one thing: in the absence of specific criteria such as the above, the general forum of the defendant’s domicile applies. In other words, if you bring a civil action against someone else, the general forum dictates that you will have to do so at the defendant’s domicile, which is the rule.
Having said that, within European Union law, some special forums have been established in which the plaintiff is given the possibility of suing in his own domicile, one of the most relevant cases being the case in which the plaintiff is a consumer, taking into account in this case the character of “most vulnerable party” that characterises the consumer, which justifies modifying the general forum to give him the added facility of suing in his own domicile.
Thus, the now repealed Regulation 44/2001 contained a provision in Article 11 that allowed the insurance company to sue the insurer in the courts hearing the claim of the injured party against the insured, a rule reproduced in Article 13 of the current Regulation 1215/2012 (Brussels Ia).
On the other hand, the Brussels Ia Regulation also contains a specific rule in Article 18 allowing the consumer to sue in his own domicile, but only if there is a contract between the consumer and the party against whom he is suing. Furthermore, the general rule is that where there is non-contractual liability, the courts having jurisdiction to hear an action for damages are those of the place where the damage occurred.
In application of the above rules, some British consumers had successfully brought claims before their own courts, through a variety of mechanisms, such as bringing the claim directly against the insurer of the tortfeasor. One famous case is Hoteles Piñero Canarias S.L. v Godrey Keefe, in which the claimant suffered injuries caused by an unfixed parasol during a stay in Tenerife. The injured party decided to bring proceedings in the UK courts, directly against the hotel’s insurer, and then called the hotel into the proceedings as well, which opposed the hearing of the case by the UK courts.
The Court of Appeal resolved this opposition by considering that the British jurisdiction could hear the case, in application of Articles 9 and 11 of the aforementioned Regulation 44/2001, now repealed by the Brussels Ia Regulation, which maintains the same rules. As an argument for its decision, the British court referred to the spirit of the rule, understanding in this case that the aim pursued by these provisions was, among others, to guarantee more favourable protection for the weaker party in the dispute.
What is the situation after Brexit?
As we can see, all the legal argumentation followed in the above case led to justifying the jurisdiction of the British courts on the basis of European Union law. With the departure of the United Kingdom from the common regulatory framework, these rules will no longer be applicable. Aware of the problems that this situation could cause, the United Kingdom established a transitional period, which expired at 23:00 on 31 December 2020, and the Brussels I Bis Regulation, which governs these matters, ceased to apply from that time. A transitional rule was established whereby the Regulation will continue to apply for judgments rendered in proceedings initiated before that date, but cannot be taken into account for any claims initiated after 31 December 2020. From that time, claims will be subject to the Civil Jurisdiction and Judgments Act 1982.
Under this Act, where there is a consumer contract, consumers domiciled in the UK can bring proceedings against the other party in the courts of the consumer’s domicile. Where there is no consumer contract, the common law provides that the plaintiff must obtain permission from the court to give notice of the proceedings. To obtain this permission, the claimant must prove three things:
1. That there is strong evidence of a serious claim which is the subject of the litigation.
2. That the United Kingdom is the appropriate forum for adjudicating the claim.
3. That the claim falls within one of the grounds of the Rules of Judicial Procedure (PD6B – CPR). In relation to this issue, there is a gateway to UK jurisdiction in the following cases (paragraph 9 of Practice Directions 6B of the Rules of Judicial Procedure):
a. Where the damage was or will be suffered within the jurisdiction.
b. Where the damage results from an act committed, or likely to be committed, within the jurisdiction.
c. Where the claim is governed by the laws of England and Wales.
The UK Supreme Court has given a broad interpretation of the concept of damages in personal injury claims. Essentially, the line of jurisprudence is that damages arise in the jurisdiction where they are felt, so that the after-effects, loss of income and other damages associated with an accident are felt in the claimant’s home jurisdiction once the claimant returns home, leaving some scope for claimants to bring serious injury claims on UK soil.
As to the question of England/Wales being the appropriate forum, UK case law takes into consideration that the case be tried in the jurisdiction best suited to the interests of the parties and the ends of justice. In personal injury cases, English courts tend to give plaintiffs leeway, on the understanding that they prefer to be heard in their local courts and language, provided that the grounds of law to be applied are straightforward.
What is the law applicable to claims?
On this question there is no doubt. Prior to the UK’s exit from the European Union, Regulation 864/2007 (Rome II Regulation) applied until 23:00 on 31 December 2020, as we have already seen for the Brussels I Bis Regulation. After that time, the reciprocal application of the Regulation ceased, but it was incorporated as UK law retained and amended by the Jurisdiction, Judgments and Applicable Law Act. In practice, the consequence remains the same, and that is that tort litigation will always be governed by the law of the place of the tort. Thus, disputes arising out of accidents occurring in Spain will always be settled under Spanish law.
Following the United Kingdom’s exit from the European Union, EU law has ceased to form part of the British legal system. In relation to claims arising from accidents and injuries suffered in Spain by British citizens, it will always be possible to bring the claim before the Spanish courts. The jurisdiction of the British courts will depend on the authorisation given in each specific case by the British judge, when the claimant accredits compliance with the requirements of the aforementioned rules of judicial procedure. In any case, the law applicable to the resolution of the dispute will always be the law of the place where the damage occurred.
From the Insurance Law Department of Belzuz Abogados, (Insuralex Spain) we are at your disposal to analyse and defend your problem in matters of civil liability and insurance in the most professional and efficient manner.