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DHV v Motor Insurers’ Bureau (Rev1) [2025] EWHC 2002 (KB) is an interesting case to discuss statutory construction of EU law, specifically (and this is mostly how it ended up on the blog) with respect to Rome II’s ‘evidence and procedure’ carve-out and the impact of its recital 33 on same.
Those interested in the use of experts in proceedings generally, may want to read the first 80 or so paras of the judgment as well, for the account by Dias J of the various experts and their credibility is most informative, as is [45]
Two accident reconstruction experts gave live evidence: …..The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification. (emphasis added)
Now, to the conflict of laws issues at hand:
The judgment on this issue kicks off with general observations on determining applicable law, and the precise implications of ‘foreign law as fact’ with [82] reference ia to Lambert v MIB as well [83 ff] as how exactly that foreign law needs to be applied: entirely as it has been done by the relevant foreign courts (possibly all the way up to their supreme court), or, if their is evidence (provided by the experts) that these foreign courts have not actually properly applied their own laws, by the English court’s ‘proper’ reading of those laws.
[85] ff then discuss Rome II’s ‘evidence and procedure’ carve-out, which I review in the handbook with reference to all authorities reviewed in current case. Pro memoria, relevant statutory provisions are
Article 1(3)
This Regulation shall not apply to evidence and procedure,
without prejudice to Articles 21 and 22.
Note ! this is a proper and entire carve-out altogether from the scope of the Regulation, different from Article 1(2) which excludes certain issues which as a result of Article 1(1) are within its scope, but are then excepted.
(Articles 21 and 22 are of no relevance to the case at issue; see on those Articles eg Quilombola, X v Y (parental responsibility) or X v Y ( monies viz real estate transaction).
Article 15 ‘Scope of the law applicable’
Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any division of liability c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained personally;
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.
Of further relevance is recital 33
According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.
Wall v Mutuelle of course is the core reference employed although as I have said before, it is wrong to suggest such as the judge does here [87] that “While [the evidence and procedure carve-out] is a derogation from article 15, it must be narrowly construed”.
A first bone of contention is whether Rome II applies at all to the case. It’s probably me who does not quite see how that argument is made. The question in the end is not all that relevant given the answer to the second issue: whether recital 33 has a substantive impact on the case. The judge held it does not.
I have not recently looked at Recital 33, nor done a detailed study of its travaux. That word in fact gives the recital too much credit: a recital can be part of the travaux of a statutory provision. It does not have its own travaux, given that recitals plainly are not EU statutory law. In the case of current recital, it was a plaster to sooth the European Parliament’s failure to introduce what would have been in effect a harmonisation of substantive law on full compensation (the restitutio in integrum principle; the judge here refers ia to prof Dickinson’s discussion of the recital).
Dias J also discusses Halsbury on EU statutory law as a general background to the application of EU law. He is wrong in my opinion to [114] suggest that “the current national rules on compensation” as used in recital 33, are a reference to the applicable lex causae (which he incompletely refers to as the ‘lex loci’: ‘damni’ should be added to that). ‘The current national rules’ refers to ius commune as eg the French version shows: ‘En vertu des règles nationales existantes en matière d’indemnisation des victimes d’accidents de la circulation routière.’
Conclusion [127]: recital 33 is not a legal rule. At the most it may be of relevance in an A4(3) ‘more closely connected’ scenario – which is not the case here.
A case of interest for Rome II. Another example, too, of where continental courts in all likelihood would not have allowed the arguments to run quite to the intensity they were argued here (contributing of course to the costs of proceedings in English courts).
Geert.