In many cases involving an accident abroad, it is often difficult for the parties to agree on how to prove the applicable foreign law.
As a reminder, Article 15 of Rome II defines the scope of the applicable law, which includes, among other things, limitation, the conditions and extent of liability, the existence, the nature and the assessment of the damage or the remedy sought. Foreign law must be invoked and proven by means of independent expert reports, which must therefore cover these substantive issues.
However, each jurisdiction operates differently as to how this evidence is prepared and there may be disagreement as to how foreign law should be proved in the English jurisdiction.
In one of our recent cases, a claimant was seeking compensation (in an English court) for personal injury following an accident in France. The claimant sought to rely on the report of a French law expert, as required. However, the claimant did not provide a French medico-legal report to his expert and this created difficulty.
In France, for any case involving personal injury compensation, the report of a medico-legal expert is automatically obtained in order to apply the French personal injury assessment tool which takes the form of a non-exhaustive classification of the different heads of loss: the Dintilhac Nomenclature. The Nomenclature distinguishes between two main categories, financial losses and non-financial losses, which are themselves subdivided into two sub-categories, temporary losses and permanent losses.
In order to identify and value the heads of loss resulting from the medical consequences of an accident, the court shall refer to the medico-legal report, which is necessary to determine the following crucial elements in particular
The medico-legal expert specialises in bodily injury and has received special training to identify and assess the extent of losses in accordance with the Nomenclature. The grades, scales and percentages of the Dintilhac Nomenclature are medico-legal notions that can only be accurately set by an expert qualified in France in the field of legal compensation for personal injury.
When it comes to proving French law before the English courts, we have always stressed in our cases that an expert in French law should automatically be allowed to rely on a medico-legal report in order to assess the damages accurately on the basis of the medico-legal conclusions and according to the Dintilhac nomenclature.
This report will generally be a desktop report based solely on the conclusions of the English medical experts, so it does not be considered as additional medical evidence. The French experts will then, on the basis of the medico-legal conclusions, proceed to the assessment of the quantum.
English courts may not be familiar with this system, but in our case mentioned above, the procedural judge accepted our position with respect to French law and medico-legal evidence. In his (oral) judgment, he made some interesting remarks:
“I have to say, I am in favour of the report the Defendant is seeking. It seems to me that the French system is on this particular point more accurate than English. The English system is swamped by medical reports, very difficult to assess in terms of timescales. Seems to me the evidence might be obtained in this report would be of assistance to the court rather than complicating matters. I would find a report of that nature very helpful indeed.
English court still has to at the end of the day apply its own procedure, it has to assimilate the evidence. I don’t see how it can apply the French law if it doesn’t have the basic elements of the French procedure, and the procedure is in my view better suited than the English system. The tool the court will be presented with is the tool that will be required. It will then be faced with evidence already garnered and obtained and faced with the assessment that would occur on French basis. French basis must carry the greater weight”.
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