Wall of evidence

Posted by Daniel Scognamiglio on
An interesting judgement was handed down on Friday by the High Court as to the evidence to be used in claims issued in England and Wales where foreign damages are to be assessed.

Very often, claims can be disposed off with a simple report from a foreign expert, who may wish to examine the claimant in a personal injury claim. One would gather evidence in England, find the expert and provide instruction.

Wall v Mutuelle De Poitiers was heard in the middle of January. Following a significant injury in France, Mr Wall pursued the French insurer in the Courts in England. Following this procedure, the English court would need to assess liability and quantum in accordance with French law. This is in accordance with Rome II and was not disputed. During any piece of litigation, a claim can be reviewed on several occasions by the Court. This is known as a Case Management Conference (CMC). During the CMC, the parties could not agree as to the experts required to assist the Court assess the value of the claim. The Defendant argued that it should be a single (or perhaps one or two) French expert to assess the whole Claim. The Claimant argued that there would need to be a panoply of experts so as to assess the full loss.

At this stage, it is worth taking a step back and noting the difference between the judicial process in England (common law) and France (civil law) which was eloquently summarised in the Judgement:

  • The adversarial procedures in common law states are designed to assist the court to arrive at the truth. But they require more work to be done by litigants and their lawyers (often with correspondingly less work to be done by the judge) than is required under most civil law inquisitorial systems. The result is that the direct costs of litigation which have to be borne by the parties are much higher in the common law states. This is so, even when the comparison is between a civil law and a common law state where rates of remuneration charged by lawyers are at comparable levels. On the other hand, in the common law states fewer judges are required, and fewer cases are actually tried, instead of being settled. These facts may help to keep down the cost to the common law states of providing for the administration of justice. Having regard to the differences of procedure, it is not surprising that outcomes are different, even in those cases where there is no significant difference between the provisions of the substantive laws of the states in question.

In this case, French lawyers had prepared evidence as to the role of French medical experts in French proceedings, and had referred to the French Civil Code:

  • A single expert is appointed unless the judge considers it necessary to appoint more than one (Art 264). A person who is appointed an expert may obtain the opinion of another expert, but only in a specialism which is different from his own (Art 278). An expert whose opinion is sought under Art 278 is known as a ‘sapiteur’. In practice this makes it possible for there to be one expert who directs the work and produces a single comprehensive report, which includes the opinions of the sapiteurs. For example, when the victim’s accommodation requires adaptation, the medical expert will appoint an architect to give an opinion on the works in question. Another example given is where the victim has suffered serious brain damage and a specialist opinion is required on that.

The expert would then hold hearings, of which notice must be given to the parties. A sample of a French report was considered by the Court, although the judge did not derive any assistance from it. As one would expect of a French report, it assessed the losses on a scale of 0 to 7 and damages would then be assessed according to each scale.

The English procedural rules "…does not provide for the court to give permission to a single expert to convey to the court opinions of other experts whom s/he has consulted on matters which are not within the single expert’s expertise. There is no evidence before this court as to what level of damages would actually be awarded by a French court if a French court were seised of the present case. Without such evidence there is no means by which this court, either today, or at any subsequent hearing, could endeavour to reflect that level of damages."

Quoting from Dicey and Morris 15th Edn "…the English courts should endeavour to consider the rules of the applicable law together with relevant judicial practices and guidelines as to their application, so as to endeavour to apply the law of damages to reflect, as accurately as possible, the level of damages that would actually be awarded in the courts of the country whose law is applicable."

The Court decided that the expert evidence was a matter for the English Court as it was a matter of "evidence and procedure". It seems as though the Court will still need assistance from a French expert so as to assess the claim – which will need to be done in accordance with French Law. How the English Court gets to that point is however a matter of English law and in this case, the Court is allowing a panoply of experts.

As I write this, there is an opportunity to appeal the decision.

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Daniel leads our travel insurance team. He is a specialist in multi-jurisdictional disputes, travel insurance litigation and tour operator liability and is qualified as a solicitor in England and Attorney at Law (non-practising) New York.

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