QB 53 (QB)
The Claimant sustained catastrophic injury in a road traffic accident in France. Liability was not in issue, judgment had been entered and it was common ground that, by virtue of Rome II, French law applied to the assessment of damages. The Claimant wished to rely on expert evidence from a panel of expert witnesses of the kind that might conventionally be instructed in an English case where catastrophic injuries had been sustained. The Defendant French insurer (sued direct in the English Court) argued that the Claimant was restricted to the expert evidence that would usually be placed before a French Court so that, so far as possible, the English Court would be informed by French practice in the assessment of damages. On a preliminary issue, the English Court was asked to determine whether the issue of which expert evidence the court should order fell to be determined: (a) by reference to the law of the forum (English Law) on the basis that this is an issue of evidence and procedure within Article 1.3 of Rome II; or (b) by reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II. It was held that the approach suggested by the Claimant was the correct one and the issue of which expert evidence the court should order, being an issue of evidence and procedure, fell to be determined by reference to the law of the forum (that is, by reference to English Law). Matthew Chapman, led by Robert Weir QC, appeared for the Claimant.