Nicholls v Mapfre. The Courtroom of Attraction takes an ‘intertwinedness’ strategy to “proof and process” in Rome II. – Tech Cyber Internet

Nicholls & Anor v Mapfre Spain Insurance coverage and Reinsurance Firm SA [2024] EWCA Civ 718 is the unsuccessful attraction towards Sedgwick v Mapfre Spain Insurance coverage and Reinsurance Firm S.A. [2022] EWHC 2704 (KB) which I focus on right here and towards Nicholls v Mapfre and Sonia Woodward v Mapfre [2023] EWHC 1031 (KB) which I focus on right here.

The case centres across the distinction within the Rome II Regulation between issues of process on the one hand and substantive legislation however, for the needs of personal worldwide legislation and the interpretation of A1 and 15 Rome II.

Within the appeals Mapfre contend that the curiosity payable underneath Spanish Insurance coverage Contract Act Act 50/1980 is penal in nature as a result of it rises to twenty per cent each year within the third 12 months of utility, is payable as a matter of Spanish procedural legislation to encourage early settlement of disputes by insurance coverage corporations, and is a matter of process which isn’t coated by Rome II. Which means that of their view the legal guidelines of E&W apply to the evaluation and award of curiosity. Mapfre additionally contend that it’s incorrect to make use of the statutory discretion underneath both part 35A of the (English) Senior Courts Act or part 69 of the County Courts Act to permit Spanish penal curiosity in by the again door when it pertains to a special procedural setting to which completely different procedural guidelines apply, and the place the legal guidelines of England and Wales comprise inside Half 36 of the Civil Process Guidelines procedural provisions to encourage the early settlement of disputes.

Respondents contend that Act 50/1980 is a matter of substantive legislation as a result of it’s an integral a part of the best way during which damages and curiosity are assessed in proceedings in Spain for private accidents in actions towards insurers. Subsequently it must be ordered to be paid as Spanish legislation governs the motion. In its place, the respondents additionally contend that if Act 50/1980 is a matter of process for the needs of Rome II, then the entire judges have been proper, and made no error within the train of their discretion, in ordering the cost of an equal price of curiosity underneath Act 50/1980 as a matter of discretion underneath part 35A of the Senior Courts Act or part 69 of the County Courts Act.

Dingemans LJ referred to Wall, Lazarand You might be working as most related authority. I agree along with his view [33] which I’ve expressed earlier than (eg within the Handbook, 4th ed, 4.83), that the the proof and process carve-out needn’t be given both a slender, strict, or broad interpretation. It merely must be utilized as meant. [34] he argues

With the intention to perform the duty of figuring out whether or not the curiosity payable underneath article 20.4 of Act 50/1980 is a matter of process, it’s essential to undertake a consideration of Act 50/1980. That’s not to find whether or not the availability is taken into account to be substantive legislation or a matter of process underneath both Spanish legislation or the legal guidelines of England and Wales, as a result of what’s a matter of process for the needs of article 1(3) of Rome II is an autonomous idea underneath Rome II. The aim of enterprise a consideration of Act 50/1980 is to find out whether or not the problem of curiosity underneath that provision is so “intertwined” with the evaluation of damages, which is a matter of substantive legislation underneath Rome II, that curiosity payable underneath Act 50/1980 must be thought of a matter of substantive legislation and never a matter of process.” (emphasis added)

The take a look at put ahead by the Courtroom of Attraction due to this fact would appear to be the depth of intertwinedness of the problem at stake, with one of many parts which might be clearly listed in A15’s ‘scope of the legislation relevant’ (right here: “evaluation of injury”). (Observe Stuart-Smith LJ’s concurrence [79] not to have a look at the problem by an “overly-Anglo/Welsh prism”).

This leads right here [58] to the conclusion that

the curiosity payable underneath Act 50/1980 is just not a matter of process for the needs of article 1(3) of Rome II, and is ruled by the legislation relevant to the non-contractual obligation, particularly the legislation of Spain.

[68] ff then discusses subrogation underneath A19 Rome II with reference [70] to related CJEU authority.

Of notice.

Geert.

EU Personal Worldwide Legislation, 4th ed 2024, ia Heading 4.8.

https://x.com/GAVClaw/standing/1806583047313121464