Legal Update
19 November 2018

Barrister, Bryan-Patterson-Whitaker, considers cross-border litigation in RTA Claims (and how the Polish Civil Code might help you avoid a Nemeti type strike out)

Those practitioners familiar with RTA claims will be aware of the of the European Communities (Rights Against Insurers) Regulations 2002 (“the Regulations”). Essentially the Regulations provide a direct cause of action against the insurer, thus avoiding the need to sue the tortfeasor at all. There are however limitations. The Regulations only apply to a claimant who is a resident of an EU member state or of Iceland, Norway or Liechtenstein. They relate to accidents which occur on a road or other public place in the UK 'caused by, or arising out of, the use of any insured vehicle'. 'Insured' for this purpose means that a policy is in force which satisfies section 145 of the Road Traffic Act 1988. 'Vehicle' is defined to mean a motor vehicle or trailer which is registered, or normally based, in the UK and which does not run on rails. What the Regulations certainly do not cover is the scenario where a negligently driven Polish lorry causes injury to a UK national in Yorkshire. Any such claim brought on those facts is liable to strike out under CPR 3.4(2)(a). Such were the facts and application facing the claimant in a case I was instructed on recently. One might think that the matter is easily remedied by applying to substitute the insurer for the tortfeasor under CPR 19.5. However, where limitation has passed, that is likely to prove impossible. The original claim will have been pleaded as a claim for an indemnity under the Regulations rather than in negligence. The Court would therefore have no power to allow the substitution because the ‘claim’ for the purposes of CPR 19.5 would be wholly different in character. See in particular Nemeti v Sabre Insurance Company [2013] EWCA Civ 1555 for an object lesson in how things can and do go badly wrong if appropriate care is not taken in pleadings. However, CPR 17.4 allows a party to substitute a cause of action (as opposed to a party) ‘out of time’ where the claim arises out of the same facts or substantially the same facts as the original ‘in time’ claim. In these circumstances European law can, potentially, assist. The Rome II Regulations 864/2007 took direct effect in the UK on the 11th January 2009 without the need for domestic implementing legislation. Article 18 provides:-  “The person having suffered damage may bring his or her claim directly against the insurer of the person liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides”. In the common scenario of a claimant facing strike out the law applicable to the non-contractual obligation will be of no assistance whatsoever (because the UK Regulations do not so provide). However, the law applicable to the insurance contract may come to the rescue. In this case it did. Article 822(4) of the Polish Civil Code states:- ‘A person entitled to compensation for a contingency covered by a civil-liability insurance policy may bring a claim directly against the insurer.’ So for a claimant facing a Nemeti type strike out, this can be (and was) a neat workaround. Strike out avoided. Amendment under CPR 17.4 permitted. The direct claim against the insurer lives on.   Cross-border claims should nearly always include the tortfeasor as a defendant as a matter of course. Nevertheless, the law is complicated and scattered across Europe. One therefore still sees many claims being wrongly pleaded. Solicitors acting for foreign insurers are certainly alive to the technicalities. I have come across a number of cases where claimants have been positively and very courteously invited to solely sue the insurer (presumably in the hope of setting a trap for the unwary litigator). So whilst the lesson is to plead the case properly in the first place, it is worth remembering that the claim may still be salvageable, even if it wasn’t.   Bryan Patterson-Whitaker