Neutral Citation Number: [2010] EWHC 1941 (QB)
Case No: HQ09X04727
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2010

Before:

THE HONOURABLE MRS JUSTICE SLADE DBE
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Between:

	Mr Deo Antoine Homawoo	Claimant	
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	(1) GMF Assurance SA
(2) Ms Adeline Verbeke
(3) Mr Stephane Pecqueur	Defendants	

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James Dingemans QC and Katherine Deal (instructed by Irwin Mitchell) for the Claimant
Pierre Janusz (instructed by Pierre Thomas and Partners) for the First Defendant

Hearing dates: 25th May 2010
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Judgment

Mrs Justice Slade: 
1.	Pursuant to an order made by District Judge Baddeley on 12th October 2009 as varied by an order made by Master Fontaine on 10th March 2010 the personal injury claim by Deo Antoine Homawoo came before me for determination of the following preliminary issue:
“Whether Regulation (EC) 864/2007 ‘Rome II’ applies to the Claimant’s claim.”
2.	Rome II introduced a new uniform EU wide regime for determining the law applicable to non-contractual obligations. The preliminary issue raises what has been described as the temporal scope of Rome II. The Claimant contends that Rome II does not apply to his claim. The insurer, GMF Assurance SA, contends that it does. 
3.	The claim arose out of a road traffic accident which occurred in France on 29th August 2007 in which the Claimant was injured by a vehicle being driven by the First Defendant’s insured, the Third Defendant. Proceedings were commenced by the issue of a claim form on 8th January 2009 in the Birmingham District Registry. 
4.	The claim form was issued naming three Defendants, the insurer, the driver and the owner of the car involved in the accident. In the event it was only served on the insurer and the claim proceeds against the First Defendant alone, referred to in this judgment as ‘the Defendant’. The Claimant is able to bring his claim against the Defendant pursuant to Articles 9(1)(b) and 11(2) of the Judgments Regulation (EC) 44/2001.
5.	By order of Master Fontaine dated 10th March 2010 judgment was entered for the Claimant for damages to be assessed. 
6.	Whether the Private International Law (Miscellaneous Provisions) Act 1995 (‘the 1995 Act’) or Rome II applies to the obligations of the Defendant arising from the accident, the parties are agreed that French law as the place of the accident would under Section 11 of the 1995 Act or Article 4 of Rome II govern liability and categories of recoverable damages. Lord Hoffman observed in Harding v Wealands [2006] UKHL 32. At page 13 paragraph 24:
“The identification of actionable damage is an integral part of the rules which determine liability.”
7.	Quantification of loss is regarded under English law as a matter of procedure for the reason given in Harding v Wealands. If Rome II did not apply to the Claimant’s claim, since Section 14(3)(b) of the 1995 Act provides that questions of procedure are to be decided by the law of the forum, English law would apply to the assessment of damages. Article 15 of Rome II provides:
“The law applicable to non-contractual obligations under this Regulation shall govern in particular:
…
(c) the existence, the nature and the assessment of damage or the remedy claimed”.
Accordingly if Rome II applies to the Claimant’s claim, French law would govern the assessment of damages. 
European Material
8.	Article 254 of the EC Treaty (now Article 297(2) post-Treaty of Lisbon) provides that regulations “shall enter into force on the date specified in them or, in the absence thereof, on the 20th day following that of their publication.” ‘Publication’ refers to publication in the Official Journal.
Rome II: The final version
9.	Rome II was published in the Official Journal on 31st July 2007. 
10.	The preamble to Rome II states:
“(14) The requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice.
(16) Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage.”
11.	The Regulation provides:
“Article 29
List of conventions
1. By 11 July 2008, Member States shall notify the Commission of the conventions referred to in Article 28(1). After that date, Member States shall notify the Commission of all denunciations of such conventions.
…
Article 31
Application in time
This Regulation shall apply to events giving rise to damage which occur after its entry into force.
…
Article 32
Date of application
This Regulation shall apply from 11 January 2009, except for Article 29, which shall apply from 11 July 2008.”
12.	Some legislative history
A proposal for Rome II 2003/0168 (COD) provided in Article 27:
“Article 27
Entry into force and application in time
This Regulation shall enter into force on 1 January 2005.
It shall apply to non-contractual obligations arising out of acts occurring after its entry into force.”
13.	On 22nd December 2005 a revised text for Rome II separated out ‘Application in time’ and ‘Entry into force’. 
“Article 27 – Application in time
This Regulation shall apply to damage or harm occurring after the entry into force of this Regulation.
Article 27A – Entry into force
This Regulation shall enter into force on […].”
14.	A text for Rome II revised in light of discussions during the Austrian Presidency was produced on 16th March 2006. Articles 27 and 27A provided:
“Article 27 – Application in time
This Regulation shall apply to events giving rise to damage (…) occurring after the entry into force of this Regulation.
Article 27A – Entry into force
1. This Regulation shall enter into force [9 months after its adoption].
2. This Regulation shall apply from [15 months after its adoption,] except for Article 26, which shall apply 9 months after the adoption of the Regulation.
3. This Regulation shall be binding in its entirety and directly applicable in all Member States in accordance with the Treaty establishing the European Community.”
A note of proceedings dated 3rd May 2006 of the Committee of Civil Matters (Rome II) of 27th and 28th March 2006 recorded of Article 27 and 27A: 
“Several delegates considered that the distinction between the date of entry into force and the date of application was confusing. The Presidency pointed out that the date of entry into force brought along obligations for Member States, which would have to be fulfilled prior to application (e.g. notification of Conventions).
A few delegations considered that 15 months was too short and suggested 18 or even 24 months for application.”
A text of 10th April 2006 provided:
“Article 27A – Entry into force
This Regulation shall apply from (…) [18 months after its adoption], except for Article 26, which shall apply (…) [12 months after its adoption].”
This wording was repeated in a draft of 21st April 2006 but with the heading ‘Date of application’ substituted for ‘Entry into force’ in Article 27A. The wording of Regulations 31 and 32 of Rome II is not materially different from the drafts of 10th and 21st April 2006. 
Rome I
15.	Regulation EC No. 593/2008 of 17th June 2008 on the law applicable to contractual obligations (Rome I) provides by Articles 28 and 29:
“Article 28
Application in time
This Regulation shall apply to contracts concluded after 17 December 2009.
Article 29
Entry into force and application
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 17 December 2009 except for Article 26 which shall apply from 17 June 2009.”

The contentions of the parties
16.	Mr Dingemans QC with Katherine Deal for the Claimant and Mr Janusz for the Defendant agree that there is no judicial decision on the temporal scope of Rome II. I was told that a reference was under consideration in County Court proceedings in Jelfs v Axa France IARD SA but that no reference was drafted. On enquiry by the Claimant’s representatives I was told that there is no outstanding reference to the European Court of Justice (‘ECJ’) on this point. Counsel referred to a number of academic articles. They may reach different conclusions but all are agreed that the temporal scope of Rome II is uncertain. 
The Claimant
17.	Mr Dingemans QC contended that Rome II does not apply to events before 11th January 2009. He submitted that 11th January 2009 referred to in Article 32 should be regarded as the date specified for the entry into force of Rome II. This would accord with the principles of Rome II: the need for ‘uniform rules’ which improve ‘the predictability of the outcome of litigation’. The only provisions of the Regulation which applied before January 2009 were Articles 28 and 29. 
18.	Alexander Bücken (2009) IP Rax, Vol 2 page 125 advances the proposition that the prevailing opinion is that the Regulation enters into force as from 11th January 2009. He pointed out that the effective date was ‘expressly ruled’ in the first drafts of Rome II but this ruling was dropped in the course of the legislative process when an additional provision on the commencement of application of the Regulation (corresponding to Article 32 of Rome II) was introduced. Bücken writes at III:
“The reason for this abandonment cannot be found in the materials, so that the supposition of an editing mistake is more likely than a conscious loophole.”
19.	Dr Xandra Kramer in an article (2008) 26 Nederlands International Privaatrecht 414 points out at paragraphs 3.3 that Article 31 together with Article 32 seem to result in Rome II applying to events occurring after 20th August 2007 but that a court will only apply these rules as of 11th January 2009. Dr Kramer writes:
“In my view, the Rome II Regulation should not be given a seemingly ‘retrospective’ effect and, in view of the requirements of foreseeability and legal certainty, it should not be mandatory in the situation that the national conflict rules in force before 11 January 2009 lead to a different result. This corresponds to the situation under the Rome I Regulation, where it states that it shall apply to contracts concluded after 17 December 2009, being the date of its application.”
20.	Mr Dingemans also placed  reliance on an article by Paul Stanley in European Briefing (2008) Solicitors’ Journal Vol 152/46 page 15 in which he asks:
“Is it not more likely that the drafting was imperfect, and that ‘entry into force’ was intended (in Art 31) to refer to the date specified in Art 32 as the date for application of the relevant parts of the regulation?”
21.	Garciamartin Alferez (2007) in an article in European Legal Forum 3-2007 I-77 page I-81 proposed that Rome II applies to damage occurring after 11th January 2009. In footnote 17 Mr Alferez observed:
“Note that Article 31 refers to the ‘entry into force’ of the Regulation while Article 32 refers to ‘date of application’. In principle, both concepts mean the same (unlike in Article 33 of the Regulation 805/2004).”
22.	Mr Dingemans drew attention to the judgment of the German Federal Court of Justice of 9th July 2009 in Xa ZR 19/08. At paragraph 17 the Court observed that Rome II: 
“…is to be applied to events causing damage which have occurred since it came into force on 11 January 2009 (Articles 1, 31 and 32 Rome II Regulation)…”
He rightly observed that this was a bold assertion not supported by any reasoning.
23.	Mr Dingemans QC acknowledged that the wording of Articles 31 and 32 is a mess. The legislative history illustrates this. However he contended that according to the Dutch, Spanish and Romanian language versions, Rome II applies to events, meaning in this context accidents, occurring on or before 11th January 2009.
24.	Mr Dingemans submitted that the only way to give effect to the purpose of achieving legal certainty is to have a single date from which Rome II applies to a non-contractual claim in any Member State. Further, it cannot reasonably be concluded that Rome II should have entered into force on a different and considerably earlier date than its date of application. Further, that date must be that of the occurrence of the event giving rise to damage. If this were not so the law governing assessment of damages in claims arising from accidents occurring in the period between 20th August 2007 and 10th January 2009  inclusive would change if the claims were judicially determined on or after 11th January 2009. 
25.	Mr Dingemans submitted that the proposition that Rome II applies to events occurring on or after 11th January 2009 would:
i)	provide uniformity;
ii)	certainty;
iii)	achieve a broad and purposive interpretation of Articles 31 and 32;
iv)	achieve consistency. There was no other Regulation whose potential application was dependant on a range of circumstances;
v)	accord with existing interpretations of texts of three countries and the judgment of the German Federal Court in Xa ZR 19/08 of 9th July 2009.  
26.	If his contention that Rome II applies to events occurring on or after 11th January 2009 were not to be accepted, Mr Dingemans contended that it only applies to proceedings commenced on or after that date. 
27.	Any other conclusion would lead to the surprising situation that the law applicable to the assessment of a Claimant’s damages could alter midway through a claim. Claims arising out of the same accident could have different laws applying to the assessment of damages depending on an individual court’s listing arrangements. A successful appeal would introduce further change. There would be significant difficulties case managing and settling claims since the parties would not know whether assessment of damages was to be on English or foreign principles. 
28.	Mr Dingemans submitted that the application of Rome II to claims issued on or after 11th January 2009 is the approach suggested by most English commentators such as McParland in the Journal of Personal Injury Law 3/2008 at page 221 and Saggerson in the International Travel Law Journal 4/2008 at page 161. This was also the view taken by the editors of the 2nd Supplement to the 14th Edition of Dicey, Morris & Collins on the Conflict of Laws at 35-168. However the editors of the 3rd Supplement to the 14th Edition took the view that Rome II applied to claims determined by a court on or after 11th January 2009. This was the view taken by Mr Dickinson in a publication on the Rome II Regulation (2008) at 3-315 to 3-324. Mr Dickinson was a member of the Editorial board which produced the 3rd Supplement to the 14th Edition of Dicey Morris & Collins.
29.	Mr Dickinson considered which of four different points in time was the time at which the Regulation falls to be ‘applied’ for the purposes of Articles 31 and 32. The first was:
“1. The Regulation ‘applies’ only at the point at which the Member State court or tribunal finally determines the law applicable to a non-contractual obligation.”
Mr Dickinson wrote at paragraph 3.322:
“…the first solution seems preferable. On this view, the Regulation will apply to any situation in which a Member State finally determines on or after 11 January 2009 (whether following a trial or as a preliminary issue) the law applicable to a non-contractual obligation, provided that the event giving rise to damage occurred on or after 20 August 2007.”
30.	Mr Dickinson recognised that this solution was open to some manipulation by the parties to determine the applicable law. However he considered that: 
“the opportunities for securing a tactical advantage would appear greater if the date of proceedings is treated as the relevant date for application of the Regulation, as it would increase the parties’ ability to control the applicable law by submitting a claim (including in the case of a person claimed to be liable, for negative declaratory relief) just before or just after the cut-off date.”
31.	Mr Dingemans submitted that an interpretation of Articles 31 and 32 which would lead to a determination of the law applicable to the assessment of damages by reference to the determination of a claim by a court would lead to considerable uncertainty, unpredictability and unfairness in practice. 
The Defendant
32.	Mr Janusz for the Defendant submitted that Rome II applies to the determination by a court on or after 11th January 2009 of liability arising from events occurring on or after the coming into force of the Regulation. Since Rome II was published in the Official Journal of the European Union on 31st July 2007, in the absence of a specified date for entry into force, the Regulation entered into force on 20th August 2007 in accordance with Article 254(1) of the EC Treaty then in force. Mr Janusz submitted that due recognition must be given to the two concepts referred to in the Regulation: ‘entry into force’ and ‘application’. The contentions on behalf of the Claimant fail to distinguish between the two.
33.	The Claimant’s accident occurred on 29th August 2007 which was after the Regulation entered into force. Since a court will determine the assessment of his damages after 11th January 2009, Mr Janusz submitted that Rome II applies. 
34.	Mr Janusz contended that to interpret Articles 31 and 32 to achieve the result contended for by the Claimant that Rome II only applies to events occurring on or after 11th January 2009, would require either reading ‘entry into force’ in Article 31 as ‘date of application’ or reading ‘date of application’ in Article 32 as ‘entry into force’.
35.	It was submitted on behalf of the Defendant that the Claimant’s case appeared to be that the reference to ‘entry into force’ in Article 31 was made in error and that it should be ‘date of application’. It would be wholly inappropriate to base an interpretation on a finding that there had been an error of this nature. 
36.	The Dutch, Romanian and Spanish language versions of Articles 31 and 32 relied upon on behalf of the Claimant to show that Rome II applies to events on or after 11th January 2009 should be set against the larger number consistent with the English language version. To rely on the minority as providing the correct interpretation would be the tail wagging the dog. As for an argument that Rome II should be construed harmoniously with Rome I which applied to contracts entered into after the application date not the date the Regulation came into force, Mr Janusz pointed out that if the legislators had wanted to change the effect of Articles 31 and 32 of Rome II to provide that it applies to events on or after 11th January 2009 there would have been an opportunity to do so before that date. Rome I cannot be validly used to interpret Rome II. 
37.	Mr Janusz contended that the drafting history of Rome II demonstrates that the draughtsmen were well aware of the distinction between ‘entry into force’ and ‘application’. He contended that this is illustrated by the change in the heading of Article 27A, now Article 32, from ‘entry into force’ in the draft of 16th March 2006 to ‘date of application’ in the draft of 21st April 2006. Concern had been expressed at a meeting of the committee on Rome II on 27th and 28th March 2006 that the distinction between the date of entry into force and the date of application was confusing. Mr Janusz submitted that the change in wording was intentional and that it would be wrong to assume that the choice of the different terms was unintentional. It is impossible to read entry into force as taking place on 11th January 2009. He asked ‘how can one look at Article 32 as if there had been an accidental omission of a specific date for entry into force against the clear difference in the two terms in the legislative history?’ 
38.	Mr Janusz took issue with the view expressed in the articles relied upon on behalf of the Claimant. He contended that no reasoning was advanced to support the proposition in Kramer at paragraph 3.3 suggesting that as in Rome I, Rome II should apply to events occurring on or after the date of application of the Regulation, 11th January 2009. 
39.	Mr Janusz contended that the submission that Rome II does not apply to proceedings commenced before 11th January 2009 would involve reading words into Article 32. There is no principle of law supporting a contention that the date of issue of proceedings is of importance in this context. ‘Shall apply’ means shall apply to the courts when the issue comes before the courts. Accordingly as from 11th January 2009, when a court is required to make a decision involving issues governed by Rome II it will have to apply those provisions. 
40.	Mr Janusz accepted that there was some slight support for the Claimant’s contention that Rome II was not applicable to proceedings commenced before 11th January 2009 in the second Supplement to the 14th Edition of Dicey, Morris & Collins on the Conflict of Laws. As pointed out by Mr Dingemans this does not appear in the latest, 3rd, Supplement. It has been replaced by the interpretation contended for by the Defendant. 
Discussion and Conclusion
41.	The preliminary issue for determination raises the question of the correct interpretation of Articles 31 and 32 of Rome II. In stark terms Mr Dingemans QC and Miss Deal on behalf of the Claimant contend that ‘entry into force’ in Article 31 is to be read as ‘date of application’ so that Rome II applies to events giving rise to damage which occur after the date of application of the Regulation, 11th January 2009. Alternatively that ‘shall apply’ in Article 32 is to be read as ‘shall apply to proceedings commenced’ so that Rome II applies to proceedings commenced on or after 11th January 2009 in respect of events giving rise to damage occurring on or after 20th August 2007. Mr Janusz for the Defendant contends that ‘shall apply’ in Article 32 means ‘shall apply to the determination by a court of issues governed by Rome II’. 
42.	For reasons explained below I express no concluded view on the preliminary issue of:
“Whether Regulation (EC) 864/2007, ‘Rome II’, applies to the Claimant’s claim.”
What follows are my preliminary observations. 
43.	I incline to the view that there is no warrant for interpreting ‘shall apply from’ in Article 32 as either ‘shall apply to proceedings commenced’ as contended on behalf of the Claimant or as ‘shall apply to the determination by a court’ as contended on behalf of the Defendant. 
44.	The wording of the Article contains no reference to the commencement or determination of legal proceedings. There is no reason why Rome II should only apply where legal proceedings have been commenced or are determined by a court. 
45.	Article 29 ‘shall apply’ from 11th July 2008. That Article imposes obligations but does not contemplate the issuing of court proceedings. There is no reason to construe differently the same words in one regulation. 
46.	Where a tort is alleged, the parties will frequently seek to reach a settlement before commencing proceedings. The pre-action protocol for Personal Injury encourages this. Parties may engage in mediation. They need to know whether Rome II applies to the calculation of damages at issue. Further if Rome II is only to apply to legal proceedings whether from their commencement or at their determination by a court there is no linguistic rationale for restricting such a construction to events giving rise to damage which occurred between 20th August 2007 and 10th January 2009 inclusive. If the Claimant’s alternative or the Defendant’s primary construction are correct, Rome II would only apply to events giving rise to damage occurring at any time on or after 20th August 2007 if litigation is commenced or pursued to a determination by a court. 
47.	Paragraph (14) of the preamble to Rome II refers to the requirement of legal certainty and paragraph (16) to the fact that ‘uniform rules should enhance the foreseeability of court decisions’. In my view these objectives would not be achieved if the application of Rome II were to depend on the date of issue of proceedings or the date of determination by a court of an issue regarding its application. 
48.	As both parties have pointed out, both the commencement of legal proceedings and the timing of a hearing before a court are susceptible to tactical manipulation. Further, listing and hearings may proceed at different paces in different European countries. It may be that different countries treat different dates as commencement of proceedings.
49.	For all these reasons I incline to the view that the application date of 11th January 2009 of Rome II referred to in Article 32 is not a reference to the commencement or determination of legal proceedings. 
50.	A construction of Article 31 to provide that the Regulation shall apply to events giving rise to damage which occur on or after 11th January 2009, would give legal certainty. This certainty would apply irrespective of whether litigation were to be or had been commenced. It would also achieve a fixed date irrespective of the different litigation procedures in different countries. However in light of the clear language of Article 31 that the Regulation is to apply to events giving rise to damage which occurred after its entry into force, I cannot reach such a determination without a ruling from the European Court of Justice. 
51.	As far as counsel are aware there is no case in this country or in any other Member State of the European Union which decides the temporal effect of Rome II. If the meaning and effect of Article 31 is that Rome II is to apply to events giving rise to damage which occur after the ‘entry into force’ of the Regulation on 20th August 2007, what is the meaning and effect of ‘shall apply from 11th January 2009’ in Article 32? Is it ‘apply to proceedings commenced’ or ‘apply to determination by a court’ after that date? What is the meaning and effect of Article 31? Should it be interpreted so that the Regulation shall apply to events giving rise to damage which occur on or after 11th January 2009?
52.	The answer to the questions raised by the preliminary issue for determination will, as recognised by counsel, be relevant to a large number of actions which have been commenced in England. They are also of relevance in resolving claims without resort to litigation. I understand from counsel that there has been no reference to the ECJ raising the issue of the temporal effect of Rome II. The answers to the questions raised by the preliminary issue are not clear. I have come to the conclusion that it is necessary to have the interpretation of the ECJ of Articles 31 and 32 of Rome II in order for this court to determine the preliminary issue referred to it.