QB-2019-000783 - [2025] EWHC 2002 (KB)

This is the judgment of the court.

The claimant has been anonymised as DHV.

To prevent jigsaw identification, his mother has also been anonymised as WTX and his former girlfriend as KLQ. The name of one of his close friends has also been anonymised.

To assist the parties and the public to follow the court’s line of reasoning, the text is divided into 19 sections, as set out in the table below.

This is a personal injury trial.

On 21 July 2017, a young British man called DHV (“the claimant”) attended a wedding in Mallorca with his girlfriend KLQ. The ceremony was held at the Cala D’Or Yacht Club, a picturesque waterside venue on the island. The wedding went well, but in the very early hours of the morning DHV left on his own to find a taxi back to the hotel. When he was close to the centre of a nearby road, a white Hyundai H1 minivan collided with him and dragged him under its axle along the road surface for nearly 200 feet. Skin and flesh were sheared from his shoulder and back. He sustained severe brain injuries. This has impacted almost every aspect of his life. The driver of the Spanish vehicle was uninsured.

DHV’s life is now unrecognisable from that before he entered the Mallorcan road, for not only does he find it difficult to function in the world, but his relationship with his girlfriend of more than a decade, and with whom he was living, ended, his roofing business ceased trading, and, as he poignantly told the court, sometimes he wishes he had not come out from under the van alive. He particularly regrets the burden all this has placed on his mother, who has faithfully provided a lot of the care for him in a selfless way. WTX movingly told the court that she cannot any longer recognise the son she once knew and all that is left is a “broken, scarred, burnt, brain-damaged, lost, frightened” person “clinging on to his life by his fingertips”.

By reason of a complicated series of legal arrangements between Spain and the United Kingdom, DHV brings his claim for compensation not in Spain but in this country, and not against the driver, but against the United Kingdom’s Motor Insurers’ Bureau (“MIB” and “the defendant”). The MIB finds itself in the defendant’s position as it stands in for the Spanish compensation fund, that in turn stands ready to compensate injured parties in Spain where the vehicle driver is uninsured. While the claimant has elected to bring his claim in this country, one of the distinctive features of this case is that despite being tried in London, the High Court must apply not the English substantive law and principles of compensation, but Spanish law and principles of compensation.

This is a complex and tragic case. The trial before me has been, perhaps inevitably, filled with conflict and emotion. In such challenging forensic circumstances, the court is indebted to the professionalism of counsel: Mr Vincent KC and Mr Pickering on behalf of the claimant DHV; Ms Wyles KC and Ms Blackshaw on behalf of the defendant MIB.

A note on terminology:

DHV’s claim is brought against the MIB pursuant to regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (“the 2003 Regulations”). These Regulations transposed into English law the obligations under articles 5, 6 and 7 of the Fourth Motor Insurance Directive. In particular, before the UK’s withdrawal from the European Union (“EU”), article 7 entitled an injured party resident in the UK to apply for compensation to the compensation body in the UK following an accident in another member state involving an uninsured vehicle. It also contains provisions regarding reimbursement of the UK compensation body by the relevant Spanish guarantee fund. Here the compensation body is the MIB. The guarantee fund in Spain is the Consorcio de Compensacion de Seguros (“the Consorcio”).

The MIB is an organisation established in the United Kingdom shortly after the Second World War. It is funded by a levy imposed on all drivers through their insurance companies, which adds a premium to the insurance policy a driver takes out to reflect the mandatory charge. Its function is summarised succinctly on the splash page of its website (www.mib.org.uk): “Helping victims of uninsured and hit-and-run drivers”. Therefore, if a person in the UK is injured by an untraced hit-and-run driver or a person who is uninsured (or lacks valid insurance), the injured party can make a claim to the MIB for compensation. It is this function of providing compensation for people injured by uninsured drivers that has led to the MIB’s status as defendant in this case. This is because of the 2003 Regulations. Regulation 10 at the relevant time provided:

“10.

MIB is approved as the compensation body for the United Kingdom for the purposes of the fourth motor insurance directive”

The MIB’s status as a compensation body is extended to accidents in European Economic Area (“EEA”) states if certain conditions contained in regulation 13 apply. Regulation 13 at the relevant time provided:

“Entitlement to compensation where vehicle or insurer is not identified

13.

—(1) This regulation applies where—

(a)

an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of—

(i)

an EEA State other than the United Kingdom, or

(ii)

a subscribing State,

and an injured party resides in the United Kingdom,

(b)

that injured party has made a request for information under regulation 9(2) , and

(c)

it has proved impossible—

(i)

to identify the vehicle the use of which is alleged to have been responsible for the accident, or

(ii)

within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.

(2)

Where this regulation applies—

(a)

the injured party may make a claim for compensation from the compensation body, and

(b)

the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.”

Therefore, in this case the qualifying facts are:

These compensation arrangements were reviewed and explained in detail by the Supreme Court in Moreno at paras 2 to 17. The complexities meticulously explored by the Supreme Court need not detain us here. The position can be reduced to its simplest form: no one disputes that DHV had the right to pursue the MIB in this country for the accident in Spain.

However, a further vital question arises. Which law should govern the quantification of compensation (damages)? Both parties agree it should be Spanish law (for example, as recognised by the claimant in his skeleton argument at para 31 and the defendant at para 4, both confirming the same in the agreed note of law at para 2). However, there is disagreement about why Spanish law applies to a trial conducted in England. I resolve this dispute in Issue 11. It is a vital issue and in this case has far-reaching consequences, necessitating my taking it out of turn.

Primary liability has been accepted by the Consorcio in its capacity as the Spanish guarantee fund. What remains in dispute is whether, and to what extent, DHV contributed to the accident by his negligence, the extent of his injuries and losses, and what compensation is properly due for such as are proved under the Spanish law.

The parties identified 14 issues at the outset of the trial. While I have retained the numeration proposed by the parties, I have refined certain issues slightly, simply to provide additional structure to assist in understanding the analysis necessary for the issue’s determination. The revised issue-list was circulated to the parties and agreed. The substance remains the same.

Therefore, the issues to be determined by the court are:

I will take the issues in the order the parties suggested, save that Issue 11 is so vital and touches on so much, that I take it out of sequence and determine it after Issue 2, before returning to the stated sequence. On this, I agree with Mr Vincent’s submission that there is an “inextricable link” between the resolution of the correct approach to Spanish law (Issue 2) and legal significance of Rome II (Issue 11).

The court has given its decision on Issue 1, and will provide reasons for the exclusion of Mr Gornals’ evidence in the final judgment.

I make plain that my approach to the judgment text is heavily informed by the approach of the Court of Appeal in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ. 407. The court stated at para 58:

Therefore, I focus on what has been essential to my determinations in this case. Numerous side issues were thrown up. I do not need to resolve them all. The critical issues are clear. I focus on those and make such findings of fact as are necessary to determine the prime identified issues here. While I do not set out all the evidence the court received, and it is extensive, I emphasise that as part of my review I considered or reconsidered it all. I reserved judgment for precisely that reason. I provide an assessment of each of the key witnesses and refer to the vital evidence that informed the court’s decision on any specific issue within the dedicated section of the text.

I now provide the court’s overall assessment of the key witnesses. As there will be much discussion about the positioning of DHV at point of impact with the Hyundai minivan, this is a photograph of the van taken from the trial bundle:

Equally, there will be extended discussion about the layout of the roads, where DHV crossed the carriageway and the zebra crossing. Here is an aerial representation of the overall layout, once more from the trial bundle. It is followed by a photograph of the scene of the scene at ground level with the point of impact very near to the bottom centre of the image. One can see the zebra crossing further back as the road bends to the right.

I emphasise that in this section I do not provide a particle-by-particle analysis of the evidence, but the main lines of the court’s findings about the key witnesses to give context to the analysis of the issues that follows. Certain witnesses have been heavily criticised by counsel. A witness’s demeanour can be relevant, but decisions should not be based “solely” on demeanour (Re M (Children) [2013] EWCA Civ 1147 at para 12, per Macur LJ). However, demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371, per Peter Jackson LJ at para 25:

“No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence.”

That said, I emphasise that I place very limited weight on demeanour, save that I carefully observed the evidence of DHV and was satisfied that broadly he was genuinely trying to answer questions, but his cognitive impairments resulted in his losing the way and getting confused. With that principal exception, I have focused heavily on the substance of the evidence witnesses have provided. I am not impressed by the “look in their eye” approach; I evaluate what they said, applying the recognised canons of fact-finding including the question of probability and improbability. In addition to the ten witnesses below, the claimant’s mother WTX gave evidence, but her evidence was not materially disputed. Her evidence was powerful. Her love for her son evident. Her concern for his welfare unmistakable and commendable. One sees instantly how the events of but a second can damage lives for years.

The witnesses I assess here are subdivided into five groups, each with a set of two:

Lay witnesses

Two relevant lay witnesses testified (1) DHV; (2) his former partner KLQ.

In the witness box, DHV adopted a statement he signed on 28 September 2020. At the time of the incident, DHV was aged 29. DHV told the court that he had set up a roofing company and was “doing well as a professional”, becoming a businessman with “an empire”, as he put it. In July 2017, he went to a friend’s wedding in Mallorca with his then girlfriend KLQ. The event was “very nice and everyone was having a great time”. The reception at the Cala D’Or Yacht Club went well. There was dinner and dancing. He was “entertaining the kids” more than dancing. It was a long and enjoyable day and during it he was having to deal with complications back at work in the UK, so had to try to sort out business. He nodded off at the table later on because he was tired and wanted to go back to the hotel. KLQ did not want to leave, which frustrated him a little, so he left alone. He wore a “brand new” white shirt.

He had had a glass of champagne before the reception and drinks after, but he was not drunk. He drank bottled Corona and rum and coke. The account provided in his witness statement continues:

“I then started to walk out of the club on my own looking for a taxi. I left the yacht club whilst KLQ was still saying goodbye to people. I decided to turn right and I walked downhill along Carrer Comellars in the hope I could find a taxi rank. I was on my own.

I looked down the road and saw 6 buildings to the right and the seaside at the end of the road. I thought that the most likely place to find a taxi or find a taxi rank was there, so I walked in that direction.

I decided to cross the road. I saw a zebra crossing and walked towards it. When I got to the crossing I looked up and down the road and saw a car in the distance. The car was very far away in the distance, so I thought it was safe for me to cross the road. I then started to cross the road. I remember being on the zebra crossing but I do not remember how far across I was. My last memory is of walking across the zebra crossing. My next memory is of being in hospital in England.”

Two key issues arise in DHV’s evidence as explored by the parties: alcohol consumption and movements. I examine them in turn.

Alcohol. I found that DHV was very defensive about the amount of alcohol he had drunk. He appreciated, as he told Ms Wyles, that the defendant’s case was that “he was bladdered”. When questioned by his own counsel, he stated that he had consumed six Corona bottled beers over about six hours and two rum and cokes. But during cross-examination, the picture changed. He accepted that he had been given a glass of champagne on arrival at the reception. Indeed, there is a picture of him and KLQ with glasses of champagne. He also accepted the possibility that he had another glass of champagne later. He also agreed that he might have had a glass of wine “with dinner”. It is noteworthy that the Spanish police report indicates that he smelled significantly of alcohol when they encountered him following the collision. His blood was tested for alcohol level and registered a reading significantly in excess of the lawful limit to drive in Spain. However, he was on foot.

Movements. The account of his movements provided at paras 29-31 of his statement contradicts his account from the witness box. The critical difference is that he says that he had in fact crossed the road to the far side away from the Yacht Club and was coming back towards it when he was hit. This is a significant difference. It is difficult to understand why he has provided two materially differing accounts. His filed evidence suggests that he was on the zebra crossing when he was “hit”. Indeed, at various points in accounts he subsequently gave, he repeated this suggestion that he was on the zebra crossing when the collision took place. He now says that his statement on this is “not right”. As he put it, it was “half accurate” or “a little bit inaccurate”. This is an underestimate. There was no suggestion in his witness statement that he successfully crossed the road at the zebra crossing, continued looking for a taxi on the other side, turned and was coming back towards the Yacht Club and that was when the collision occurred. Yet he claims to have a solid and clear memory of this differing account. What is also clear on the second account is that he was struck by the vehicle when he was on the roadway and not the zebra crossing. He accepted that if this was so, the vehicle would have had a right of way.

DHV was highly emotional at most points of his evidence and was constantly on the brink of losing his composure. He became very upset at regular intervals. This was not just about the injustice he sharply felt at having to fight this case following the severe injuries inflicted upon him, but also because his relationship with his girlfriend ended five months after the accident and she began a relationship with one of his former employees and is having a baby with him. This is all the more painful as just the day before the incident in 2017, he and KLQ had discussed getting married and having children, although she had wanted to wait before starting a family.

No one can doubt but that he has been greatly affected by the incident. Sometimes he rapped the witness box hard with his fist in anger and frustration. He told counsel that he did not like her. He said he feels he is better off dead. By the time he left roofing after the accident and when he had tried to resume working life, he was no longer the boss but a labourer. He acutely feels he is a failure. Since the incident all he has had is “trauma” and “that is my life”. At that point of his evidence, he tore one of the pages out of the trial bundle. He was frequently highly argumentative and confrontational, and sometimes did not answer questions. For example, there was this exchange when he testified:

“Ms Wyles: You had at least as many drinks as KLQ?

DHV: Is that an accusation? I’m not answering that.”

He tapped his head and said, “what’s up here is fucking mental because of you lot”. To make her point, counsel put a report to him prepared by his case manager Katie Wright on 21 September 2017. He said, “That would have been days after I tried to take my life.” He wishes he had not got up out of the hospital. He wakes up and does not want to do anything. He smokes weed every day and stares out of the window and has a coffee or another coffee. He says you can go through his call logs in two swipes as no one calls him as everything and everybody he cares about has gone. If he does not win the case, he may do a stupid thing to himself. Being “me” had been “amazing”, as he had all the things in life. People used to respect what he said but no one pays him respect now. He is 37 and must go to his mother for money. He used to help people out. He said that he had been “chained to the bed in hospital” and in his statement reported that KLQ told him that he “was anxious and angry in hospital”. “For example, I smashed a phone for a reason I cannot now remember”. As to the future and a possible return to work, he said in his statement:

“86.

I am extremely worried about what the future holds for me, because I do not know what other job I could do. Almost all my working life has been in roofing. I can deal with the paperwork side of a business but don’t have the skills to sit in an office all day and in any event have no desire or aptitude for that type of work.”

He says that he does not know what he will do if he loses the case. He could “become a serial killer”. Through all this, I am bound to observe, Ms Wyles maintained a calm professional approach and gave DHV space to answer. She did not interrupt; she did not respond when in the middle of an answer to a factual question he suddenly made a disobliging deeply personal comment directed at her. At all points, counsel conducted herself with decorum and distinction.

DHV’s memory of events immediately prior to the collision has vanished, a not unusual reaction to severe traumatic injury. I take nothing from that. However, venturing one step further back, he provided the court with a detailed account of his movements once he left the Yacht Club. The difficulty with that account is that his evidence from the witness box is materially different to his 2020 statement. This difference raises a question about his reliability. This can be combined with his differing accounts of the amount of alcohol he consumed and impacts his credibility. Overall, I am not persuaded that DHV is a reliable and accurate narrator about events once he left the Yacht Club. This is important because the two critical areas of unreliability centre around the amount of alcohol he consumed and his movements in the road immediately prior to the collision. I find that he consumed more alcohol than he was initially prepared to tell the court and that at first he materially underplayed the amount of alcohol he consumed. This makes it more likely that he drank a significant amount of alcohol and the reason for his equivocations being his appreciating the significance of excessive alcohol. I also find that his accounts of his movements once he reached the T junction with the main road are inconsistent and raise doubts about the reliability of his account of his actions in the road.

In due course, these dents to his accuracy and reliability must be combined with the other eye witness accounts and the expert reconstruction evidence to assess holistically, and based on all the evidence, whether the defendant has proved that he was not upright in the road at point of impact but flush to its surface. That is a critical question for the court to determine in this case.

KLQ has tried hard to forget the day and the events as it was a difficult part of her life. It meant that she has a poor recollection of details. For example, she cannot remember getting a drink at the beginning of the reception or lining up for a buffet, although she had mentioned those details in her statement. Her memory of DHV saying he wanted to leave the wedding “has gone”. Her witness box testimony makes clear that she did not see DHV in the road, but only on the pavement. She did not see him step off the pavement and so did not see him in the road. She was not looking at him for a long period of time, it was just a glimpse. She did not see the car before it passed her and was not expecting the car as it was very quiet and there were no other cars or people. Although in para 20 of her statement she had an image of DHV stepping off the road, she confirmed in the witness box that she did not see him in the road. So it seems her account of the image of him “stepping off the road” is not reliable and she cannot explain it. A lot of her statement’s content when put to her received the answer, “I cannot recollect now”. It was put to her that the car was not coming down the road fast. She said it all happened very quickly because that’s how she felt things were unfolding before her – “fast”. However, she cannot say what the speed to the car was and cannot dispute that it was travelling at 40 km/h, the maximum regulation road speed. The position is that she cannot say what the speed was. She confirmed that her statement was true. This passage was put to her and she did not dispute it:

“I did not see the impact itself, I only saw the back of the car travelling down. I heard the impact. I heard a very big noise. Then the tyres skidded in the road.”

Today she does not know whether there was a zebra crossing. She does not now know whether she meant by that sentence that she thought DHV crossed on the zebra crossing as she did not see him in the road. She does not know why she said that the car was travelling very quickly. She did hear a tyre skidding noise but did not see the car skidding. When she was asked about movements and sides of the road, she told the court that now she does not know whether DHV is wrong about which side of the road he was on or whether she is wrong; she cannot say whether he was on the Yacht Club side or the far side. Her evidence on this adds nothing.

KLQ remembers very little about the day and night of the incident. The key conclusions about her evidence now that she had testified are these:

The indelible impression she presented was of someone desperately uncomfortable with being involved in the trial now that her relationship with DHV has ended. The court must treat the evidence contained in her filed witness statement with some caution as the evidence she has given from the witness box in important respects contradicts and undermines it, as it does her overall reliability. With KLQ we see how being emotionally conflicted about a previous intimate relationship impacts the reliability of a narrative account of events.

Accident reconstruction experts

Two accident reconstruction experts gave live evidence: Mr Sorton on behalf of the defendant; Ms Escobar Ruiz on behalf of the claimant. Mr Sorton testified first since the burden of proof lies on the defendant to prove contributory negligence. Each expert provided a detailed individual report, Mr Sorton dated 17 November 2020 and Ms Escobar on 30 October of the same year. They then provided a joint report dated 10 March 2021 in which they summarised their areas of agreement and disagreement. The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification.

Ms Escobar gave evidence assisted by an interpreter. I make every allowance for the process of giving evidence through an interpreter and the fact that this is the first time Ms Escobar had given evidence in a UK court.

Ms Escobar practises from a firm in Malaga, Spain called Intec Malaga, S.L. It provides accident reconstruction services. Ms Escobar has a “Diploma in University Specialisation, Reconstruction of Traffic Accidents” from the University of Valencia. She began research on a PhD (Polytechnic University of Madrid) in the biomechanics of pedestrians in road accidents. She continued her study for 3 years before stopping due to the Covid pandemic and has no plans to return to her doctorate for now. She also has around a decade’s experience in accident reconstruction, leading the department of the accident reconstruction firm in Malaga since 2012. At the time of her initial report, she had participated in the analysis and reconstruction of 540 traffic accidents. She states in her report that her expertise has been “decisive in resolving” more than 120 assessments “in different provinces at statewide level”.

Testifying in this way cannot be easy and at times was not for Ms Escobar. But the hallmarks of being a reliable and persuasive expert do not change, making every allowance for an alien forum and the pressure of court proceedings. Science does not change. I found Ms Escobar’s evidence unsatisfactory at several key points. Her original report contained errors. She fundamentally changed her position about the speed of the vehicle. She was prepared to offer opinions on topics she had no sufficient qualifications to give. She did not answer questions directly and often digressed unhelpfully. Her evidence, for example on the impossibility of the injuries to DHV being consistent with his lying on the ground and being “dragged”, was unconvincing and in defiance not only of expert medical opinion but simple precepts of logic and common sense. It took her far too long to make reasonable concessions which she only made when forced to. For instance, it must have been obvious to her that one plausible explanation of the gap in the bonnet alignment on one photograph was simply because this vehicle was around 17 years old at the time of the photograph and the bonnet just did not fit well. It took repeated questioning and ultimately the court again asking the simple question when she did not answer directly before she accepted what was obvious to everyone in court. There was no sound or safe basis to attribute the bonnet alignment with causation during the accident.

I examine the vital elements of her evidence in detail in course of the evidential analysis on the relevant issues. However, in critical respects I found that her evidence was not reliable, consistent or convincing. I cannot agree with Ms Wyles that Ms Escobar’s evidence generally was “evasive”, but concur that it was unimpressive in parts and of little assistance to the court on certain key point of dispute between the parties that I will review.

Mr Sorton has extensive relevant experience stretching back decades. He operates from a firm bearing his name based in Penrith, Cumbria. He had worked initially in the police force before specialising in road traffic accident analysis. He has assessed and reconstructed over 2000 relevant pedestrian-vehicle impact accidents. This is a very substantial base of comparators and examples in the field for him to draw on. Professionally, he has no inherent predisposition to assist either party, but his experience is chiefly being instructed on behalf of claimants not defendants. He gave evidence about facts that might be seen as critical of the driver in this case Mr Gornals and at times evidence that may be construed as helpful to the claimant and unhelpful to the defendant party that had instructed him. For example, he said that it is unlikely Mr Gornals did brake until possibly the end of the vehicle track post-impact.

The absolute foundation for Mr Sorton’s opinion about point of impact positioning of DHV is the absence of damage to the front of the Hyundai. He also emphasised repeatedly this was entirely contingent on an impact speed of 25-28 mph. As to this critical issue of the claimant’s positioning, Mr Sorton stated that “not a week which goes by without me looking at a case where a pedestrian was struck whilst standing up.” This is a central part of his habitual professional life. I found him to be careful and measured in his evidence, always at pains to alert the court to the limits of his evidence and expertise. There was no overreach, as I encountered with some of the experts (Ms Escobar, Ms Astigarraga – to come). He made concessions when he needed to, not because he was forced to do so but because he plainly saw this as right given the limits of the evidence or his expertise. He was not stubbornly dogmatic in his views. For instance, he accepted that he should have addressed the malignment of the bonnet in his report and does not or does not adequately. He relies heavily on the contemporaneous police report about the lack of damage, and agrees that “perhaps it was remiss of me” not to address the issue.

I found him balanced and helpful. Overall, it was the contrast between the quality of evidence given by Ms Escobar and Mr Sorton that was stark, and markedly in favour of Mr Sorton. I accept the submission that in material respects Ms Escobar’s evidence was confused and inconsistent (see her change of maximum vehicle speed from initial report to joint statement). I further accept the defendant’s submission that Mr Sorton was “open and clearly trying his best to help the court”. This does not mean that I have accepted his evidence in its entirety and rejected Ms Escobar’s wholesale. The analysis of the court is necessarily more nuanced. However, my overall assessment of the two experts is clear: Mr Sorton is by a distance the more persuasive, reasonable and reliable witness. However, I find it simplistic to simply state that Mr Sorton’s evidence is to be preferred to Ms Escobar’s at all points. Such assertions about expert preference carry a risk of losing sight of the cardinal principles: we do not have trial by expert and findings of fact are made on all the evidence, viewing the expert evidence in the context of all the other evidence.

Spanish law experts

Two experts on Spanish law gave evidence, Ms Astigarraga for the claimant and Professor Carreras for the defendant. It is necessary to set out relevant aspects of their evidence as affecting my assessment of their worth as a witness. I must dwell on these witnesses more than expected for two reasons. First, a distinctive character of these proceedings is that the court receives expert legal evidence to assist making findings of fact about the content of the applicable Spanish law. Second, the surprising nature of certain parts of the evidence offered to the court.

Ms Astigarraga is a Spanish lawyer (“Abogada”). She was admitted to the Bar in Malaga in 2009. In February 2023 she started her own firm specialising in personal injury and insurance. She states that she has “vast” experience in the international personal injury field and is regularly instructed as expert in matters of Spanish law. She has been preparing reports in these types of cases for 15 years. She has acted as a lawyer representing clients in such personal injury claims. She has, she told the court on oath, appeared in “about four English High Court cases over 10 years”. She has given evidence in the court in this jurisdiction before, but this is the first time in person, the others being remote. Her work is 70 per cent claimant and 30 per cent defendant. I found Ms Astigarraga to be in certain vital respects an unsatisfactory witness. This unsatisfactoriness ranged from simple factual matters such as the number of times she had testified in English proceedings (it was two cases, neither of which were in the High Court but in the court below) to her persistent attempt to deny she had copied parts of a colleague’s expert report. It seems that the root of her difficulty is that she approached the case at times more as an advocate for the party instructing her rather than an independent arms-length expert.

Critically, she did not mention in her statement of truth a recognition of her Part 35 duties to this court. Further, she failed to mention in her report what was obvious: that she had relied on a separate report produced by Ms Romero, an associate lawyer in her firm as a source for her own report. Additionally, and this adversely impacted her credibility, she tried to suggest under persistent and legitimate questioning from Ms Wyles that she had not copied Ms Romero’s report. Ms Romero’s report is dated 2022. Ms Astigarraga’s reports are dated 2023 and 2024. To understand the significance of this issue as it affects her credibility, it is necessary to outline how it developed. To begin, two extracts of their respective reports:

To this, Ms Astigarraga replied that she and her colleague “work closely together and used very similar language”. However, the extent of the similarity rendered this as the explanation implausible. She then said that there was a central “database” that lawyers in the office use when explaining common principles. This might explain the above two entries. But it did not explain other identical passages, specifically about this case:

Therefore, even the punctuation is identical, no comma after the date in the first paragraph, but a comma after the date in the second. Indeed, there are 28 paragraphs identical to Ms Romero’s in her report. Ms Wyles provided an annex in tabulated form powerfully underlining the point. Finally, Ms Astigarraga accepted that she “might” have copied passages from Ms Romero’s report. Not only had she initially denied this, but she had said at the outset of her evidence that it would be wrong to do so. Further, she had not complied with Part 35 and identified Ms Romero as one source of her report. She plainly copied parts of Ms Romero’s report, failing to cite it as a source as she should have. Her explanation that she “did not copy” was obviously unconvincing and not true. It cannot be just a central database that she and Ms Romero copied because the extract was specifically about DHV’s case and details of medical findings. Therefore, her final concession that the cited passages were copied from Ms Romero was forced through persistent questioning rather than an open concession from a witness in error.

This interlude caused the court to think carefully about Ms Astigarraga’s credibility. It did not destroy it, but these were poor and unhelpful answers and unworthy of a legal professional entrusted with assisting a court on such a central issue as the nature of applicable Spanish law. While I cannot go as far as Ms Wyles invites me – “any vestige of respect for this expert has evaporated” – I have had to approach Ms Astigarraga’s evidence with additional caution. These concerns were added to by her surprising approach to other issues. When she was asked whether a Spanish court might take the alcohol consumed by a pedestrian into account as a “relevant factor”, she said it would not. This led to the witness being directed to cases in the bundle of Spanish authorities where the Spanish court had, it appeared, taken the alcohol consumed by the injured pedestrian into account. Her response to this was that although it was a relevant factor, alcohol consumption was one out of many factors – a change of account. This also affected the court’s assessment of her credibility.

Next, questions about her balance arose. Not one of the Spanish authorities she provided to the court related to cases where the pedestrian had a higher fault contribution than the driver. When asked whether she had looked for such cases, she said, “Yes, I think so”. It is puzzling that she was not able to find any Spanish cases of greater pedestrian fault. Professor Carreras had. This caused the court to anxiously consider her partiality. She mentioned for the first time in the witness box a judgment in Spain that she stated applied adjustments of the Baremo for foreign residents and a report of the Public Prosecutor (Report 3/2016). But she did not refer to the documents in her report and did not supply them in the bundles. She told the court that she could “definitely provide the court with the judgment today”. She never did. Her first mention of the Public Prosecutor’s report was during cross-examination. This was very unsatisfactory, made more so by her assertion that she purported to “introduce it now in oral evidence”. This is entirely contrary to principle and good practice. As to the court’s reasons for refusing to admit the report, one starts with the essential point that the report was never provided to the court. It was heralded for the first time in cross-examination. This operated as a form of forensic ambush that is entirely contrary to proper procedure. If there had been anything of value in the report that was sought to be relied on, the report should have been served and filed so the defendant had fair opportunity to contest its admissibility, and if admitted to counter the contents with rebuttal evidence or balancing or contextual material. All of this should have happened well in advance of a trial that took place seven years after the incident in which the claimant sustained injury. Furthermore, I do not accept the claimant’s submission that even though the court ruled against the admissibility of the Prosecutor’s report, Ms Astigarraga’s evidence about it remains before the court and can be considered. In the absence of the foundational document, her commentary about it is robbed of value. It cannot be properly validated, tested, contextualised, discounted or confirmed. I can place no weight on that part of her evidence.

Ms Astigarraga stated that it is possible for health care or rehabilitation benefits to result in a departure from the strictures of the Baremo, but she has provided no case where that has happened. On consolidation date, her evidence was out of tune with all the other witnesses: Dr Patron, Dr Dominguez and Professor Carreras, Ms Astigarraga being the only witness asserting the 2023 date of consolidation as opposed to 2018. It was a curiously outlying stance. Overall, and as a result of these answers and, as importantly, her inconsistent and at times evasive stance, the court had to treat her evidence with caution. However, it was not rejected completely, but assessed carefully. I do not need to decide whether the weaknesses in Ms Astigarraga’s evidence amount to “a litany of illustrations”, as the defendant asserts. Nor can I say that her report - and presumably her evidence - carries “little or no weight”. Mr Vincent tried hard to salvage her evidence. But I cannot accept his submission that she “displayed everything she needed to as an expert to help the court”. He conceded that her evidence about the copying issue “seems unsatisfactory”. It was. Her evidence overall was unhelpful in material respects, as was her approach and occasional evasiveness. It is enough to say that Ms Astigarraga was an unimpressive and unreliable witness on several critical topics, as the ensuing analysis will draw out.

Professor Carreras is a very engaging, fluent and articulate witness. His command of English is impressive and he testified without an interpreter. While based in Barcelona, he has been practising in Spain for 40 years and has “always represented claimants”, specialising in litigation in traffic accidents, personal injury and insurance claims. He is Professor of Law at the Universidad Ramon Llull de Barcelona. On several occasions he has provided expert reports to English courts on various aspects of Spanish law. He is a founding member of the British Spanish Law Association and served as a member of the Board of Directors. He especially “enjoys” litigating against insurers and banks. Exceptionally, he finds himself on “the other side” of the courtroom, as here. He says that is how he “knows all their tricks”.

I detected no sense of partiality, and was satisfied that at all times he was attempting to assist the court rather than argue one side of the case on behalf of those who instruct him. He has not been involved in a case with Ms Astigarraga before. I found his evidence straightforward, directly engaging with the question, aware of his limitations and balanced. I found no reason to doubt his balance or credibility. That said, it does not follow that I accepted his evidence in its entirety. I did not. He was a persuasive witness who was unmistakably trying to assist the court. For instance, when he was asked whether there was any decided Spanish case in which the Spanish court had awarded damages for personal injury in accordance with foreign law rather than the Baremo, he said, “I looked for hours and hours” and told the court he reviewed somewhere in the region of 300 to 400 judgments.

I limit here my analysis of his evidence to matters that have affected my assessment of Professor Carreras as a witness. In due course I return to the substance of his evidence as I do with Ms Astigarraga. The vital point in the contrast between the two is not so much that Ms Astigarraga does not explicitly state in her report that she is aware of her Part 35 duties, significant though that is, it is that her report and evidence is not in critical respects Part 35-compliant. That is a far more serious matter. She did not take as a starting-point an overriding duty to the court rather than her instructing party. This case was not short of advocates; it needed impartial expert advice. Professor Carreras provided it; largely, Ms Astigarraga did not.

Actuarial evidence

Two actuarial experts gave evidence, Mr Peraita for the defendant and Mr Lecuona for the claimant.

Mr Peraita is a very experienced actuary. He has been a full member of the Spanish Institute of Actuaries for 50 years and has been president both of the Spanish and the European institutes. He has prepared experts reports for legal proceedings, and has participated in more than 150 cases in the last ten years, and has been professor in two universities. He has taught actuarial mathematics. He has given advice to international organisations such as the World Bank on actuarial principles, but has not given evidence in other jurisdictions. He has not given evidence in the UK before.

His first report was dated 1 August 2024. His second report contained his assessment of the compensation of DHV and is signed 30 August 2024. His third report was his comments on the valuation by Mr Lecuona and dated 10 September 2024. He prepared a joint statement with Mr Lecuona dated 27 September 2024. Finally, he prepared an additional note with a different interest rate, with 3.5 per cent and 2.5 per cent. His opinion is that the applicable interest rate is 3.5 per cent, a matter affecting a very long time right up to end of life or retirement. He checked the inflation rates in both Spain and the UK and noted that both national banks are aiming at 2 per cent.

I found Mr Peraita to be knowledgeable and also very fair-minded. He reached a conclusion that differed from Mr Lecuona but that was significantly in favour of DHV about the extent of deductions for future benefits. While Mr Lecuona deducted benefits all the way to the notional end of life, Mr Peraita only deducted the benefits up to the age of 67. Thus Mr Peraita’s analysis financially favoured DHV on this. I got no sense that Mr Peraita was partial in any respect, except for his great respect for international principles of actuarial science about which he spoke with a passion. The application of sound actuarial principle is something vital to him. He gave the example of a book on actuarial science he ordered from Amazon in “Chinese” in error, but he was able to understand it despite the language differences because of the internationally recognised calculations. He contrasted this with certain of Mr Lecuona’s calculations which he stated had no basis in good or recognised actuarial practice. This was consistent with his understanding of the nature of the Baremo which he said was imbued with a spirit “favourable to the victim”.

I found him to be authoritative and he was able to speak around his answer by reference to the nature of practice in Spain, the principles at the heart of the Baremo and his extensive experience. This was persuasive. That said, it is not possible to reach a binary position about whether the court completely preferred the evidence of Mr Lecuona or Mr Peraita. It was acutely issue-specific. As he said, actuarial calculations are not a “crystal ball”, but provide a consistent and rational basis for the calculation. The assumptions when applied to one person is a “bet”, because he might live longer than the assumptions and run out of money. But the valuation is to make a reasonable estimation to reflect the total of damage inflicted. In this sense, the assumptions do not necessarily reflect reality but an approximation to it.

Mr Lecuona’s qualifications are that he has a degree in business and economics and as an insurance actuary. He has experience of preparing reports for the Spanish courts over more than 20 years, being instructed by both “sides”, defendants and claimants. Each year he prepares about 60-100 reports in the actuarial firm he works for. He has never given evidence in this country before.

Mr Lecuona has not applied the Baremo strictly. He has not slavishly adhered to the Baremo limits because he thinks they are “unfair” in this case and to apply them in the UK would be to “depart from reality”. He has used UK costs (of care, for example) then applied the Spanish correcting factors such as growth and benefits increase, so he has mixed his methodology. As he put it, “In this section I was being extremely orthodox and the applying the law and the law directs us to take these correcting factors into account and I do so.” He put his ultimate position this way:

“I am saying it would not be fair to adjust to apply it in the same way and it would not allow for ‘just repair’ for the injured person. If the cost of care in that country were lower, then I would take into account the lower cost of care there or it would be unjust enrichment of the person. Therefore, one should use the Baremo system and then adjust for different situations in other countries.”

The value of Mr Lecuona’s evidence depends in part on the court’s decision on the Issue 11 dispute about the extent to which it is possible to depart from the strictures of the Baremo scheme, or, alternatively, whether implicit in that system is the flexibility to make awards to reflect what Mr Lecuona called “the reality”.

Medico-legal experts

The final pair of experts consists of the two medico-legal experts. This type of witness plays a distinctive role in Spanish personal injury proceedings. They assist the court on how the medical evidence accords with the sequelae and the categories of compensation under the Baremo system. Their role is authorised under the Baremo itself (article 37). Dr Dominguez was instructed on behalf of the claimant; Dr Patron on behalf of the defendant.

Dr Manuel Dominguez Salgado is Doctor of Medicine and a specialist in neurology and neurophysiology. He is a specialist physician at the Gomez Ulla Central Defence Hospital in Madrid and an associate professor in neurology at the University of Alcala de Henares. He is Professor of Neurology at the National School of Work-Institute of Health Carlos III.

He could not recall whether he had seen all the medical reports or joint statements of the defendant’s medical experts. This is significant because it is part of the task under Spanish law for a medico-legal expert to assess the medical evidence in providing assistance to the court. He therefore confined himself to a consideration of the claimant’s medical experts and at no point refers to the defendant’s medical expert evidence. This did not strike me to be due to an inherent bias or forensic hostility, but because he misconceived them as being “not relevant” and instead based his opinion on “the treating doctors”, thinking that the claimant’s experts were the treating doctors. This resulted in opinions and recommendations based on an incomplete evidential record and a consequent imbalance. Further, he replicated a significant passage of script from an article (in excess of two pages) without attributing it to the source. Therefore, it is in the body of his report unattributed in breach of Part 35 requirements. The claimant submits that “this was not plagiarism” and Dr Dominguez thought copying an article is “the normal thing to do.” The submission misses the point: the question is his approach to the court. He had the opportunity to accept his error. Instead, he compounded it by claiming that in fact he had cited the source in a footnote. This was not true: he had also copied the footnote from the source article. These acts caused the court to think carefully about his openness. The simple way forward was to admit the error and apologise. Instead, he offered in his oral evidence obviously incorrect explanations. This was unconvincing.

The claimant’s submission is that Dr Dominguez was “doing his best to assist the court”. I must view the effect of his effort rather than merely considering his intentionality. Due to the significant oversight in the evidence he considered, the weight that can be properly placed on his evidence is reduced. However, his error does not, in my judgment, invalidate it. However, at times Dr Dominguez did not answer the question, and had to be pressed by counsel to respond to the direct question she asked. He offered an unconvincing opinion when awarding points for one of the Baremo categories, hearing loss (8 point out of 50) when there were no expert reports to support the finding as clearly required by the Baremo system.

Doctor Alejandro Patron Figari is a medical specialist in bodily injury evaluation and member of the Barcelona Medical Association. He has a Master’s degree in Medical Evaluation and Medical Expertise from the University of Barcelona, and is an insurance medical expert registered with the Insurance Expert Association in Spain. He has been a professional expert for 20 years and has given evidence in court on average three times a week. He provided a report having been instructed by the defendant, a supplementary report after he received further documents, and updating “letters”, culminating in a third and final report dated 15 April 2024.

Dr Patron is a very experienced expert and is in court very frequently assisting judges with his expertise. He is also an engaging and affable character with a larger-than-life confident personality who was eager to try to assist the court. He was able to explain complex matters in simple and vivid terms that were very helpful. He has excellent communication skills and is able to find analogies and metaphors to simplify potentially complex or highly technical issues. All this does him credit. His opinion evolved as he saw more and more documents. As he put it, “I am not a specialist in neurology, but I am a specialist in bodily damage.” The challenge to the witness was centred in part on the fact that he did not include in his September 2023 report code 01136 on cognitive disorder, which he did in the April 2024 report. He was questioned at length about what made the difference that led to the inclusion of cognitive disorder after a substantial delay.

I found that he was at points unbalanced in his conclusions, not motivated by a hostile attitude towards the claimant, but rather an insistent adherence to his opinion being right. There were occasions when he only accepted the conclusions of other experts with reluctance. At other times, he was unrealistic, as when he suggested that DHV could in future be employed as a “soldier”. This was obviously so unfeasible and potentially dangerous that it displayed an unwillingness to accept evidence that was contrary to his overall stance towards the case. Such matters reduced the weight the court could place on Dr Patron. That said, on other issues, his evidence made good sense and the court was able to accept it, such as with the requirement that there should be audiometry testing and that anosmia is the eradication of the ability to smell (what Dr Patron calls the “abolition”) rather than the alteration. The court was left in the position, as it had been with Dr Dominguez, that it did not accept or reject the entirety of the evidence of the expert but carefully assessed it in the context of the totality of evidence.

Overall, I do not accept the claimant’s submission that “limited importance should be placed on the medico-legal experts and limited importance on Dr Patron in particular.” It is a distinctive feature of Spanish law that the court is assisted by such experts. No one objected to these experts being called in the trial before me. Indeed, their evidence was explored for an extended period. The Baremo system is alien to our courts. I found the evidence from these experts of assistance in evaluating how to fit the facts of this case as I found them to be within that Spanish system of compensation. I reject the claimant’s broad submission that the “medico-legal evidence is not useful”. Of the two experts, I found Dr Patron, with the qualifications I have identified, to be overall more reliable and helpful.

Substantive or applicable law

This case involves a “foreign” element. This means that although it is tried in England, and concerns the injury to a person resident in Britain, the accident occurred in Spain with a Spanish driver and a vehicle normally based in Spain. This prima facie involves a conflict of laws. Dicey, Morris & Collins on the Conflict of Laws, 16^th ed., (2023) (“Dicey”) states at 1-001A:

“that part of the law of England and Wales which deals with cases having a foreign element. By a ‘foreign element’ is meant simply a contact with some system of law other than English law. Such a contact may exist, for example, because a contract was made or to be performed in a foreign country, or because a tort was committed there.”

I accept Mr Vincent’s succinct submission that the “starting-point is that Spanish substantive law applies”. Ms Wyles agrees. The reason why Spanish law should be applied by an English court remains in dispute, and it will be necessary for the court to rule on it (see Issue 11). The court was referred to a decision of this court in Lambert v MIB [2022] EWHC 583 (QB) (“Lambert”), a judgment of Sarah Crowther QC sitting as a Deputy Judge of this court, to whom the court is grateful. Lambert in turn cites this court’s earlier decision in Yukos Capital S.a.r.L v OJSC Oil Company Rosneft [2014] EWHC 2188 (Comm), a decision of Simon J. It repays citing what Simon J held:

I must flag up an area of dispute on the law between the parties about determining the Spanish law. The defendant’s case is that as held by the Privy Council in Perry v Lopag Trust Reg No 2, (Cayman Islands) [2023] UKPC 16 (“Perry”),the task of the trial judge when there are disputed issues of foreign law is to “determine what the highest relevant court in the foreign legal system would decide if the point were to come to it.” The claimant does not dispute what is said in Perry but disputes that is binding or has any application to a situation (not considered in that case) where the victim of a motor accident seeks to invoke recital 33 of Rome II. Several disputes about the Spanish law arise in the issues between the parties. I determine them at each point on the evidence before me about the content of the applicable Spanish law and decide it as a finding of fact.

Therefore, I make plain that my approach to this case is:

Procedure and evidence

All this begs a question. What evidence should be received and examined and using which procedure? This question was settled by the Court of Appeal in Wall v Mutuelle. In that case, a British resident Steven Wall was injured in a motorcycle accident in France. It was agreed, liability being admitted, that he could sue the other driver’s French insurers in this country due to European regulations and directives that predated Rome II. The parties disputed whether the compensation due to the claimant should be quantified using French modes of evidence and procedure or English. The Court of Appeal was clear that the English approach to evidence and procedural rules should be used. Longmore LJ said about Rome II at para 12:

“It cannot be the case that the Regulation envisages that the law of the place where the damage occurs should govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case. An English court is ill-equipped to receive expert evidence given in the French manner.”

Jackson LJ put it more fully and trenchantly at para 43:

“it is unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact. The courts of each European jurisdiction have developed evidential practices with which both their judges and practitioners are comfortable. Germany, for example, has developed the ""Relationsmethode"", in which the judge exercises a high degree of control over the evidence to be received as the case develops. The Netherlands have a different procedure, although there too the judge takes a dominant role in the questioning of any oral witnesses. France has the procedures described by the experts in this case. If an Englishman is injured in one of those jurisdictions and sues there, it is inconceivable that the local courts will meekly adopt English evidential practices. There is no way that those courts would countenance several days of oral evidence and extensive cross-examination of experts in order to assess quantum of damages. The judges and practitioners do not have the requisite experience to adopt our evidential practices. We do not have the requisite experience to adopt theirs.”

Indeed, article 1(3) of Rome II states in terms that the Regulation shall not apply to evidence and procedure. While it is a derogation from article 15, it must be narrowly construed, but the Court of Appeal in Wall v Mutuelle has made the situation clear. This answers the question why this court has conducted the instant trial according to English procedural law and admitted, excluded and tested the evidence in accordance with English legal practice and not Spanish. However, that does not mean that Spanish substantive law is disapplied. This is a matter I must return to in Issue 11, and a further reason to take it out of turn.

I find that:

Due to the determination of this issue having far-reaching implications in this case, and while retaining the numeration proposed by the parties, I take it out of turn and provide my analysis and decision here. The question of whether recital 33 of Rome II applies to the assessment of compensation in DHV’s claim may usefully be further divided into three sub-issues:

Applicability of Rome II

Claimant’s submissions. The claimant’s case is that Spanish substantive law applies to this case because of Rome II, and Rome II is part of Spanish law, being directly applicable to it. In this case there is a conflict of laws because DHV was injured in Spain and brings a claim for compensation for his injuries and losses in England. It is because of Rome II that the law of the “state of accident” applies. The applicability of Rome II in conflict of laws road traffic accident claims was confirmed by the Supreme Court in Moreno.

Defendant’s submissions. The defendant submits that the claimant’s analysis runs “entirely contrary” to the Supreme Court’s analysis in Moreno. The Supreme Court made it clear that there is “no choice of law issue arising in claims for compensation under regulation 13” and therefore “the Rome II Regulation does not fall to be considered nor does it apply.”

In one real sense, this is a phony war. What is really at stake is whether recital 33 of Rome II applies and its significance for DHV’s case. The route the claimant seeks to support its recital 33 argument is by maintaining that this is a Rome II case. Conversely, the defendant argues that Rome II does not apply in this case, with the consequence that recital 33 contained within it does not apply. There remains the further question whether recital 33 would make a difference to how a Spanish court would decide the level of compensation in this case, but that argument is cut off at the root if Rome II does not apply. This is what lies behind what might appear a highly technical dispute. It carries with it great potential significance.

The incident at the centre of this claim occurred after the UK’s Brexit vote in 2016 but prior to the end of the transition period at 23:00 hours on 31 December 2020. While after withdrawal from the EU, European law no longer generally applies in the UK, certain exceptions were made, including when there has been damage caused prior to the end of transition (Article 66(b), UK-EU withdrawal agreement and section 7A, European Union (Withdrawal) Act 2018 (“EUWA”)). One part of retained European law is Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (“Rome II”). The parties do not dispute that Rome II has been retained. The dispute is about its relevance to DHV’s claim. What is clear is that due to the arrangements around the UK’s withdrawal from the EU, Rome II is capable of being applied in this case. The question is whether it in fact bites.

In May 2002, the European Commission (or “Commission”) published an initial draft of a proposal for what was to become the Rome II regulation. The court was provided with an account of the legislative passage drawn from the authoritative monograph by Andrew Dickinson (The Rome II Regulation: The law applicable to non-contractual obligations (2010) (“Dickinson”)). Dickinson documents significant differences of approach between two key elements of the legislative process, the European Parliament and the Council of Europe, that is between the elected MEPs and the appointed ministers of Member States. The regulation was finally adopted in July 2007 and came into force (except for Article 29) on 11 January 2009.

Rome II is divided into 40 recitals and 32 articles. Definitionally, Rome II comes after Rome I (Regulation (ECHR) No 593/2008) which provides for rules within the EU “on the law applicable to contractual arrangements”. In other words, it lays out a series of rules for the applicable law in various contractual situations with a cross-border element (sale of goods, consumers contracts, provision of services). Rome II on the other hand lays out rules “on the law applicable to non-contractual obligations”. Its purpose, as recital 4 makes clear, is to identify “measures relating to the harmonisation of conflict-of-law rules as those facilitating the mutual recognition of judgments.” This is because, as recital 6, observes:

“6.

The proper functioning of the internal market creates a need, in order to improve the predictability of the out- come of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.”

This replicates recital 6 in Rome I. Further, the aim was that, as recital 16 sets out, the:

“16.

… 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 per- son who has sustained damage. A connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.”

This is an expansion of recital 16 of Rome I, which instead ends with the sentence that “The courts should, however, retain a degree of discretion to determine the law that is most closely connected to the situation.” Rome II then examines precisely this question of forum. Its rules address the question of where the damage or loss occurred, as recital 17 explains:

“17.

The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively.”

Recital 18 then provides an explanation of the purpose of article 4, a key article on how forum of the trial court is connected to site of damage:

“18.

The general rule in this Regulation should be the lex loci damni provided for in Article 4(1). Article 4(2) should be seen as an exception to this general principle, creating a special connection where the parties have their habitual residence in the same country. Article 4(3) should be understood as an ‘escape clause’ from Article 4(1) and (2), where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.”

This may be understood as a further working out of the discretion articulated in recital 16 of Rome I.

Tiffany Moreno was a resident of the United Kingdom who was injured while on holiday in Greece in a road traffic accident by a vehicle driven by an uninsured driver. She sustained very serious injuries. Ms Moreno claimed damages against the MIB in the High Court in England. She argued that English law should apply, the motivation being that Greek law would result in a significantly lower level of damages.

The Supreme Court unanimously ruled that although the trial of her personal injury claim took place in England, Greek substantive law should be applied to assess compensation. This decision overruled previous Court of Appeal decisions in which the court had assessed compensation in accordance with English law and not the law of the state of accident (Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543). It is necessary to follow the careful analysis of the Supreme Court. This will involve fuller than customary citation, but it is required given the centrality of Moreno to rival submissions in this case on the Rome II point, but more widely, as will very soon become clear. As the court states from para 31:

“31 The inference is that, to whichever special provision of the Fourth Directive the victim of a motor accident may have to have recourse, the compensation to which he or she is entitled is and remains the same. It is the same compensation as that to which the victim is entitled as against the driver responsible, or his or her insurer, or, that failing, as against the guarantee fund of the state of the accident. The compensation remains the same if and when the victim has recourse instead to the compensation body established in his own state of residence under article 6 or 7.

…

If the victim chose or were led to pursue the responsible driver or a direct action against his or her insurer or a claim against the insurer’s local claims representative, the measure would be that applicable in the state of the accident.

32 In the case of a claim against the driver responsible or his or her insurer or the guarantee fund of the state of the accident, such compensation would normally be measured in and under the law of the state of the accident.

…

the reference to applying the laws of the member state to the payment of compensation is further confirmation of an intention that the law of the state of the accident should govern liability and the measure of compensation.

33 … clauses 7.2 and 8.2 of the agreement between compensation bodies and guarantee funds expressly provided that the compensation body established to give effect to those articles was to “apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred”, and, further, indicated that the final paying guarantee fund might refuse reimbursement to the extent that the compensation body had “not observed the rules of applicable law”. Gilbart J referred to this agreement as a “private agreement” that “cannot be used to interpret the Directives or the Regulations”, and Mr Beard pointed out that it post-dated the Fourth Directive. This is in my opinion to undervalue the role of the agreement and to view matters over-technically. Clauses 7.2 and 8.2 of the agreement introduced in relation to compensation bodies provisions paralleling those applicable under the predecessor green card and motor insurance bureaux schemes. The making and approval by the European Commission of the agreement containing such clauses were pre-conditions to the coming into force of articles 6 and 7 of the Fourth Directive. They can and in my opinion should be seen as part of a consistent scheme, to be viewed and construed as a whole.

34 A further indication of the way in which the scheme was intended to operate is provided by clause 7.3 of the agreement. According to clause 7.3:

… "The guarantee fund of the member state in which the accident took place, even though it is not responsible for the reimbursement described in section III below, shall provide, upon request, to the compensation body to which a claim for compensation has been made, all necessary advice assistance and information-in particular on the content of the

applicable law”

…

The rationale behind clause 7.3 is clearly that the guarantee fund of

the member state of the accident will be able to provide the necessary

information about the applicable law of that state to enable the

compensation body in the victim’s state to be able to settle the victims claim in accordance with that law.”

The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim’s entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident.

35 It would not be consistent with the scheme of the precursor green card system or with the scheme of the series of European Directives and associated agreements from 1972 onwards, for the compensation body established and acting under article 6or 7of the Fourth Directive to provide compensation other than in accordance with the law of the state of the accident.

36 Further confirmation of this intention is present in the express provisions of articles 6and 7. First, the provision in article 7 for compensation to be provided in accordance with the provisions of the Second Directive requiring each member state to ensure compulsory insurance in minimum amounts and to set up or authorise a guarantee fund to cover property damage or personal injuries caused by unidentified or uninsured vehicles is a yet further pointer towards the intended link between the compensation available in the state of the accident and that available from the victim's local compensation body.”

One of the purposes of the scheme is to ensure that an injured party receives the same level of damages whether the driver is uninsured or insured. Further, the difficulty of applying different national compensation schemes is that the injured party may receive more in its state of residence than in the state of the accident. This produces the paradoxical result that the compensation body in the state of residence would pay out more than it could recoup from the state of accident guarantee fund. As the court stated at para 37:

“37 Second, the provisions of article 6 and 7 regarding reimbursement are significant. Under article 6(2) what is clearly envisaged is that the compensation body in the state of the victim's residence should be able to recover from the compensation body in the state of the insurer the whole sum that the former compensation body has paid out to the victim. The latter compensation body is then subrogated to the victim's rights against the responsible driver or his insurer ""in so far as the compensation body in the member state of residence of the injured party has provided compensation''. But, on the analysis accepted by the Court of Appeal in the Jacobs case [2011] 1 WLR 2609and supported on this appeal by Mr Beard, there is no necessary correlation between the amounts paid out by the compensation body of the state of the victim's residence and that recoverable from the compensation body of the state of the insurer or that to which that latter compensation body is subrogated. Clauses 7.2 and 8.2 of the agreement between compensation bodies and guarantee funds would bar the compensation body which paid the victim from recovering more from the compensation body of the state of the insurer than was payable in respect of the claim under the law of the state of the accident.”

This would operate unfairly on the resident state compensation bodies.

“39 I conclude, in these circumstances, that the scheme of the Directives is clear, and that they do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim's entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference to the measure of liability of the body or person ultimately responsible, which route is chosen.”

Returning to the question of the applicability of Rome II, while the defendant’s case is that it is not relevant, the claimant points to a particular passage of the Moreno judgment. Lord Mance says at paras 20-21:

“20 Turning to regulation 13, directly in issue in Jacobs and now on the present appeal, Moore-Bick LJ concluded first that it must contemplate the victim being able to show the existence of liability on the part of the person responsible for the accident. The answer on this point lay, he considered, in the words ""shall compensate the injured party in accordance with the provisions of article 1"" of the Second Directive. He went on, at para 32:

‘I think it is reasonably clear from the recitals to the Second Directive that its purpose was to assimilate the position of the victim of an unidentified or uninsured driver or vehicle to that of the victim of an identified and insured driver or vehicle; it is not its purpose to require the establishment of a system of no-fault compensation. It is, therefore, implicit in the scheme of the Second Directive that the victim must be able to establish that the driver is liable to him in respect of his injuries, but whether that requires proof of fault will depend on the law of the country in which the accident occurred. The reference in regulation 13(1)(c)(ii) to an insurance undertaking which insures the use of the vehicle assumes the existence of a liability on the part of the driver which ought to be, but is not, covered by insurance. It follows, in my view, that the obligation imposed on the bureau by regulation 13(2)(b) to compensate the injured party in accordance with the provisions of article 1 of the Second Directive carries with it the implicit proviso that the injured party must be able to show that the driver is liable to him. As in the case of a claim under regulation 12, that is a question to be determined by reference to the applicable law identified in accordance with the appropriate conflicts of laws rules. At the time the 2003 Regulations were made the applicable rules were those of the Private International Law (Miscellaneous Provisions) Act 1995, but since the introduction of Rome II, the rules set out in that Regulation will apply and will normally lead to the application of the law of the country in which the accident occurred.’

21 There is no reason to differ from this analysis. Nor is there any reason to differ from Moore-Bick LJ's further analysis in paras 33—34 of the basic reasoning behind the expression in regulation 13(2) ""as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain.”

Therefore, Moore-Bick LJ cites Rome II in terms. Further, and also in terms, Lord Mance approves of Moore-Bick’s analysis. It seems to me clear. Here is the Supreme Court endorsing the analysis of the Court of Appeal that to decide which law applies in a regulation 13 compensation case, the trial court should normally follow the Rome II regulation, which in turn leads to the application of the law of the country “in which the accident occurred”. This is the obvious result of an application of article 4 of Rome II. Article 4 is found in Chapter II of Rome II, the section on “Torts/Delicts”. It provides a “General rule”:

“Article 4

General rule

1.

Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

2.

However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3.

Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”

Article 4.2 applies to a situation where, for example, a pedestrian in France is injured by an uninsured driver when both have habitual residence in Great Britain. In such circumstances, compensation is measured using English law. Article 4.3 is the so-called “escape clause”, what we might call a safety valve, that disapplies “the law of state of accident rule” where a “manifestly closer connection” to another state exists “in all the circumstances”. However, it is article 4.1 that is relevant to DHV’s case.

The effect of recital 33

Claimant. Recital 33 is relevant to the level of damages recoverable by DHV from the Spanish court because it is part of a directly applicable European regulation. It reflects an important concept fundamental to justice in DHV’s case, compensation for the actual losses incurred. Recital 33 must have some effect and cannot be merely exhortatory.

Defendant. Recital 33 is incapable of altering substantive law. The recital is “toothless” and is the result of a compromise during the negotiations during the regulation passage. The “short route” identified by the claimant is to ask what the Spanish court would do. This does not work because if the Spanish court were considering a purely domestic case with a Spanish resident injured party and driver and based vehicle, recital 33 would have no application as there is no conflict of law, which is the purpose of Rome II.

I start on this sub-issue by examining the status of words used in European Union legislation. Halsbury, Volume 47A (2022) states the following in respect of the meaning of words in European Union legislation at para 163:

“The preamble is an aid to the interpretation of the measure; but a recital in the preamble is not a legal ruleand words used in the preamble cannot alter the scope of the provision being construed where they are not endorsed by the latter.”

Authority for the proposition that a recital is not a legal rule is provided in Case 215/88 Casa Fleischhandel v Bundesanstalt für Landwirtschaftliche Marktordnung [1989] ECR 2789 (“Casa Fleischhandel”). There the European Court of Justice (“ECJ”) states at para 31:

“Indeed, a recital in a regulation, although it may shed light on the interpretation to be given to a rule of law, cannot in itself constitute such a rule.”

As noted, the Preamble to Rome II consists of 40 recitals. Recital 24, for example, explains that “Environmental damage’ should be understood as meaning adverse change in a natural resource”. Recital 27 explains that since Member States vary greatly in their concepts of industrial action, as a “general principle … the law of the country where the industrial action was taken should apply.” It is clear that these recitals, valuable though they are, provide explanation and interpretation and do not in themselves constitute substantive rules. This quality is reflected in recital 29 which provides:

“29.

Provision should be made for special rules where damage is caused by an act other than a tort/delict, such as unjust enrichment, negotiorum gestio and culpa in contrahendo.”

This recital calls for the provision of “special rules”, but is not a rule, consistent with the ECJ in Casa Fleischhandel. In similar vein, recital 21 states that “The special rule in Article 6 is not an exception to the general rule in Article 4(1) but rather a clarification of it.” This supports that the rules are in the articles and the recitals explain and interpret them. Dickinson is described by the Court of Appeal in Wall v Mutuelle (para 16) to be a “valuable monograph”, and therefore this court has examined the text carefully. Dickinson notes uncontroversially at para 3.76 that “the Regulation is directed at judicial bodies within the Member States that may be called upon to determine disputes concerning non-contractual obligations.” Dickinson states at para 14.26 that “in its applications to claims arising out of road traffic accidents, Art 15(c) must be read together with Recital 33.” Article 15 sets out rules on the “Scope of the law applicable”.

“The law applicable to non-contractual obligations under this Regulation shall govern in particular:

(a)

the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;

(b)

the grounds for exemption from liability, any limitation of liability and any division of liability;

(c)

the existence, the nature and the assessment of damage or the remedy claimed …

The text then details the legislative history of the passage of the regulation. It is clear that the European Parliament had proposed an amendment to “apply the principle of restitutio in integrum, having regard to the victim’s actual circumstances in his country of habitual residence.” This was rejected. The compromise, such as it was, amounted to a reminder in recital 33 to “take into account all relevant circumstances … including … the actual losses”, and in particular the actual costs of after-care and medical attention in the country of habitual residence. This placement of the reminder in the preamble at recital 33 is rightly described by Professor Symeonides as “precarious” (see Dickinson at para 14.30). In the end, Dickinson concludes at para 14.31:

“Nevertheless, as a mere recital in an instrument dealing with rules of private international law, [recital 33] cannot possibly modify the rules applicable to the assessment of damages in Member States, and it cannot alter the way in which the Rome II Regulation … approaches these questions.”

The terms of recital 33 make it clear that the foreign court quantifying damages should do so “According to the current national rules on compensation” and not outside or beyond those national rules. The national rules must here be the national rules of Spain (lex loci). The claimant relies on what Attorney-General Varz says in Lazar v Allianz SpA C-250/14. At para 82 of his Opinion he says:

“Lastly, although the lex loci damni may, in some circumstances, be considered to be unfavourable where the more or less direct victims have their habitual residence in a country other than the country in which the accident occurred, recital 33 in the preamble to the Rome II Regulation specifically requests the court seized to take into account, when quantifying damages for personal injury, ‘all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention’. The court is therefore requested, as far as possible, to take into account, in particular in assessing damage suffered by persons who are not resident in the country where the fatal accident occurred, differences in the standard of living and the expenses actually incurred or borne by those victims in their country of residence.”

It should also be noted that Rome II ends with three “statements” from the Commission. The second is about road accidents. It states:

“Commission Statement on road accidents

The Commission, being aware of the different practices followed in the Member States as regards the level of compensation awarded to victims of road traffic accidents, is prepared to examine the specific problems resulting for EU residents involved in road traffic accidents in a Member State other than the Member State of their habitual residence. To that end the Commission will make available to the European Parliament and to the Council, before the end of 2008, a study on all options, including insurance aspects, for improving the position of cross-border victims, which would pave the way for a Green Paper.”

Dickinson states that any future “study” by the Commission may “lead to reform of Member States’ substantive rules regulating compensation for road traffic accidents, or to adjustment of the rules applicable in the Rome II Regulation.” The court has not been provided with any information about any further developments in the European law in line with the Commission’s statement. As Dickinson notes, “In this process, Recital (33) should be seen as no more than the point of embarkation.”

Wall v Mutuelle is relied on by the claimant and said to be the only case in which our courts have considered recital 33 of Rome II in respect of the assessment of damages. The claimant points to the judgment of Longmore LJ, who states at para 11:

“This recital does appear to contemplate that, at least in road accident cases, the court determining compensation should have regard to loss incurred in the state of the victim’s habitual residence in particular the costs of after-care and medical attention. That is no doubt partly because they are matters of fact, often calculated by the court of habitual residence and, inevitably, according to rules of evidence and procedure which may be different from rules of evidence and procedure applicable in the state where the damage occurs.”

He continues at para 29:

“In the light of recital (33) to the Regulation, I do not consider that the same evidence is necessary or called for in respect of the pecuniary losses suffered by the claimant.”

The claimant’s submission is that Longmore LJ “can only” have concluded that losses would be “evidenced, assessed and calculated by reference to the domestic experts.” Longmore LJ said at para 16:

“16 It is therefore gratifying that Professor Andrew Dickinson in his valuable monograph The Rome II Regulation: The Law Applicable to Non- contractual Obligations (2008) appears to agree. In chapter 3 on ""Foundations and Scope'' he says at para 3.39:

‘the direction to "apply' the "law' of a particular country must not be understood as requiring the member state court to put itself in the position of a court of that country and to decide the case as that court would have decided it. Instead, it requires the member state court to take from the legal order of the country whose law applies rules of the kinds specified, in particular, in article 15 (scope of the law applicable) and to import those rules into its own legal order.’”

“Rules” as to the assessment of damages are therefore to be “imported”; if there is a rule as to what kind of loss is recoverable, that rule is to be imported. But mere methods of proving recoverable loss are not to be imported. Christopher Clarke LJ said at para 49:

“I agree with Longmore and Jackson LJJ that the evidence should not be confined to rules which dictate a result or to black letter rules; but should extend to judicial conventions and practices such as tariffs, guidelines or formulae used in practice by foreign judges in the calculation of damages, as suggested by Professor Dickinson.”

Wall v Mutuelle does not decide that recital 33 permits an English judge to go beyond what a “foreign” (in this case Spanish) judge would do. The reference to recital 33 by Longmore LJ is confined to para 29. He does not explain how recital 33 results in the outcome all three judges agree on: that English evidence and procedure should be used. There is no explanation of what legal status recital 33 has or its legal force, let alone whether or how it may permit an English judge to go beyond what a judge in the state of accident would do or the lex loci ostensibly stipulates in stated limits in a compensation scheme. Equally, there is no reference to recital 33 by either Jackson or Christopher Clarke LJJ. The Court of Appeal’s judgment, to the extent that is relevant to this case, emphasises:

Thus, and returning to the propositions identified in Issue 2 and combining them, I do not construe the Baremo provisions for myself in an act of autonomous interpretation, but seek to identify how a Spanish judge would construe them. In that determination of Spanish construal, I take into account not just “black letter” law, but practices and conventions, where evidenced, that are used in Spain, not England. It was put succinctly by Jackson LJ at para 46:

“the [English] court will establish the facts using English evidential practices. It will then assess damages in accordance with French law (‘law’ being broadly construed, as set out above).”

I cannot accept the argument that Wall v Mutuelle is authority for any proposition that an English court may award compensation in excess of what a Spanish court would award. The claimant is right to acknowledge in his skeleton argument at para 54 that it is “not crystal clear” from Rome II or any decided case what outcome difference recital 33 makes. In Wall v Mutuelle the Court of Appeal recognised that the English judge should apply French guidelines and French judicial practices and subject them to the same margin of discretion as a French judge would have. In that case it was agreed by the parties that a French judge has a discretion to depart from the guidelines, and hence an English judge applying French law would have the same discretion, not arising independently out of the English law, but directly from French practice. Thus, the Court of Appeal stated at para 28 that the English trial judge should “be informed of what a French judge would regard as an appropriate starting-point.” At root, what the Court of Appeal was deciding in Wall v Mutuelle is what evidence should be admitted in an English trial, not whether the English court could award damages beyond what a French court would. Therefore, Wall v Mutuelle is of negligible support, if any, to the claimant’s case on this point.

The court’s conclusion is reached because of several component parts. For the sake of clarity, and because of the high importance of this issue to so much of this case, I set them out distinctly.

First, I accept Mr Vincent’s submission that Rome II is part of Spanish law and directly applicable to it. But that only takes the claimant so far. I concur with the defendant’s submission that as a matter of historical record, the 2003 Regulations did not come into effect because of Rome II but predated it. Indeed, the conflict of laws rules were expressed at the time of the coming into force of the 2003 Regulations in the Private International Law (Miscellaneous Provisions) Act 1995. Following the enactment of Rome II, however, that regulation held sway. There is force in the claimant’s submission that a conflict of laws problem may be “quickly answered but it is still a conflict situation.” I find that in Moreno the Supreme Court recognised the applicability of Rome II to a comparable regulation 13 case to answer the question of which law should apply in a conflict of laws situation. Professor Carreras agreed that Rome II is directly applicable in Spain and “hypothetically” Rome II applies to govern which national law applies, even if it would never be mentioned in the proceedings.

Second, contained within this conclusion is an acceptance of the defendant’s submission, over the counter-submission by the claimant, that the observation of the Supreme Court in Moreno at paras 20-21 is obiter. This is because at no point in the judgment did the Supreme Court engage with, discuss and explicitly decide in light of competing submissions that Rome II did apply to Ms Moreno’s case. The question was what law applied to assess damages, English or Spanish, not the legal route whereby that national law was applicable. In this sense, the observation about Rome II was incidental to the decision. It is properly viewed as obiter. However, this is to undervalue the force of obiter from the Supreme Court. It is highly persuasive. I find no sufficient difference between the factual situations in Ms Moreno’s case and DHV’s to distinguish Moreno or put aside what the Supreme Court has clearly indicated about Rome II. Therefore, I judge that Rome II does apply to DHV’s case which is brought under regulation 13, just as Ms Moreno’s was. Rome II is here relevant to determining which law should apply in this conflict of laws situation. By virtue of article 4.1 of Rome II, the applicable law in DHV’s claim is the law of the state of accident, that is, Spanish law.

Third, I find that recital 33 is not and cannot amount to a legal rule. Recital 33 is situated in the preamble to Rome II. No one has sought to persuade me that a Spanish court, mindful as it would be of judgments of the ECJ, would differ from that position and elevate this recital into a legal rule. The highpoint of the claimant’s submissions is that recital 33 “should have some effect”. The claimant submits that this recital is “an outlier” that goes beyond “mere encouragement”. I find that given its status, recital 33 while relevant to this case, possesses necessarily limited legal effect. The difficulty the claimant faces is that it is obvious that a recital in a preamble is just that, of plainly limited value, and not a legal rule, so what the claimant attempts is to extract the maximum effect without crossing the line into a legal rule, which Mr Vincent sagely recognises as a limitation. While it can inform the interpretation of Rome II and its application (for example, to article 15(c) on compensation), it cannot change substantive Spanish law. While it acts as an exhortation and reminder about one aspect of the philosophy underlying Rome II, it has no more than persuasive force or interpretive weight. I find that this is the conclusion a Spanish court would reach. I note the suggestion of Professor Symeonides cited in Dickinson at para 14.30 that it may be that recital 33 is of exhortative value in borderline cases where under article 4(3) the “escape clause” may be invoked where there is “manifestly” a closer connection with a country other than indicated by articles 4(1) and 4(2).

Fourth, as a result of these conclusions about the applicability of recital 33, I do not need to determine the claimant’s more drastic fallback position that the 2003 Regulations should be “rewritten” and words “struck out” to make them compatible with Rome II and/or recital 33. There is no need for this act of extensive legal editorialising. I have found that Rome II and recital 33 are relevant to DHV’s case.

Fifth, I have been provided with no comparable case where a Spanish court has applied recital 33 or explained any relevance, let alone enhanced relevance, this recital has had to a road accident claim. There is no authority to support the application of recital 33 to the assessment of compensation due to a foreign resident person injured in Spain whose actual losses in the state of habitual residence outstrip what is identified explicitly in the Baremo limits. Put another way, there is no Spanish authority to support the use of recital 33 to award compensation for actual losses in the state of habitual residence at a greater level than would be awarded to an injured person in Spain.

Sixth, since Issue 11, as framed by the parties, invites the court to consider recital 33 alone, I do. I find no credible basis to conclude that because of recital 33 a Spanish judge would award compensation to an English resident injured party for actual losses that go beyond what would be awarded under the Baremo to a Spanish resident. This is because, as detailed in the preceding analysis, recital 33 carries little weight, being a recital in a preamble that cannot change substantive Spanish law about the compensation award – and the parties agree that substantive Spanish law applies to DHV’s case.

However, I am conscious that this is only part of the claimant’s argument. He further argues that actual losses in the state of his habitual residence in excess of the specified Baremo limits can be compensated due to article 33 of the Baremo. It is this argument that the court must next consider.

The effect of article 33

As to how a Spanish court would approach article 33 of the Baremo and how an English court should approach this question, the court makes the following 12 observations, weaving in the arguments and counterarguments of the parties.

First, the problem about the existence of limits to compensation in a court of habitual residence when the applicable law is that of the state of accident is one of some antiquity. In all the authorities put before the court and the cases cited in them, one can track the evolution of this issue before the courts. As long ago as 1971, the House of Lords in Boys v Chaplin [1971] AC 356 (“Boys”) considered what Lord Hodson at 373A called “one of the most vexed questions in conflict of laws”: which law is to be applied in the forum (trial) court after a road traffic accident abroad. In Boys, two British servicemen in Malta were involved in a road accident in 1962 and the injured party brought the claim in England. The court decided that English law applied. Subsequently, the Court of Appeal reached similar conclusions in Jacobs and Bloy v MotorInsurers' Bureau [2014] 1 Lloyd's Rep IR 75. Both these latter decisions were overturned by the Supreme Court in Moreno. What is noteworthy is that as long ago as Boys, Lord Wilberforce, while dissenting said at 389D-E:

“But in relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or limiting, or qualifying recovery of damages because of some relationship of the defendant to the plaintiff, or in respect of some interest of the plaintiff (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to.”

The law in England now is that it is normally the law of the state of accident that applies.

Second, it appears that it is settled by Moreno that the compensation awarded in these conflict of laws road traffic accident cases should be the same irrespective of whether the claim is pursued in the state of accident or of habitual residence. Therefore, the injured party was entitled to the same compensation, irrespective of whether the claim was brought against the driver responsible, the driver's insurer, the motor insurance bureau of the state of the accident or the compensation body established in the victim's state of residence; and that the Directives did not leave it to individual member states to provide for compensation in accordance with any law which they might choose. Instead, compensation should proceed on the basis that quantum would be measured on a consistent basis, by reference to the law of the state of the accident. This was one of the high objectives of Rome II: added certainty and predictability and preventing forum shopping.

Third, mindful of the logic of Moreno, the claimant argues that while the compensation that DHV is entitled to should be the same whether his claim is determined in Spain or England, article 33 of the Baremo would permit a Spanish court to make an award of actual losses in England, even if they exceed the expressly stipulated limits of the Baremo scheme. On this, I must observe that there is no authority from Spain laid before this court indicating that article 33(2) resulted in the Spanish court awarding compensation losses beyond the stipulated Baremo limits for a Spanish “domestic” case (parties Spanish residents, vehicle based in Spain). For reference, article 33(2) provides:

“2.

The principle of full reparation is intended to ensure full compensation for the damages suffered. Compensation under the system considers any personal, family, society and economic circumstances of the victim, including those affecting loss of income and loss or diminution of earning capacity.”

Fourth, there is no Spanish authority in which article 33(2) has resulted in compensation being awarded for actual losses in a country of habitual residence outside Spain beyond what is specified in the Baremo limits.

Fifth, and tellingly to my mind, if article 33 had the legal effect that the claimant contends for it is probable, highly likely or even inevitable that there would have been cases out of the hundreds or thousands of cases litigated in Spain since the inception of the Baremo in which article 33 would have been invoked to go outside the limits of the tables and stipulated awards. Not a single case has been brought to this court’s attention. That is powerful inferential evidence about the true status that a Spanish court would grant article 33. Ms Astigarraga was asked in terms by the court to produce any decided Spanish case that supported her opinion. She provided none. This is not surprising: Professor Carreras searched diligently “for hours” to see if there was any decided Spanish case in which recital 33 or article 33 had been used in the way the claimant sought. The Professor examined “300 or 400 cases”. In none of them did a court award damages in a way that a “foreign court” (state of habitual residence) would. When he was asked about the compensation being awarded beyond the Baremo limits, he replied:

“There is no judge in Spain that has ever applied foreign damages in Spain. When I started practising it was before Baremo. You could get very high compensation. The insurance industry was about to collapse. So the first Baremo system was introduced. It was not good and was revised in 2015. There was then a good system of compensation and it was “full reparation”, but within the limits of the Baremo.”

Sixth, the prevailing legal situation in which there is no use of article 33.2 to award compensation beyond Baremo limits is inevitable given the express terms of article 33.5. It provides:

“5.

The objective nature of the valuation of the damage means that compensation is paid in accordance with the rules and limits established in the system, so that compensation cannot be set for concepts or amounts other than those provided for therein.”

Article 33 has to be read as a whole and particularly in the context of its immediately neighbouring provisions. Therefore, article 33.2 must be read in the context of article 33.5. This latter provision makes it plain that compensation “cannot” be awarded for amounts not provided for within the “rules and limits established” in the Baremo. I cannot accept that a Spanish court would find that open-ended expenses incurred in a foreign country significantly in excess of the Baremo limits would be compensable under Spanish law. I am confirmed in that conclusion by the total absence of any Spanish decision to that effect.

Seventh, the consequence of the lack of support in decided Spanish cases is that the claimant urges this court to apply Spanish law in a way that, on the submission of the claimant, “may mean pushing the envelope” and which may be “at the extreme end of any discretion”. Acknowledging that “there does not appear to be a reported [Spanish] case” in support of the claimant’s argument, Mr Vincent nevertheless invites this court to do something the Spanish court “even very probably” would not do and adopt a course it is “very unlikely” that the Spanish court would take. I cannot think that this is a principled or plausible course for the High Court in England to take or the proper way to look at the legal test, the proper formulation of which I turn to now.

Eighth, I follow what the Privy Council recently said in Perry v Lopag Trust Reg No 2, (Cayman Islands) [2023] UKPC 16 (“Perry”) where Lord Hodge said at para 11 (emphasis provided):

“11.

First, the task of the trial judge when there are disputed questions of foreign law is to determine what the highest relevant court in the foreign legal system would decide if the point were to come to it: Dexia Crediop SpA v Comune di Prato [2017] EWCA Civ 428; [2017] 1 CLC 969 (“Dexia”), para 34; Morgan Grenfell & Co Ltd v SACE Istituto per I Servizi Assicurativi del Commercio [2001] EWCA Civ 1932 (“Morgan Grenfell”), para 50. It is not sufficient for a party to identify a judgment of a foreign court of first instance which may be on point and assert that the task of the appellate court is simply to analyse that judgment.”

For completeness, I set out what the Court of Appeal said in Dexia and Morgan Grenfell and provide the necessary emphasis. In Dexia, a joint judgment, the Court of Appeal said at para 34:

“Approach to issues of foreign law

34.

English law treats foreign law as a question of fact proved by the evidence of suitably qualified experts in the relevant foreign law. In the case of disputed questions of foreign law, the task for the trial judge is to determine what the highest relevant court in the foreign legal system would decide if the point had come before it.”

In Morgan Grenfell, a judgment to which all the court substantially contributed, Clarke LJ said at paras 50-52:

I have set down the way that these three higher courts have expressed the test to show the commonality of approach. The Privy Council recently, the Court of Appeal in 2001 and then again in 2017, make clear that this court’s task is to determine what the highest Spanish court would decide. The key word is would. It is not my task to determine what the Spanish court may do, or is very unlikely to do, but what it would do. This must mean what the Spanish court is likely to do or would probably do. It is not about conjecturing what it may decide at “an extreme end of any discretion”. The claimant’s approach seems to me to be fanciful and wrong.

Ninth, I return to the expert evidence on the Spanish law. Professor Carreras stated in his report at para 128:

“Therefore, it is not possible to invoke the principle of full reparation as an absolute and unlimited rule, but rather as a relative and limited rule, subject to the criteria and limits established in the Baremo itself.

This is the interpretation that has been consistently followed by the Supreme Court, which has repeatedly affirmed that the Baremo constitutes a closed system, with its own logic and coherence, which must be applied integrally and exhaustively, without resorting to other legal sources or criteria.”

As Ms Wyles submits, Professor Carreras was not challenged on this opinion at 128. It is difficult to conceive how he could credibly have been given the lack of support for Ms Astigarraga’s position, but also her position in cross-examination. Para 128 of Professor Carreras’s report was put to Ms Astigarraga. She agreed it. Ms Astigarraga was explicitly invited in terms by the court to provide any authority that supported her opinion about recital 33 and article 33, and did not. I have made it clear how I strongly prefer the evidence of Professor Carreras and harbour significant doubts about the credibility and authoritativeness of Ms Astigarraga. It is also highly relevant that in their joint statement the two Spanish law experts agree at paras 75c and 77:

“75c. Objectivity in the valuation of the damages which means that compensation is paid in accordance with the rules and limits established in the system, so that compensation

cannot be set for concepts or amounts other than those provided for in the system.

…

77.

Both experts agree that in order to carry out the assessment of damages in objective terms, this must be done, in any event, according to the rules and limits established in the

system, the so-called Baremo.”

Therefore the joint agreed expert evidence is that damages must be assessed “according to the rules and limits” of the Baremo. Therefore, the claimant’s argument must be that article 33.2 authorises the Spanish court to go beyond the “limits” established in the Baremo even if it is “very unlikely” that the Spanish court would do so. Alternatively, the claimant must resort to the submission that article 33.2 removes the explicit Spanish limits and creates open-ended compensation commensurate with actual losses incurred in England. There is no Spanish authority to support this submission. I find that the true legal position in Spain is as Professor Carreras told the court:

“The Baremo prescribes tables. Some people will do well out of those table limits, others less well. But it cannot be seen as objectively “full reparation” although that is the avowed spirit of the Baremo and its purpose. It is full reparation within the scheme or there would not be a scheme. Everyone in Spain gets the same, no matter where you live in Spain. There is not one Spain but many Spains. The cost of living difference between Extremadura and Barcelona is very great, but the injured person will get the same in both places. If there is a system with maximums, then it cannot provide full reparation by definition.”

Therefore, even in Spain, there may be “full reparation” in Extremadura, but not in Barcelona, where the associated costs are higher. Nevertheless, the Spanish court would award the same in accordance with the Baremo tables and limits. This is strong supporting evidence that it is highly unlikely, as the claimant accepts, that the Spanish court would make an award for actual losses in excess of the Baremo limits and tables.

Tenth, I take recital 33 of Rome II and article 33(2) of the Baremo together and see if in conjunction they permit the conclusion the claimant contends for. They do not. There is no decided Spanish authority which deploys the two provisions together. Nevertheless, I have identified the inherently limited legal effect of a recital, as set out in Halsbury and by the ECJ in Casa Fleishhandel and have been provided with no Spanish case which decided that actual losses in the state of habitual residence should be awarded where they exceed the expressly stated limits of the Baremo.

Eleventh, I do not disapply the Baremo in the way the Spanish court would apply it. This is dealt with in article 26 of Rome II. This is where the applicable law of state of accident is disapplied by the forum court (here state of habitual residence) where it is “manifestly incompatible with the public policy (ordre public) of the forum”. I have received no argument about this, but address it for completeness.

Twelfth, and in overall conclusion, I find that a Spanish court would not award DHV compensation for his actual losses in England if they exceed what is set out explicitly in the Baremo, despite the words of article 33.2, but would be limited by the “rules and limits” established by the Baremo, as article 33.5 makes clear. I find that a Spanish court would view article 33.5 as the practical limit and outer boundary of the article 33.2 ambition. The claimant sought to persuade the court “to apply Spanish law even though it has not been applied in the cases of Professor Carreras or Ms Astigarraga like that or indeed in any previous case in Spain”. In the claimant’s skeleton argument at para 50, it is submitted that

“the English court should do what is possible under Spanish law to achieve the result envisaged by Recital 33 – not just what a Spanish Court would normally do, or probably do – or even very probably do.”

I find that such an argument is contrary to the approach of the Court of Appeal in Dexia and Morgan Grenfell and the Privy Council in Perry. It is misconceived and must be rejected. The claimant’s encouragement that the court should do something at the extreme limits of discretion, something that the Spanish court was unlikely to do, seems to me to cut across the very grain of the deliberately formalised and carefully calibrated Baremo system, constructed to promote predictability, clarity and consistency. Points are awarded, material factors enumerated, tables with scales and figures provided. The concept of an expansive Baremo is inimical to the system design. It exudes capriciousness.