Transnational question

Indo404

A Polish national (A) is run over by another Polish national (B) in Poland.
A is resident and domiciled in Poland. B is resident and domiciled in Ireland and has Irish insurance.
Can A sue B in an Irish court? And will an Irish court need to apply Polish law under Rome II?

ResearchWill

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.

Seems to me it's Poland.

Indo404

You are talking here about which law applies. I understand that Polish law applies but my question is about the jurisdiction.

Tom Young

lex loci delicti commissi

ResearchWill

Indo404 wrote: »

You are talking here about which law applies. I understand that Polish law applies but my question is about the jurisdiction.

Sorry I see I only answered the second part of your question 44/2001 answers the first

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:en:PDF


My reading Poland and Polish law.

Indo404

Tom Young wrote: »

lex loci delicti commissi

It is not quite so simple. You are forgetting about the overarching principle under Brussels I and the domicile principle. In addition, a Plaintiff having a choice of several articles upon which to base jurisdiction, has the option of relying on whichever article he wishes. So, he may be able to rely on article 2, or the provisions in the regulation which deal with insurance. In addition, there is an option of suing the insurance company directly under the Fourth / Fifth Motor Insurance Directives. That would take the Plaintiff (ie person who caused the injury) out of the equation and the insurance company would become the Pl.

Indo404

ResearchWill wrote: »

Sorry I see I only answered the second part of your question 44/2001 answers the first

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:en:PDF


My reading Poland and Polish law.

S e c t i o n 2
Special jurisdiction
Article 5
A person domiciled in a Member State may, in another member state be sued.
The Pl has the option. It does not say shall.

ResearchWill

Indo404 wrote: »

S e c t i o n 2
Special jurisdiction
Article 5
A person domiciled in a Member State may, in another member state be sued.
The Pl has the option. It does not say shall.

Interesting looking at the regs again

Article 2
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.

So according to that the person being sued should be sued in the country he resides in in this case that would be Ireland.

Then it says

A person domiciled in a Member State may, in another Member State, be sued:

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

So it may be that the Plaintiff has the option, sue in Ireland or if he wishes Poland.

Then we look at Rome II

TORTS/DELICTS
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.

Mmmmmmm it seems A can sue B in Ireland under Polish Law. If A and B both lived in Ireland then maybe the answer would be ireland under Irish law or if they wish Poland under Irish law.

Interesting question.

Tom Young

5(3) is the Article. I find this all a bit boring.

It's not an interesting question at all.

Read the law.

ResearchWill

Tom Young wrote: »

5(3) is the Article. I find this all a bit boring.

It's not an interesting question at all.

Read the law.

Well then don't post, as the other poster pointed out Article 5(3) is a may not a shall. While Article 2 is a shall.

I for one find it interesting as does the OP if we sit here discussing it, you don't have to partake in the chat.

I for one am interested in questions I don't know or find I don't know the answer to. You know the answer that fine, we will be fine by ourselves.

Tom Young

Grand so. Have fun.

ResearchWill

Tom Young wrote: »

Grand so. Have fun.

Don't worry we will try.

Tom Young

OPs last 3 words, did it for me. "and has Irish insurance." Just so you know why I was being a bit of a tool.

ResearchWill

Tom Young wrote: »

OPs last 3 words, did it for me. "and has Irish insurance." Just so you know why I was being a bit of a tool.

I see no issue with that bit, it made me look at the particular rules in relation to insurance, the OP sent me a link in a PM to a interesting UK article which contained a reference to Communities (Rights against Insurers) Regulations 2002. Hence why I found the question interesting.

Pat Mustard

I imagine that domicile would become a contentious issue, in reality.

Indo404

Tom Young wrote: »

5(3) is the Article. I find this all a bit boring.

It's not an interesting question at all.

Read the law.

I did. S e c t i o n 2
Special jurisdiction
Article 5
A person domiciled in a Member State may, in another member state be sued.
The Pl has the option. It does not say shall.

Indo404

Tom Young wrote: »

lex loci delicti commissi

So if an Irish person had a car accident in another EU state that person can't sue in Ireland?

Pat Mustard

Indo404 wrote: »

So if an Irish person had a car accident in another EU state that person can't sue in Ireland?

ResearchWill has already summarised the relevant law on forum shopping, in post #8.

Indo404

The Mustard wrote: »

ResearchWill has already summarised the relevant law on forum shopping, in post #8.

Yes but I'm asking Tom for his opinion.

Tom Young

Articles 8 - 14 of 44/2001 include special rules designed to address the unequal bargaining position of the insurer and the insured. The rules give the policy holder, insured and beneficiary entitlements to issue proceedings against the insurer who is domiciled in an EU Member State, either in the Courts, or convenience of access to his own domestic court, or covers certain types of risk.

Clauses related to insurance matters may be effective or ineffective only if the provisions of the Brussels I Regulation are strictly adhered to.

Indo404

Correct. Which means he could sue in this jurisdiction assuming he satisfies the jurisdictional requirements. By their nature, road traffic accidents in a Member State other than the domicile of the victim could involve any one of several articles or possible heads of jurisdiction (domicile, tort, insurance). Further, the Fifth Motor Directive provides that under Article 11(2) read in conjunction with Article 9(1)(beer) of Council Regulation (EC) No 44/2001, injured parties may bring legal proceedings against the civil liability insurance provider in the Member State in which they are domiciled. Further, article 5 of the Fifth Directive inserts a paragraph to like effect into the recital of the Fourth Directive, at paragraph 16(angel). So the European Parliament and/or the Council are giving their support to the argument that the claimant can sue in his/her home courts the motor insurer of the vehicle driven by the liable driver. It is far from simple and the Plaintiff has the option.

Tom Young

And your views on Article 23? .... there are overriding provisions therein.

Our man in Havana

The injured person would have to sue the Polish MIB as the person has a foreign insurance policy. The Polish MIB would then recover the cost from the MIBI who would then recover from the actual company who issued the policy.

ResearchWill

http://www.courts.ie/__80256F2B00356A6B.nsf/0/0A1F320A69565D7680257A0F005505C5?Open&Highlight=0,Groupama,~language_en~

The above case may answer some questions, Plaintiff Irish living in ireland on holiday in South of France knocked down in France by van owned by LA sued in Ireland, it seems to apply French law but Irish compensation figures. I have not read it in full yet.

Also good article "Accidents Abroad and the Assessment of Damages " Gerry Danaher SC Bar Review November 2012 page 109.