If you sustain an injury, or collision damage, while riding in the EU the pre-Brexit method of bringing a claim in your home jurisdiction ie Great Britain has now gone. That’s to say if you are injured within the EU the direct right of action you had pre-Brexit, and during the transition, against the insurer of the vehicle that harmed you, to be brought in a British Court using a British lawyer, with proceedings in English has now gone. Also, the database by which you or I could look up the insurer and the British agent of an EU insurer has gone.

A good fight

It is frankly unlikely that EU insurers will, allow claims to be brought in the British Courts without a fight for a couple of good, commercial reasons.

The first is that in English law the loser pays the winner’s fees and an English or Welsh biker who brings a case is largely protected against adverse costs.

The position in Scotland is different, and experience has taught me not to comment on Scots law unless I am very confident about it. However, Scottish bikers have also lost the right to sue in a Scots Court for an EU sustained injury as of right.

In my opinion an EU insurer will commercially resist the claim being brought in a British Court.

The second problem is the hassle factor of bringing a claim has risen exponentially. You will need to be very determined and have funds to bring a claim in the EU with a local lawyer and if you bring the claim yourself, fluent in the language of the jurisdiction. There will be a huge drop out rate in claims, I am sure.

Some hope

Having said all this there is a method by which the English or Scots Courts can take jurisdiction of a claim, on the basis that the loss was finalised in Britain (because that is where you are living with your injuries and their consequences).

This means the British Court has a potential jurisdiction but there is a second string, namely which court is the most convenient for all parties – if you have a collision in Belgium the police report will be in Flemish and the witnesses will most likely be Belgian.

Also, as a matter of law, the case will be tried applying Belgian Law – whether in GB or Belgium you can see there is a strong argument that the appropriate court would be Belgian.

In England and Wales, we have got used to no win, no fee with the client and their lawyer splitting the risk of a case. No win, no fee is unlawful in most EU jurisdictions so you pay your lawyer as you go, usually with a modest contribution made to their fees at the conclusion of the case by the insurer.

However, this is nothing like the level of fee recovery that an English lawyer would expect to recover in a serious injury case. You will be making that shortfall up out of your damages.

This situation is not going to change as long as Great Britain declines to recognise the jurisdiction of the European Court of Justice, a key plank of the Brexit rationale.

Andrew Dalton

Bike Magazine July 2021