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
Is there any form of legal expenses cover or other travel insurance to cover the potential costs of bringing a damages or injury claim in a European country?
I found this interesting “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.” Given the limitation on costs now in the UK. And that legal costs are also losses – might it not even be beneficial to fight the case in a european court if there isn’t the legal cost limitation that we have in the UK? Should a case be successful the entire costs should be part of the calculation of the settlement anyway shouldn’t they?
A dangerous question Anon I Mouse because I have a particular interest in comparative EU law. I am that exciting. In English law, the loser traditionally pays the winner’s costs. This has been mitigated by a system called qualified one way costs shifting but this is going to drag me off down a rabbit hole. Fixed fees did not apply to overseas cases heard in England and Wales as they are by their very nature rather more complex than an English case. Every EU Nation has its own method of recovering costs from zero recovery to modest recovery of some costs but this is a matter of fundamental jurisprudence. I do not pretend expertise in every EU costs jurisdiction – I am reasonably familiar with tort law in France,Germany, Spain, Austria, Portugal, Belgium and I am a non practicing solicitor in the Republic of Ireland. For example in French cases (and it is similar in many European jurisdictions) it is the judge’s or the court’s role to decide what evidence and which experts go in front of a court. So in France, for example, if an injury case is commenced the Judge instructs a judicial medical examiner who in turn recommends the medical experts who need to report. Also the French system (as does the German) presumes a person with on going needs will be paid an on going sum – a pension – for on going needs, and the amount of that pension can change over time. There is no “closure” date. The English system proposes and expects a single lump sum which the injured person has to invest. So the French or German lawyer assists the Judge and the claimant through the process and tries, if the case is disposed of at trial, to maximise the award paid to their client (or for the insurer to minimise it) but the day to day management of the case is by the court. This system is called the inquisitorial system – the Judge makes their own enquiries which is massively different from the common law system (such as in Ireland and England and Wales, less so in Scotland) where each party presents their own evidence and a judge chooses the facts they prefer. This is the adversarial system.
However, in most EU Jurisdictions the person paying a lawyer is expected to meet the lawyer’s fees themselves – the rationale being that the Judge and the Court do most of the work in a more inquisitorial system. In France, for example, the Court may make a discretionary award of costs to a successful claimant but a French avocat (court lawyer) would be very unwise to base their fee income on what might be recovered in court cases. No win no fee is unlawful in France and the French lawyer traditionally expects to be paid as they advance the case, by way of regular interim payments.