But for Brexit, the answer would be very easy. However, we have left the EU so the answer gets a whole lot harder. The Spanish driver was insured by AXA of Spain; AXA UK is its handling agent for foreign claims and that is one bit of good luck.
AXA UK’s handling agents are far more sensible than a lot of UK handling agencies and since we have left the EU, the directive which meant an EU insurer had to appoint a UK handling agency no longer has force in the UK. Luckily for you, there is a UK agency and they are usually pretty reasonable. However, dig yourself in for a long wait, and with this in mind get your bike repaired by your fully comprehensive insurer because you could easily find yourself waiting many months as AXA Spain and AXA UK coordinate between themselves.
With or without Brexit, all EU member states have pretty similar rules on what constitutes negligence, and the Spanish Civil Code is clear: well, as clear as a translation of a legal text into English can be. However, if one carries out an act or omission which by negligence causes harm, then the wrongdoer is liable for losses flowing from that negligence. It is a different way of saying the same thing in English law, Scots Law, Belgian Law, French law…
In Spanish law, your losses are recoverable. If it wasn’t for Brexit, you could have brought your claim here, applying Spanish law in front of an English judge with the Spanish insurer defending the claim under English costs rules which would have allowed you to bring the claim on a no-win, no-fee (which is unlawful in Spain) basis.
Your claim could have been brought under English Small Claims procedure but would be likely to be taken out of small claims because as a matter of law, claims brought in foreign law must have the foreign law proved, so the judge would require at least a report as to the law of Spain.
Now you will have to bring your case in Spain. Following a very recent Supreme Court decision – at the time of writing the judgment had only just been handed down – the Court held that where the damage was sustained in England or Wales the English courts could have jurisdiction subject to various tests which are way too detailed to go into here. You do not have that option because your entire loss started and finished in Spain. Therefore, your options are to seek to claim back your losses from the Spanish insurer, in Spanish, in the Spanish system. And if the insurer does not play ball, sue it in the Spanish courts with a Spanish lawyer. Good luck.
Your second option is to go via AXA UK but you have no remedy in law if it does not want to play nicely. You cannot sue AXA UK. Even if it is superhelpful, it will still be a slow process.
Your third and best option, out of three less than perfect options, is to claim on your fully comp insurer, suck up your excess and hope your insurer recovers its outlay and your excess. You could have done a lot worse than get an AXA-insured driver,
The takeaway from this is if you ride on the continent, and you have a minor prang, your only practical option is using your fully comp cover. If you don’t have fully comp, you are in for a very difficult time. You will be at the mercy of foreign insurers.
There is one saving grace, though. EU insurers tend to be a lot less adversarial than their English counterparts, but also much slower at dealing with anything. The presumption in most of the EU is your insurer settles and the other guy’s insurers settle with your insurer.
RiDE Magazine January 2022