Nicholls & Anor v Mapfre Espana Compania De Seguros Y Reaseguros SA [2024] EWCA Civ 718 is the unsuccessful appeal against Sedgwick v Mapfre Espana Compania De Seguros Y Reaseguros Sa [2022] EWHC 2704 (KB) which I discuss here and against Nicholls v Mapfre and Sonia Woodward v Mapfre [2023] EWHC 1031 (KB) which I discuss here.
The case centres around the difference in the Rome II Regulation between matters of procedure on the one hand and substantive law on the other hand, for the purposes of private international law and the interpretation of A1 and 15 Rome II.
In the appeals Mapfre contend that the interest payable under Spanish Insurance Contract Act Act 50/1980 is penal in nature because it rises to 20 per cent per annum in the third year of application, is payable as a matter of Spanish procedural law to encourage early settlement of disputes by insurance companies, and is a matter of procedure which is not covered by Rome II. This means that in their view the laws of E&W apply to the assessment and award of interest. Mapfre also contend that it is wrong to use the statutory discretion under either section 35A of the (English) Senior Courts Act or section 69 of the County Courts Act to allow Spanish penal interest in by the back door when it relates to a different procedural environment to which different procedural rules apply, and where the laws of England and Wales contain within Part 36 of the Civil Procedure Rules procedural provisions to encourage the early settlement of disputes.
Respondents contend that Act 50/1980 is a matter of substantive law because it is an integral part of the way in which damages and interest are assessed in proceedings in Spain for personal injuries in actions against insurers. Therefore it should be ordered to be paid as Spanish law governs the action. As an alternative, the respondents also contend that if Act 50/1980 is a matter of procedure for the purposes of Rome II, then all of the judges were right, and made no error in the exercise of their discretion, in ordering the payment of an equivalent rate of interest under Act 50/1980 as a matter of discretion under section 35A of the Senior Courts Act or section 69 of the County Courts Act.
Dingemans LJ referred to Wall, Lazar, and Actavis as most relevant authority. I agree with his view [33] which I have expressed before (eg in the Handbook, 4th ed, 4.83), that the the evidence and procedure carve-out need not be given either a narrow, strict, or broad interpretation. It simply needs to be applied as intended. [34] he argues
In order to carry out the task of determining whether the interest payable under article 20.4 of Act 50/1980 is a matter of procedure, it is necessary to undertake a consideration of Act 50/1980. That is not to discover whether the provision is considered to be substantive law or a matter of procedure under either Spanish law or the laws of England and Wales, because what is a matter of procedure for the purposes of article 1(3) of Rome II is an autonomous concept under Rome II. The purpose of undertaking a consideration of Act 50/1980 is to determine whether the issue of interest under that provision is so “intertwined” with the assessment of damages, which is a matter of substantive law under Rome II, that interest payable under Act 50/1980 should be considered a matter of substantive law and not a matter of procedure.” (emphasis added)
The test put forward by the Court of Appeal therefore would seem to be the intensity of intertwinedness of the issue at stake, with one of the elements that are clearly listed in A15’s ‘scope of the law applicable’ (here: “assessment of damage”). (Note Stuart-Smith LJ’s concurrence [79] not to look at the issue through an “overly-Anglo/Welsh prism”).
This leads here [58] to the conclusion that
the interest payable under Act 50/1980 is not a matter of procedure for the purposes of article 1(3) of Rome II, and is governed by the law applicable to the non-contractual obligation, namely the law of Spain.
[68] ff then discusses subrogation under A19 Rome II with reference [70] to relevant CJEU authority.
Of note.
Geert.
EU Private International Law, 4th ed 2024, ia Heading 4.8.
https://x.com/GAVClaw/status/1806583047313121464
