What the future holds for personal injury claims following Brexit

September 1, 2016

In the aftermath of the UK’s unexpected vote to leave the EU questions as to the next steps for the country are rife. Whilst much discussion around the effect on the legal industry is speculative at this early stage given the large stream of domestic law running from EU legislation it is safe to assume that a number of changes will be implemented in the personal injury sector.

There are several EU regulations in place that have a direct effect on personal injury claims in Northern Ireland including safety in the workplace, consumer protection and accidents abroad. Leaving the EU could result in amendments to this legislation, or indeed removal creating a roadblock for those wishing to pursue a personal injury claim.

Presently European Directives exist to protect road traffic accident victims who wish to pursue a claim for an accident which occurred outside of their own convention state. Originally this type of claim would have been governed by Schedule 1 of the 1982 Civil Jurisdiction and Judgements Act, which imported into law the Brussels Convention 1968. This dictated that if a defendant is domiciled in a convention state, he must be sued in that state, or in another convention state which has a connection with the dispute, i.e. the state where a contract is to be performed, or were the tort was committed. However following the introduction of Article 5 of the Directive 2005/14 EC, which amends Directive 2000/26/EC by inserting a new clause 16A injured parties may bring proceedings against a civil liability insurance provider in the member state in which they are domiciled.

This area has presented difficulties and proven the source of some controversy with challenges arising in cases such as Pimblett v Ethniki (2005) and Patterson v Carden (1999). The European Court of Justice put the question to bed in the judgement of FBTO Schadeverzekeringen NV v Jack Odenbreit C463/06 in December 2007. The ECJ ruled on in favour of the vexed question of whether an injured party can sue a foreign (EU) insurer in the Courts of the injured party’s domicile.  The ECJ ruling was based on purposive interpretation of the Jurisdiction Regulation( EC44/2001). This was a welcome decision for Mr Odenbreit who was involved in a round traffic accident in the Netherlands, but brought the action in Germany where he was domiciled. The local court dismissed his claim on the basis of jurisdiction, a decision later over turned on referral to the ECJ. This judgement heralded good news for those involved in a RTA outside of the EU member state in which they are domiciled.

Following our departure from the EU those wishing to utilise the above directives as a means to claim may no longer be able to do so, with the benefit of these laws and other EU motor insurance directives in question. Whilst many commentators may speculate on what will happen following Brexit, it is impossible to be sure what the implication will be. It remains down to politicians to negotiate and replace Britain’s membership of the EU. What is clear is that in the absence of any replacement of key legislation such as the above, victims of accidents will inevitably find it more difficult to recover damages.

This Article is by Mairead O’Boyle, Solicitor and Aimee Craig, Trainee Solicitor, Cleaver Fulton Rankin.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.