Court of Appeal characterises nature of a claim under a French Code for the purposes of a choice of law dispute
The claimant brought proceedings against a French holiday company and its insurers when he was injured on holiday in France. The claimant's employer had entered into a contract with the holiday company, and that contract provided for English law and jurisdiction. However, the claimant (who brought proceedings in England) sought to rely on the French Tourism Code, which imposes strict liability for the performance of a contract which falls within the Code. By contrast, if the claim was governed by English law, it would fail because it was not alleged that there had been a breach of a contractual obligation to take reasonable care.
The key issue in this case was whether a claim under the Code was a contractual or non-contractual claim. If it is contractual, Rome I (EU Regulation 593/2008) applies and so English law is the governing law, because of the express choice of law clause in the contract. If it is non-contractual, Rome II ((EU Regulation 864/2007) applies, and so French law is the governing law because that is where the accident occurred.
The Court of Appeal has now held that the strict liability claim was contractual. The relevant article of the French Code which provides for strict liability is "an enhancement of a pre-existing right, which is founded upon the contract. It is not a different right which is unconnected to the contract....Nor does the claim only operate with the contract in the background: on the contrary, the contract is central to the claim".
Reference was made in this case to the CJEU case of Ergo Insurance v IF P&C Insurance (see Weekly Update 4/16), in which it was held that a contribution claim between insurers was determined by the non-paying insurer's contract with its insured (the paying insurer could then be subrogated to the victim's rights against the non-paying insurer) and so was a contractual claim. However, that decision differed from the English case of XL v AXA (see Weekly Update 44/15), in which the judge confirmed that, under English law, a contribution claim is based on equitable principles, and so is non-contractual. The Court of Appeal here said that those cases were different from the situation in this case, though, since there had never been any contract between the insurers themselves.
Accordingly, the claim, which was governed by English law, failed.
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