THE USE OF EXPERT WITNESSES TO CONSTRUE EUROPEAN DIRECTIVES AFTER BREXIT: HOW THE COURT WORKS WITH “ONE OR BOTH HANDS TIED BEHIND ITS BACK”

In  Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) Mr Justice Martin Spencer considered the “nightmare position” the courts are now in as a result of the European Union (Withdrawal) Act 2018 in relation to interpreting European Directives.   This was done in relation to an appeal relating to the use of experts in a serious personal injury claim.

“Effectively what the English court is being asked to do is put itself in the position of the European Court of Justice with one or both hands tied behind its back in not having the access which the European Court of Justice uniquely has by virtue of its now twenty-seven members.”

THE CASE

The claimants were seriously injured in a road traffic accident.  They were passengers in a motor car when aged 16 and driven by a 16 year old friend who was driving his father’s car.  The primary issue in relation to the insurer’s liability related to wehther or not s.151 of the Road Traffic Act 1988 was compatible with Article 13 of Directive 2009/103/EC and related to the meaning to be given to the word “stolen”.  The accident happened at a time when European law applied.  Withdrawal from the European Union means that the issue of construction cannot be referred to the European Court.  The Defendant applied for permission to call expert evidence in relation to the construction of the Regulations.  The Master refused permission to rely on such expert evidence. The defendant appealed.

THE DEFENDANT’S SUCCESSFUL APPEAL

The judge allowed the defendant’s appeal.  The defendant was allowed to call evidence from four experts.
    1. The Vnuk case illustrates the nightmare position in which the court has effectively been put by the European Union (Withdrawal) Act 2018. If it is to take into account, in interpreting European Union directives, the EU principle whereby the correct interpretation incorporates and encompasses all the various language versions of the directive, the nightmare relates to the concept of the court being faced with translations of the directive into French, Spanish, Greek, Italian, Dutch, Polish, Portuguese, Bulgarian, Czech, Estonian, Latvian, Maltese, Slovakian, Slovenian, Finnish, Danish, German, Lithuanian, Hungarian, Romanian and Swedish.
    1. Whilst the European Court of Justice, with the assistance of the Advocate General, might have useful information about the various language versions, and the member states are invited to make submissions as to the issue of the interpretation of the directive which encompasses the translations of the particular countries in question, none of that information is readily available to an English domestic court now faced with the same issue to determine. Effectively what the English court is being asked to do is put itself in the position of the European Court of Justice with one or both hands tied behind its back in not having the access which the European Court of Justice uniquely has by virtue of its now twenty-seven members.
    1. On one view what the English court is now being asked to do is impossible. Certainly, as recognised by Mr Vincent, it would make litigation of this kind quite unmanageable were there to be twenty-seven expert reports on each side opining as to the meaning and interpretation and implementation of the word “stolen” as used in the Directive.
    1. Nevertheless in my judgment within the bounds of proportionality and the need to pursue the overriding objective, the court will require some assistance as to whether the use of the word “stolen” in the Directive is or is not to be considered narrowly as meaning the same as the use of the word “stolen” in the Theft Act and the Road Traffic Act.
    1. As a starting point it would assist the court to know whether the translation of the word “stolen” in at least some of the other jurisdictions has led to the use of a word which encompasses a meaning wider than the technical term of art in the criminal law but rather the wider use to which I referred when I used the example of a person whose car has disappeared from their driveway reporting to the police that their car had been “stolen”.
    1. In my judgment effectively Mr Vincent is right: subject to limitations, the only way in which the court can consider the correct interpretation of the word “stolen” is by having some assistance of the kind which comes automatically to the European Court through the Advocate General and the submissions of the member states. In particular, simply to put before the court the foreign terms used is of no use at all because the English court is not to be taken to be familiar with the various foreign languages to which I have referred.
    1. At the least, and I think this was effectively conceded by Mr Mead, a translation would be needed. In my judgment, though, a pure translation is insufficient to assist the court in relation to a term of legal art such as “stolen”. What is needed is an explanation to the court of how the word is used and interpreted in the particular member state in order to inform the court as to the potential correct interpretation of the word in the Directive. Of course the translation of the word in any particular State will not be conclusive, and Mr Mead is right that in the end the court will use not just the language but also the wider purposive concepts which lie behind the Directive in deciding whether this exception to the general rule is to be interpreted narrowly or more widely. But given that the language is the starting point, it seems to me that the court would be assisted by the kind of evidence which Mr Vincent seeks to put before the court as to the use of the language in certain foreign jurisdictions. Furthermore, without at all conceding that this will be regarded by the trial judge as relevant or useful, I do not exclude Mr Vincent or the second defendant putting before the court some evidence of how the Directive has been implemented in order to illustrate and explain the use of the translation, the word used, in the particular jurisdiction to convey the concept of the word “stolen”.
  1. The appeal is therefore allowed, and I will grant permission to the second defendant to rely on expert evidence of the kind to which I have referred. The application is confined to four experts, and I consider that to be proportionate in the context of these claims which involve serious injuries where the damages are liable to be measured in millions and given the importance of the issue to be determined.