Odenbreit Rome II and the Spanish Legal System - What all PI Practitioners Should Know
02/01/2012
PI practitioners can now issue proceedings in their home country for an accident which occurred in Spain as a result of the Odenbreit decision applying (in most cases) the foreign law under Rome II, what could be the consequences of issuing proceedings in your home country following an accident that occurred in Spain?
Proceedings may go ahead in the chosen jurisdiction, but with certain exceptions, the Spanish law will apply. We explain here the various pitfalls to avoid and how best to litigate your case.
First, for all of those unfamiliar with the case of Odenbreit, this stems from a decision of the European Court of Justice in the case of Jack Odenbreit on 13 December 2007. It allows individual claimants who have been the victim of accidents in another Member State to bring a direct action in their country of residence against the relevant foreign insurer, rather than in the country where the accident occurred.
Odenbreit, therefore, determines that the injured party has the right to issue proceedings in the Court of his domicile, providing that such a direct action against the insurer is permitted by the regulations of the country where the accident occurred and that the insurer has a registered office in this Member State.
In what concerns applicable law, with the advent of Regulation 864/2007 (Rome II), the general rule is that the applicable law shall be that of the country in which the damage occurs, where the events giving rise to damage occurred after 11 January 2009, as it has been established following the recent decision in the Homawoo / GMF case.
“PI practitioners may get caught out under the belief that the case will follow their home country law and the need to involve a Spanish lawyer for advice can wait.”
Obtaining advice on Spanish law in order to comply with Rome II is not normally a priority matter and this therefore tends to be overlooked awaiting the appropriate moment in accordance with applicable procedural rules in the chosen jurisdiction.
However, what about obtaining the evidence from the Spanish expert who will raise and win the case? More pressing still, is there a time constraint for obtaining the necessary documents from Spain or even to pursue the claim? Has the practitioner checked what the case value is in Spain? Has the practitioner thought about these issues?
We have direct experience of requests for expert evidence that often come too late as this becomes a matter of Spanish Procedural Rules. Sometimes the evidence at stake is crucial to winning the case, such as the police report, valid insurance certificate or initial medical report. Waiting can be a costly mistake.
Why do you need to move fast?
The Spanish legal system is inquisitorial therefore you have a golden opportunity to let the Court do the job for you, quickly and more efficiently if you act within six months.
In a Court file you should be able to find:
1. The police report.
2. The medical report from the Spanish hospital.
3. The insurance certificate of the vehicle.
4. The full details of the defendant.
5. Identity of witnesses.
What is even more relevant is that if any of these documents are missing or the certificate of insurance is invalid, at your request the judge will have the obligation to order the party concerned to provide it in Court. This is extremely helpful considering that it is sometimes impossible to get requests through red tape in Spain; and even a potential defendant has no obligation to respond to you they can be forced to do so if requested by the enquiring judge.
As noted, you only have six months from the date of the accident to provoke or appear in these enquiry proceedings and take advantage of them. If you do not enter into these proceedings then the judge will have no obligation to open a file (unless the Road Traffic Collision (RTC) is classified as a serious crime) and enquire about the accident. At that point you will have lost a very important opportunity to build your evidence, saving you time and cost at a later stage.
Why is everything concentrated in the Criminal Court?
By law, when a road traffic collision occurs, the police must attend the scene of the accident if there are injuries involved. The police will then have the obligation to forward their report to the local court.
The same obligation lies with the hospital which attended to the injured parties. They must send the report to the local court on duty that day. As a result of this, criminal proceedings will be automatically open and depending on the seriousness of the offence committed, these may be closed if the victims do not join in or if the case is not pursued by the Public Prosecutor. It is very important to be aware of this as during the Criminal Proceedings the judge may be able to take a decision on damages thus jeopardising a potential claim in your home country.
Participation in the enquiry or even obtaining the court file is not a matter of sending a simple letter requesting it, the Spanish system is formal, strict and has set procedures that need to be followed that differ from those of other European countries.
The instructed local lawyer will need a notarised Spanish Power of Attorney signed by the victim that will allow him to act on behalf of the claimant and represent his interests before the police and the criminal courts. This is a formal procedure and requires the guidance of the instructed lawyer as to how to execute such a document.
Payments in Court
Quite often by the time you get the police report out of Court you may find that the third party insurance has already deposited a payment in Court. The purpose of making such payment has to deal exclusively with interests rather than costs.
In Spain, claimants are not allowed to make such a confidential offer as it is only reserved to the defendants which was the law in the UK before the Woolf reform.
The payment is made at a very early stage as the Law states that unless such payment is made within the first three months of the date of the accident, then interest will become due. These are quite high as there are legal interests involved. 50% for the first two years and thereafter it goes up to 20% which is more like a punitive interest.
The calculation of the payment is made on the basis of a valuation from the medical reports which are supposedly in the Court file, sent by the local hospital, to join the enquiry file.
Limitation Period
An applicable time limitation in some member states is often very short but the Spanish one is still harder on the victim. The Civil Code states that it is one year from the date of the accident.
However, guidance must be sought from a Spanish practitioner as to when this limitation starts to run; another potential pitfall that can easily be missed.
The main question to respond to is when does the year start to run, apart from the date of the accident?
• When the criminal proceedings are at an end.
• When the medical condition of the claimant has stabilised. This is a very open ended interpretation and the medical practitioners in Spain have very different criteria than those applicable in the rest of Europe.
The method of interrupting is quite diverse and you do not need necessarily to issue court proceedings. There are other methods such as formal and official notification of the claim to a third party. This has to contain specific information and advice must be sought before embarking on such a sensitive move on your own. There are other means which have become accepted from recent judgements, however the two most secured are the ones described above. Furthermore, under Spanish law there are no exceptions or flexibility for minors or mental health patients as there is in the UK. In Spain the same limitation period of one year applies.
Choice of Jurisdiction
If you play your cards right and the correct approach is done at the Court, participating in these proceedings does not imply that you have chosen the jurisdiction to bring your claim in Spain.
You would be able to withdraw from these proceedings before the Hearing takes place (with some exceptions) and reserve your civil action in order to bring this in your home country at a later stage.
The fact that the Civil damages are resolved in a criminal procedure is a subsidiary matter. In other words, only if the criminal proceedings are pursued to a conclusion will the claimant obtain their judgement on the civil damages. If the criminal proceedings are closed and civil action is reserved, then the claim will have to be subsequently issued in a civil court.
When you decide on what jurisdiction you wish to bring the claim in, it is imperative that advice on quantum is sought from a Spanish qualified lawyer, preferably a specialist, bearing in mind that where Rome II is applicable, Spanish law will generally apply to the assessment of damages.
In any event, you will be surprised as to how many cases attract higher damages under Spanish law rather than under other European standards but of course, this depends on the specific circumstances of the case.
Assessment of Damages
To give you an idea of how different the system of assessing damages is, a brief outlook of the approach the Spanish system takes and how damages are assessed, are outlined below:
In Spain, there are scales ‘Baremo’ set out by law which are used to calculate the amount of compensation a person is entitled to for a Personal Injury claim resulting from a road traffic collision.
The assessment of the victim’s general damages is therefore based on two main points;
1. Period of temporary incapacity.
2. Permanent after-effects ‘secuelas’.
The period of temporary incapacity will cover the number of days during which the victim is deemed to be medically incapacitated until the injuries have stabilised.
In this instance, under the Spanish ‘Baremo’. there is a sliding scale of damages awarded for:
• Days spent in hospital.
• Days fully incapacitated.
• Days under treatment but not incapacitated.
Furthermore, permanent after effects are also put into one of eight categories which cover the entire human body and a ninth category that refers to cosmetic damage. Within each category there are lists of injuries, each with a range of points reflecting the severity. A fixed sum is then awarded for each point calculated according to the age of the victim.
If the claimant has original receipts for the costs incurred as a direct result of the accident, then these reasonable costs can also be claimed as long as they were incurred by the claimant or on behalf of the claimant. Loss of earnings is not fully recoverable, but an amount is paid according to a multiplication factor related to the salary level.
Special consideration needs to be given to bereavement claims. In the UK the amount of bereavement damages which can be claimed by a widow or widower of a deceased whose death was caused by a third party, or for the parent of a deceased child under 18 who has never married, is £11,800. In Spain, the amounts set by the ‘Baremo’ for bereavement damages could be up to approximately €163,000 plus some extras, depending on the victim’s personal circumstances.
The dynamics of the jurisdictions and the applicable law are often changing, however, because of the cross-border effects where there is more than one country involved, practitioners must never assume that the foreign system will probably be similar to theirs or that they have sufficient time to react.
At Irwin Mitchell we are renowned for our understanding of the European context of Personal Injury claims and their cross-border implications. We can therefore provide you with expert advice and representation to assist you in protecting your client’s claim following a road traffic collision in Spain and obtain the best results in your case.
Talk to a specialist advisor today on 952 209 860 or for more information email:
imabogados@irwinmitchell.com.
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