Cox v Ergo Versicherung AG
The Court of Appeal has rejected an attempt to apply English law principles to the assessment of damages in a tort claim where there was substantial difference in the level of recovery in English and German law. German substantive law of tort limits compensation to net compensation whereas English law for the relevant tort is more generous. Even though English law applied to the assessment of damages, because the result of applying English law rules of assessment would be contrary to the German substantive law, either English law would have to develop its own rules of assessment limited to what was recoverable under the substantive law or “as a matter of expediency” an English court should follow the German rules of assessment.
Furthermore the Claimant in this case had used the common German law device of assigning part of her cause of action to a third party (the Ministry of Defence) which was indemnifying her for part of her losses. According to the Court of Appeal, even if poorly drafted, such an assignment must be interpreted so as to achieve its object, which was to permit the Ministry of Defence to sue the tortfeasor so as to recoup its outlay to the Claimant. Accordingly, in so far as her claim had been assigned to the Ministry of Defence, it could no longer be asserted against Ergo.
Hugh Mercer QC, instructed by Fishburns, was counsel for Ergo in the successful defence of what is likely to be regarded as a test case raising issues of private international law, foreign law and public international law
