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As a result of the Fourth Motor Directive, recently amended by the Fifth Motor Directive, it is now possible to issue proceedings directly against a motor insurer. The recent case of Odenbreit (European Court of Justice) made it clear that it is possible for a claimant to issue proceedings against an insurer in another EU country.
We have pursued several claims on behalf of Cycling UK members who have suffered injuries whilst on cycle touring holidays in France or other EU countries. It is possible to issue court proceedings in this country and arrange for the proceedings to be served direct on the insurer in the foreign jurisdiction. Usually the insurers will nominate local handling agents who will instruct lawyers based in the UK.
Issues with both liability and quantum (i.e. the amount) are dealt with in accordance with the law of the jurisdiction where the accident occurred. This means that if a cyclist is knocked off their bicycle whilst on holiday in France, then liability is determined according to French law. Under French law there is no need to prove fault on the part of the defendant motorist as strict liability applies. Quantum would also be calculated in accordance with French law.
In terms of costs, this is dealt with in accordance with English law and accordingly legal costs are recoverable from a defendant in the event of a successful claim. It is usually advantageous for a claimant to issue proceedings in this jurisdiction as the general rule is that legal costs are paid by the losing party. In many jurisdictions throughout Europe, only limited legal costs are recoverable in the event of a successful claim.
This was first published in the October / November 2012 edition of Cycle magazine.