Applicable law in tort and Brexit: Back to the PIL(MP)A 1995 by default?

Sarah Ford

Previous blog posts on “Jurisdiction and Brexit” and “Contractual proper law and Brexit” have considered the possibility that when the UK leaves the EU, questions of jurisdiction and the law applicable to contractual obligations might fall to be determined by default by rules set out in the Brussels and Rome Conventions respectively. This post considers which rules might apply to determine the law applicable to tortious claims post Brexit.

The law applicable to claims in tort in respect of damage arising on or after 11 January 2009 is currently determined by the rules contained in the Rome II Regulation (Regulation (EC) No 864/2007). However, the Rome II Regulation will cease to apply in the UK post-Brexit.

Assuming that Parliament does not choose to enact new rules post-Brexit, the law applicable to claims in tort will be determined by the rules set out in Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“PIL(MP)A 1995”).

Section 9(1) PIL(MP)A 1995 provides that the rules in Part III apply for choosing the law to be used for determining issues relating to tort. Section 15A provides that nothing in Part III applies to affect the determination of issues relating to tort which fall to be determined under the Rome II Regulation. Part III PIL(MP)A 1995 therefore already continues to apply in respect of tortious claims which fall outside the temporal or material scope of the Rome II Regulation. However, once the Rome II Regulation ceases to apply in the UK altogether, Part III PIL(MP)A 1995 would by default determine the law applicable to all tort claims save for defamation (which is excluded by virtue of s 13 PIL(MP)A 1995 and is governed by the common law rules).

Unlike the Rome II Regulation, which, in addition to a general rule, contains specific regimes applicable to individual categories of tortious liability such as product liability, competition, environmental damage, intellectual property, etc, Part III PIL(MP)A 1995 contains a general rule (s 11) and provision for displacement of the general rule (s 12) which apply equally to all categories of tortious claims. The effect of this “default option” would therefore be what might be thought to be something of a retrograde step from a more specific regime tailored to individual categories of tortious liability back to a one-size-fits-all approach to applicable law.