What happens if you have a road traffic accident abroad?

A short ferry across the channel opens up a vast network of roads and countries to explore but what happens when things don’t quite go to plan and an accident occurs? How can a Scottish holidaymaker recover their losses following a road traffic accident in Europe?

The simple answer is that it will be very difficult for a Scottish resident to pursue a civil claim for damages against a foreign driver and/or their insurer unless they have the means and access to instruct lawyers in the country in which the accident occurred. Following Brexit, the ability to pursue an action for damages in Scotland on behalf of a Scottish person who has been injured abroad is significantly limited.

The following is a brief look at what has changed for the Scottish pursuer who is injured as a result of a road traffic accident abroad.

Applicable law

The law to determine the extent of a foreign defender’s liability to a Scottish pursuer remains the law of the country in which the accident took place. A Scottish pursuer still has the right to pursue a claim direct against the foreign insurer or the foreign at-fault driver but liability will be determined in line with the law of the country in which the accident occurred.

Jurisdiction

Pre-Brexit – a Scottish pursuer could rely on the Brussels Regulation (Recast) and the Lugano Convention to find grounds to bring court proceedings in Scotland, being the country of the pursuer’s domicile. After Brexit, the regulations and convention no longer apply and the Scottish pursuer’s ability to bring court proceedings can now only be determined by Schedule 8 of the Civil Jurisdiction and Judgements Act 1982. The balance has shifted in favour of the defender with jurisdiction now being determined by the place in which the defender is domiciled (unless there is an agreement to allow proceedings to be raised elsewhere).

Service of proceedings

Pre-Brexit – a Scottish pursuer could serve court proceedings on the UK representative insurer of a foreign insurer/foreign driver. After Brexit, a Scottish pursuer must now serve directly on the foreign defender (insurer or driver) or their nominated solicitor. This can involve the instruction of a foreign lawyer to effect service in that country. The timescales for service can be lengthy and obtaining confirmation of service is also difficult.

Enforcement of judgments

Pre-Brexit – Scottish judgments would be recognised in other member states. After Brexit, reciprocal enforcement agreements were not retained and a Scottish pursuer is currently required to check the unique agreement in place with each country. The UK has now agreed to sign the 2019 Hague Convention (HCJ) and on 27 June 2024, the HCJ was formally ratified. The HJC is due to come into force on 1 July 2025. Over the next 12 months, each contracting state will decide if the convention will apply between it and the UK. The HCJ will only apply to judgments if, at the time the proceedings were issued, the convention had effect between the state in which the judgment originated and the state to whom the request to recognise and enforce the judgment is made.

Role of the Motor Insurer’s Bureau

Pre-Brexit – a Scottish pursuer could direct their claim against an uninsured or untraced foreign driver to the Motor Insurers Bureau (MIB) in the UK. Post-Brexit – A Scottish pursuer can now only submit their claim to the foreign equivalent of the UK’s MIB in the country in which the accident occurred.

Practically speaking, what once was a complex but certain process for recovering losses suffered as a result of a road traffic accident abroad is now a process fraught with significant difficulties for the Scottish pursuer.