Spanish law as the lex loci: DHV v MIB: Rome II, the Baremo and Cross-Border Damages Explained

Background

DHV v Motor Insurers’ Bureau [2025] EWHC 2002 (Dias J) is an important High Court decision for anyone handling cross-border road traffic claims where Spanish law applies. The case concerned a UK resident, DHV, who suffered severe brain injuries after being struck by an uninsured driver in Mallorca in July 2017.

Because the driver had no insurance, DHV brought a claim in England against the Motor Insurers’ Bureau (MIB), which compensates UK residents injured abroad in such circumstances. Liability for the accident had already been admitted, but the level of damages and whether DHV was partly responsible remained contested. The claim was valued at more than £3 million.

The issue of penalty interest according to Spanish law was addressed separately in DHV v Motor Insurers’ Bureau [2025] EWHC 2038 (Dias J).

 

Contributory Negligence

A central issue at trial was whether DHV’s own conduct contributed to the accident. The MIB argued that he was intoxicated and lying in the road when struck, and therefore significantly at fault. The Court agreed, assessing his contributory negligence at 65%, leaving only 35% liability with the driver. This finding significantly reduced the value of any award before reaching the question of how the applicable law was to be applied to the facts.

 

The Route to Spanish Law

Both parties accepted that Spanish law governed the assessment of damages because the accident occurred in Spain (lex loci). However, they disagreed on how Spanish law was to be applied in circumstances where the English law of evidence and procedure applied (lex fori). This disagreement carried major consequences in terms of the quantum of the clam.

Under Spanish law, damages arising from road traffic accidents are quantified using the Baremo, a detailed statutory tariff system revised in 2016. Although more generous than its predecessor, the Baremo remains strict and formulaic, particularly regarding lifelong care, rehabilitation and support needs. Unlike English common law, it allows such costs only in limited and prescribed circumstances.

DHV sought a legal mechanism to escape the Baremo’s limits.

 

Rome II vs the 2003 Regulations

DHV argued that Spanish law applied because of the Rome II Regulation, which governs cross-border tort claims. That mattered because Recital 33 to Rome II states that courts quantifying damages should take into account the victim’s actual circumstances, including “in particular the actual losses and costs of after-care and medical attention”. If Recital 33 had legal force, it might allow a court to go beyond the Baremo and award compensation reflecting DHV’s real needs in England.

By contrast, the MIB argued that Spanish law applied solely because of the UK’s Motor Vehicles (Compulsory Insurance) Regulations 2003. If that was right, Rome II, and therefore Recital 33, would be irrelevant, and the Baremo would necessarily apply without modification. Both sides relied on the Supreme Court’s earlier decision in Moreno v MIB [2016] UKSC 52 but drew opposing conclusions from it.

 

The Court’s Findings

Mr Justice Dexter Dias held that Rome II does apply and is the reason Spanish law governs damages in claims brought under the 2003 Regulations. Although the relevant passages in Moreno were obiter, the Judge considered them highly persuasive. On this issue, DHV succeeded, but the victory was ultimately academic.

The Judge rejected the argument that Recital 33 has legal effect. While recitals may guide interpretation, they cannot displace or expand substantive national law. The Judge emphasised that no Spanish authority supported using Recital 33 to go beyond the Baremo, and thus DHV was left in the position of urging the court to consider “the extreme end of any discretion”.

However, the Judge noted that the real task for the English Court was to decide what the Spanish court would do, not could do if exercising extreme discretion. Such approach would be “fanciful and wrong”. Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 was subject to judicial scrutiny in these respects.

 

Arguments on the Baremo

DHV also contended that the Baremo itself, particularly Article 33, permitted an award reflecting full reparation, including losses incurred abroad. However, the Court found no Spanish case law supporting this interpretation. When read alongside provisions expressly limiting compensation, Article 33 could not justify going outside the tariff system. To do so would undermine the Baremo’s purpose: certainty, predictability and consistency. The Court therefore rejected this alternative route as well.

 

Conclusion

With Recital 33 rendered ineffective and the Baremo strictly applied, DHV could not recover substantial elements of his claimed losses, including future care and rehabilitation costs. After the 65% deduction for contributory negligence, he was awarded approximately £213,000 in damages, together with £145,000 in penalty interest – a small fraction of the original £3 million claim.

 

Analysis and review produced by Tomas McCabe who is a Probationary Tenant at Farrar’s Building. Tomas accepts instructions in Chambers’ core practice areas.  For further information, please contact his Clerking Team.

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