Tuesday, February 3rd, 2026
English law applies to RTA in Scotland: Popa v. XDP
On 29th January 2022, Bogdan-George Popa was killed in a road traffic accident in Scotland on the M74 as he drove an HGV from Skelmerdale to Motherwell. He encountered high winds and the HGV was blown over. His relatives raised an action for damages in the Court of Session against Mr Popa’s employer, XDP Limited.
At the time of the accident, Mr Popa and XDP were habitually resident in England. Although the applicable law would usually be that of the place of the harmful event, under Article 4(2) of Rome II, where the defender and the injured person have a shared habitual residence, it is the law of that place which applies. It was agreed by parties that under Article 4(2), English law would be applied by the court to the relatives’ action.
The matter in dispute at a preliminary proof before Lord Uist (2026 SLT 23) was whether there was a “manifestly closer connection” between the circumstances of the case and Scotland, so that under Article 4(3), English law was displaced. The burden of proof was on the pursuer to establish that this “escape clause” should operate.
Lord Uist observed that there can be no binding authorities under Article 4(3), each case depending upon its own facts. In this case, it could not be said that there was a clear preponderance of factors connecting the accident with Scotland rather than England and Article 4(2) was not displaced.
This is the first reported decision in Scotland on the application of Article 4(3) of Rome II and a helpful starting point in cross-border litigation. The defenders were represented by Craig Murray KC. A copy of the decision can be found here.
