Primacy of Common Habitual Residence under Rome II in UK Cross-Border Torts: Commentary on Popa v XDP Ltd [2025] CSOH 119

1. Introduction

The decision of Lord Uist in Lacramioara Popa and others v XDP Ltd [2025] CSOH 119 is a significant Scottish authority on the application of Regulation (EC) No 864/2007 (“Rome II”) in the post‑Brexit landscape, particularly in the context of:

non-contractual obligations arising from road traffic and employer’s liability claims; and
choice of law where the accident occurs in Scotland but the employer and employee are rooted in England.

The case concerns a fatal road traffic accident on the M74 in South Lanarkshire on 29 January 2022, in which Mr Bogdan‑George Popa, an HGV driver employed by XDP Ltd, was killed when his curtain‑sided articulated lorry overturned in high crosswinds and crossed into the opposite carriageway.

The pursuers are:

the deceased’s wife (first pursuer),
their son (second pursuer), and
his parents in Romania (third and fourth pursuers).

They allege common law negligence by XDP Ltd, his English-based employer, for failing to manage the risks of adverse weather, including high winds. XDP in turn alleges contributory negligence by Mr Popa.

Jurisdiction of the Scottish courts was accepted. The sole issue at this preliminary proof was choice of law: should Scots law or English law govern liability and damages?

The answer turns on the interpretation of Article 4 of Rome II (as retained in UK law), especially:

Article 4(2): the “common habitual residence” rule, and
Article 4(3): the “escape clause” where the tort/delict is manifestly more closely connected with another country.

The judgment gives a clear signal that, in UK cross‑border tort cases, the common habitual residence of the parties will normally prevail, and that the Article 4(3) escape clause will only displace that rule in genuinely exceptional, clearly demonstrable circumstances. For Scottish practice, this is an important confirmation that many accidents physically occurring in Scotland may nonetheless be governed by English law where both tortfeasor and victim are “based” in England.

2. Summary of the Judgment

2.1 Factual background in brief

Mr Popa, a Romanian national, lived with his wife and son in Liverpool from December 2019.
He was employed as an HGV driver by XDP Ltd, a transport and logistics company with central administration and registered office in England.
His usual base was XDP’s Skelmersdale depot (Lancashire); he habitually ran a route from Skelmersdale to the Cleland depot in Motherwell and back.
On 29 January 2022 he drove a lightly loaded curtain‑sided articulated HGV north on the M74 towards Cleland.
A Met Office yellow weather warning for wind was in place for Scotland from 04:00–15:00 that day.
At about 07:45 hours, in strong crosswinds on the M74 northbound, the HGV overturned, breached the central barrier and collided with an oncoming vehicle. Mr Popa suffered fatal head injuries; he was pronounced dead at 08:15.

2.2 Allegations of negligence

The pursuers allege that XDP breached their common law duty of care to employees by failing to take reasonable steps in response to the known weather risks, including:

failing to monitor and communicate weather warnings,
failing to postpone or abort a vulnerable light-load, high‑sided journey in high winds,
failing to implement a system allowing drivers to “park up” without penalty when conditions became dangerous, and
failing to undertake a suitable and sufficient risk assessment regarding adverse weather, contrary to the standards reflected in the Management of Health and Safety at Work Regulations 1999.

They also rely on XDP’s post‑accident risk assessment (April 2023) as showing what reasonable precautions ought to have been in place earlier.

XDP alleges contributory negligence, arguing that:

as an experienced and recently DCPC‑qualified HGV driver,
aware of the weather and of suitable stopping places,
he should have stopped or reduced speed significantly (to 20–30 mph),
and that failure to do so was causally relevant to the accident.

2.3 Procedural posture

The case proceeded as a preliminary proof on choice of law before Lord Uist in the Outer House. All relevant facts were agreed; there was no oral evidence.

The parties agreed that the applicable law must be determined by Article 4 of Rome II, as amended by the Law Applicable to Contractual Obligations and Non‑Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019.

2.4 Core legal issue

The central issue was:

Given that the accident and direct damage occurred in Scotland, but both the deceased and XDP were habitually resident in England,
does Article 4(2) require English law to apply, or can the pursuers invoke Article 4(3) to argue that the tort/delict is “manifestly more closely connected” with Scotland so that Scots law should govern?

2.5 Decision

Lord Uist held:

Both the deceased and XDP were habitually resident in England at the time of the accident, so Article 4(2) is engaged.
The “escape clause” in Article 4(3) requires a clear preponderance of factors showing that the tort is manifestly more closely connected with another country. The burden lies on the party seeking to disapply Article 4(2) — in this case, the pursuers.
The factors relied upon by the pursuers (location of accident, Scottish weather, Scottish emergency services, Scottish FAI, etc.) do not cross that threshold; they reflect nothing more than the fact that the accident happened in Scotland and its immediate local consequences were dealt with there.
By contrast, both parties’ habitual residence and all the alleged negligent acts and omissions (risk assessment, route allocation, training, communication systems) were rooted in England.
There was no preponderance of factors favouring Scotland over England.

Accordingly:

English law governs both liability and damages under Article 4(2) Rome II.
The pursuers’ attempt to invoke Article 4(3) fails.
Lord Uist formally declared that English law applies and continued the cause to a proof on liability and quantum, reserving expenses of the preliminary proof.

3. Detailed Analysis

3.1 The Rome II framework and its post‑Brexit status

Rome II is the EU instrument harmonising conflict‑of‑laws rules for non-contractual obligations (torts/delicts) in civil and commercial matters. Although the UK has left the EU, Rome II has been retained in domestic law (with modifications) by:

The Law Applicable to Contractual Obligations and Non‑Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/834).

For practical purposes, UK courts (including the Scottish courts) continue to apply Rome II as the governing choice‑of‑law regime for non‑contractual obligations in most civil cases, subject to interpretive changes where necessary.

3.1.1 Article 4: the basic structure

Article 4 establishes a three‑stage hierarchy of connecting factors:

Article 4(1): Lex loci damni
The default rule: the applicable law is that of the country in which the damage occurs, regardless of where the event giving rise to the damage happened or where indirect consequences are felt. In personal injury cases, the “country where the damage occurs” is the place where the injury is sustained.
Article 4(2): Common habitual residence
Where both the person claimed to be liable and the person sustaining the damage have their habitual residence in the same country at the time the damage occurs, the law of that country displaces the lex loci damni.
Article 4(3): Escape clause
If, “from all the circumstances of the case,” it is clear that the tort/delict is manifestly more closely connected with another country than that indicated by Article 4(1) or (2), then the law of that other country applies. This is an “escape clause” based on the “centre of gravity” of the tort.

Article 25 addresses states with multiple territorial legal systems: each territorial unit (such as Scotland and England & Wales) is treated as a separate “country” for choice‑of‑law purposes. Thus, Article 4 applies as between Scotland and England as though they were different states.

3.2 Habitual residence and Article 4(2)

Although Rome II contains a definition of habitual residence for companies (Article 23), it does not define habitual residence for natural persons. Accordingly, the court turned to case law on habitual residence in EU and domestic contexts.

3.2.1 Yordanov v Vasilev [2024] EWHC 1496

Lord Uist cites the summary by Judge Annabel Darlow KC in Yordanov v Vasilev, which distilled the principles on habitual residence into key propositions:

“Habitual” implies permanence or regularity, not transience.
It is a question of fact, based on all circumstances: duration, regularity, reasons for residence, linguistic ties, and evidence of establishing a home.
A peripatetic or short‑term lifestyle points away from habitual residence.
It is not enough simply to be physically present in a country; the person must have established their “permanent or habitual centre of interests”.
Intention as to future residence is relevant but not determinative; habitual residence is not created merely by intending to settle.

Applying these principles, there was little real controversy:

Mr Popa lived in England with his family from 2019 onwards at a settled address.
He was employed by an English company; his usual depot and administrative base were in England.
His centre of interests—family, home, work—was clearly in England.
XDP’s habitual residence, by Article 23, was in England (place of central administration and registered office).

The parties agreed that both employer and employee were habitually resident in England at the time of the accident. Lord Uist also made clear he would have reached that conclusion on the facts had it been contested.

Under Article 4(2), this common habitual residence rule therefore overrides the default lex loci damni in Article 4(1), which would otherwise have pointed to Scots law as the place where the injury occurred.

3.2.2 Lazar v Allianz SpA [2016] 1 WLR 835

In Lazar v Allianz SpA, the Supreme Court held that for the purposes of Article 4(2), it is the habitual residence of the victim, not the dependants or relatives, that is relevant in wrongful death cases. Lord Uist follows this, confirming that:

The parents in Romania (third and fourth pursuers) are not the relevant reference point for Article 4(2);
Rather, it is the deceased’s habitual residence that matters.

Thus, even though some indirect loss was suffered by relatives in Romania, that does not affect the Article 4(2) analysis.

3.3 Article 4(3) and the “centre of gravity” test

The heart of the judgment lies in the application of Article 4(3). The pursuers had to show that the delict was manifestly more closely connected with Scotland than with England, notwithstanding the rule in Article 4(2).

Lord Uist surveys recent English authorities that have analysed Article 4(3) in some detail and adopts their approach:

Yordanov v Vasilev [2024] EWHC 1496 (Darlow KC J)
Winrow v Hemphill [2014] EWHC 3164 (QB)
Pickard v Motor Insurers’ Bureau [2017] RTR 20 (Dingemans J)
Marshall (as discussed in Yordanov)
Owen v Galgey [2020] EWHC 3546 (QB) (Linden J)

3.3.1 The nature of the escape clause

The Explanatory Memorandum to Rome II and the case law emphasise that:

Article 4(3) is a general exception clause, akin to Article 4(5) of the Rome Convention.
It exists to inject flexibility into the system and allow the court to apply the law reflecting the “centre of gravity” of the situation.
Because it undermines the predictability and certainty promoted by 4(1) and 4(2), it must be used exceptionally and only where the alternative connection is manifestly closer.

As summarised in Yordanov and Owen v Galgey:

The test is stringent. It is not enough merely to show that some factors point towards another country; a clear preponderance of factors must do so.
There is no additional requirement that the facts themselves be “exceptional” in nature; “exceptional” describes the role of Article 4(3) within the structure, not the character of the case.
The court must consider all the circumstances of the case and compare connections with competing countries.
The focus is on the tort itself, not simply where consequential damage is experienced.

3.3.2 Factors relevant to the centre-of‑gravity inquiry

Drawing on Winrow, Marshall, Yordanov, and Owen, the courts have identified factors that may be relevant to determining whether a tort is more closely connected with a particular country, including:

Where the accident and direct damage occurred;
The habitual residence of the parties at the time of the tort;
Any pre‑existing relationship between the parties (e.g. contract) and its location;
The country where decisions or activities constituting the alleged wrongful conduct took place;
Nationality of the parties (with generally lesser weight than residence);
The country where the bulk of the loss is suffered;
The place where the relevant vehicle was registered and insured (in motor cases);
The country where legal proceedings are brought (forum), though this is usually a weak connecting factor.

No single factor is determinative; the analysis is holistic.

3.4 The key precedents and their influence

3.4.1 Pickard / Marshall v MIB: a paradigm case for Article 4(3)

In Pickard v Motor Insurers’ Bureau [2017] RTR 20, a serious multi‑vehicle accident occurred in France, involving:

a French driver (uninsured),
a British driver (Mr Pickard) and his British passenger (Mr Marshall),
a French recovery truck and French insurer,
claims brought in England involving the MIB and French compensation bodies.

Although some parties were habitually resident in England and the proceedings were in England, Dingemans J held that:

The tort was manifestly more closely connected with France because:
the core accident occurred on a French motorway,
the immediate tortfeasor was a French national driving a French car,
the recovery truck and its insurer were French,
any direct claims against those French parties would plainly be governed by French law.

Thus, Article 4(3) displaced the Article 4(2) common habitual residence rule, and French law applied.

Lord Uist uses Pickard as a benchmark of the kind of “unusual configuration” that can justify invoking Article 4(3): the accident, the tortfeasor, and the key insurance arrangements were all embedded in one foreign legal order (France), even though the victims were domiciled in England.

3.4.2 Owen v Galgey

In Owen v Galgey [2020] EWHC 3546 (QB), an English claimant suffered injury in a swimming pool at a holiday property in France owned by English defendants, also habitually resident in England. Nonetheless, the English court held that the tort was more closely connected with France, because:

the property and pool were in France,
French contractors had worked on the pool under French law contracts,
French regulatory and safety standards were central to the negligence alleged.

This is another illustration that location of the alleged wrongful state of affairs (defective pool, unsafe premises) can outweigh common English residence.

3.4.3 Yordanov and Winrow

Yordanov v Vasilev and Winrow v Hemphill consolidate the doctrinal structure:

They treat Article 4(3) as a high-threshold mechanism requiring a clear preponderance of connecting factors to another country.
They emphasise that:
- the habitual residence and location of the tortious conduct are central;
- secondary consequences (e.g. home‑country losses) are relevant but weaker.

Lord Uist explicitly quotes Darlow KC’s detailed summary in Yordanov and uses it to frame his own analysis of Article 4(3).

3.5 Application of Article 4(3) to Popa v XDP

3.5.1 The pursuers’ “pull factors” towards Scots law

The pursuers identified ten factors said to connect the tort more strongly with Scotland (set out at para [18] of the judgment). In essence, these were:

The accident occurred on a Scottish motorway (M74).
The route from Skelmersdale to Cleland (Scotland) was one he drove every working day.
The locus was close to the Cleland depot (14 miles).
Scottish emergency services responded.
The post‑mortem was in Glasgow.
The cause of the accident was related to Scottish local weather and crosswind conditions.
A Scotland‑specific Met Office weather warning was in force.
XDP’s contributory negligence allegations focus on decisions (e.g. failing to abort journey) taken at or near the Scottish locus.
The case was raised in Scotland and addressed in part in a Scottish Fatal Accident Inquiry (FAI).
Indirect consequences were suffered in Romania by the deceased’s parents.

3.5.2 The defenders’ counter‑analysis

XDP accepted the Scottish factors but said they had limited weight for choice‑of‑law purposes. They pointed instead to factors rooted in England:

Weather monitoring, risk assessment, and operational decision‑making were all based at the Skelmersdale depot.
The allocation of the journey, training of drivers, provision of handbooks, and communication of safety policies were all functions of the English employer.
All the alleged negligent acts and omissions (failure to monitor weather, failure to train, failure to adopt suitable procedures) occurred or failed to occur in England.
Both parties’ habitual residence was English; the first pursuer also lives in England.

Thus, while the harmful event (the overturning) occurred in Scotland, the alleged negligence was essentially an English employer’s systemic or managerial failure.

3.5.3 Lord Uist’s evaluation

Lord Uist held that, on proper analysis, the pursuers’ ten factors amount to no more than:

“the accident occurred in Scotland and the usual consequences flowing from such an occurrence occurred in Scotland.” ([20])

He emphasised that there were no unusual features akin to Pickard (involving a foreign tortfeasor, foreign insurance structures, and a foreign regulatory environment). The mere fact that:

the road is in Scotland,
Scottish emergency services and coronial processes were engaged, and
a Scottish FAI took place,

does not by itself establish that the delict is manifestly more closely connected with Scotland.

By contrast, factors pointing towards England included:

Common habitual residence of the deceased and XDP in England.
Employment contract and workforce management based in England.
Risk assessments and health-and-safety management systems created and administered in England.
All alleged management-level negligence (including failure to adjust operations in light of weather warnings) had its locus in England.

Accordingly:

No preponderance of connecting factors favours Scotland.
Therefore, Article 4(3) cannot be invoked to displace Article 4(2).

Lord Uist also corrects a conceptual misstep in the defenders’ submissions:

XDP had argued there was a clear preponderance of factors favouring English law under Article 4(3).
But, as the judge notes, it is not the defenders’ burden to establish Article 4(3);
It is the pursuing party wishing to displace Article 4(2) that must show a preponderance of factors in favour of the alternative law.

Here, the pursuers failed to discharge that burden.

3.6 Legal reasoning: why English law applies

The reasoning can be summarised as follows:

Habitual residence controls by default:
Under Article 4(2), where tortfeasor and victim share the same habitual residence, that country’s law applies. Here both were English, so English law is the baseline.
Article 4(3) is a narrow escape valve:
The pursuers must demonstrate that the tort is manifestly more closely connected to Scotland than to England.
Physical locus vs. legal centre of gravity:
While the accident physically happened in Scotland (and thus Scots law is the lex loci damni), that is not decisive under Article 4(2). The “centre of gravity” of the alleged wrong relates more to:
- where the alleged negligent systems and decisions were made (in England), and
- the habitual residence of the parties (also England).
No French‑style configuration:
Unlike Pickard, there is no constellation of foreign drivers, local insurers, or foreign compensation schemes that would anchor the tort in Scotland as the governing legal system.
Standard consequences are not enough:
That Scottish emergency services, Scottish hospitals, and Scottish courts responded is a normal outcome of an accident in Scotland and does not, without more, make the tort manifestly more closely connected with Scots law.

Thus, the rule in Article 4(2) remains undisturbed, and English law applies to both liability and damages.

4. Impact and Significance

4.1 For Scottish private international law

Popa v XDP is one of the clearest Scottish applications of Article 4 of Rome II post‑Brexit, and it aligns closely with English authority. Its key doctrinal contributions are:

Affirming that Rome II continues to govern choice of law in non‑contractual obligations in Scotland as retained EU law.
Confirming that, under Article 25, Scotland and England are separate “countries” for Rome II purposes.
Emphasising the primacy of common habitual residence in Article 4(2), even where the accident and direct damage occur elsewhere in the UK.
Reinforcing a restrictive, high-threshold approach to Article 4(3): the escape clause should not be over‑used as a tool of judicial flexibility.

4.2 Practical consequences in road traffic and employer’s liability claims

The practical stakes of choice of law are substantial. Scots law and English law diverge in meaningful ways on:

Heads of loss in fatal claims:
- Scots law (e.g. Damages (Scotland) Act 2011) recognises broad “loss of society” claims for a wide class of relatives (including parents) and generally more generous awards.
- English law (Fatal Accidents Act 1976) provides a restricted, fixed-sum “bereavement” award to a narrow category of relatives; foreign‑resident parents may receive no bereavement damages at all.
Assessment of dependency, services, and interest, where methodologies and judicial approaches can differ.

In a case like Popa, the choice between Scots and English law may directly determine:

whether the Romanian parents have any claim for non‑pecuniary loss at all, and
the overall quantum of damages for the widow and child.

Lord Uist’s decision signals that, where both employer and deceased employee are based in England and the alleged negligence is rooted in English operations, the accident’s Scottish location will rarely suffice to secure the application of Scots law.

4.3 Forum shopping and litigation strategy

The judgment also constrains the scope for forum shopping within the UK:

Claimants cannot rely solely on the place of accident (Scotland) to secure a perceived advantage in applicable law, where both parties are habitually resident in England.
Litigators must consider, at the outset, whether Article 4(2) is likely to point to English law even if proceedings are brought in Scotland.
Where a claimant wishes to argue for Scots law, they will need to marshal concrete evidence that:
- the core negligent conduct occurred in Scotland, or
- the parties’ relationship and operational structures are centred in Scotland,
and not merely that the harmful event took place there.

To invoke Article 4(3) successfully, solicitors will need to:

identify facts analogous to Pickard or Owen, where the foreign legal order and its regulatory framework are integral to the alleged wrong, and
plead a detailed narrative of how the alleged tort is entangled with that foreign system.

4.4 Interaction with health and safety regulation

The pursuers relied on the Management of Health and Safety at Work Regulations 1999 as evidence of the common law standard of care. While the judgment does not explore the substantive negligence issues (these are left to proof), it implicitly confirms that:

the content of the duty of care will be determined by English occupational health and safety standards, not Scots law standards, in this case;
this may influence:
- how risk assessments must be conducted,
- how employers should respond to Met Office warnings, and
- the adequacy of training and communication systems for drivers.

This has broader implications for transport and logistics companies operating from English bases but routinely traversing Scotland.

5. Complex Concepts Simplified

5.1 Habitual residence (of natural persons)

Habitual residence is not a technical legal domicile; it is essentially where a person’s life is based. Key points:

A person is habitually resident where they normally live and have the centre of their interests.
It is based on facts, not on declarations or paperwork.
Factors include:
- how long they have lived there,
- whether they live there with their family,
- whether they work there,
- and whether they intend to stay for the foreseeable future.

In Popa, the deceased had:

lived in Liverpool with his family since 2019,
worked for an English employer based in England,
and had no equivalent established base in Scotland.

Thus, he was habitually resident in England, even though his work regularly took him into Scotland.

5.2 Lex loci damni vs. common habitual residence

These are two competing connecting rules for deciding which country’s law applies:

Lex loci damni (Article 4(1)): “law of the place where the damage occurs.” In a road accident, this is generally the law of the country where the collision takes place.
Common habitual residence (Article 4(2)): if both parties live in the same country, that country’s law overrides the place-of-accident rule.

So even though the crash occurred in Scotland (lex loci damni), the fact that both employer and employee were habitually resident in England meant that, under Article 4(2), English law prevailed—unless Article 4(3) could be used to escape that result.

5.3 The Article 4(3) “escape clause”

Article 4(3) can be thought of as a safety valve. It allows the court to say:

“Although the rules in 4(1) or 4(2) point to Country A, when we look carefully at all the facts, it is obvious that this case is really more about Country B, so Country B’s law should apply.”

But:

It is not enough that Country B has some connections; the connection must be manifestly closer, and
there must be a clear majority of significant links pointing to B, not A.

Cases such as Pickard show how an accident involving foreign drivers, foreign insurers, and foreign roads can be treated as governed by that foreign law, even where some parties live in England.

5.4 States with multiple legal systems (Article 25)

Because the UK has different legal systems (Scotland, England & Wales, Northern Ireland), Rome II treats each of them as if they were separate “countries” for the purpose of choice of law.

This means:

An accident in Scotland involving parties based in England triggers the same Rome II framework as, say, an accident in France involving English parties.
The court asks: Scots law or English law? in the same way it would ask: French law or English law?

5.5 Chapter 43 procedure

Chapter 43 of the Rules of the Court of Session governs certain types of personal injury actions. It provides a streamlined pleading process with standard forms in place of traditional detailed written pleadings.

Because of that structure:

there are no conventional “pleas‑in‑law” to sustain or repel at this stage; instead, the judge makes declaratory orders (as Lord Uist did here, declaring that English law applies) and sends the case to proof on the substantive issues.

6. Conclusion

Popa v XDP Ltd [2025] CSOH 119 is a careful and principled application of Rome II to a tragic cross‑border accident case. Its core messages are clear:

Where both tortfeasor and victim are habitually resident in the same part of the UK, Article 4(2) will normally make that jurisdiction’s law applicable, even if the accident occurs elsewhere in the UK.
The Article 4(3) escape clause is narrow and demanding: to succeed, a party must show that the entire tort is manifestly more closely connected with another legal system, in a way similar to the configuration seen in cases like Pickard and Owen.
Location of the accident, emergency response, and post‑mortem processes, taken alone, typically represent standard consequences of geography and do not suffice to dislodge the common habitual residence rule.
For employers operating from one UK jurisdiction but sending workers into another, the governing law of negligence may remain that of the home jurisdiction, particularly where alleged systemic failures occur at the home base.

In the broader legal context, the decision:

cements Scottish alignment with English authority on Rome II,
clarifies the weight accorded to different connecting factors, and
shapes expectations for litigants seeking to take advantage of more favourable fatal accident regimes by choosing a particular forum within the UK.

The substantive issues of negligence and contributory fault remain to be tried under English law, but as a choice‑of‑law precedent, Popa is likely to be frequently cited in future UK cross‑border tort and employer’s liability litigation, particularly where the accident’s location and the parties’ habitual residence do not coincide.