UK: Weekly Update: A Summary Of Recent Developments In Insurance, Reinsurance And Litigation Law - 16/11

Last Updated: 11 May 2011
Article by Nigel Brook

This Week's Caselaw

DSG International Sourcing & Anor v UMC Effect of a defective Form N510

Steel J concluded that the English court had jurisdiction under Regulation 44/2001 to hear a claim brought by the English claimant against the Slovakian defendant. However, the claimant had made a mistake when completing Form N510. Where permission to serve a claim form out of the jurisdiction is not required because (as here) the defendant is domiciled in an EU Member State (or in a country which has signed the Brussels or Lugano Conventions), the claimant must file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve without permission (Form N510). The claimant had mistakenly not asserted jurisdiction under the Regulation and had instead asserted jurisdiction under the Civil Jurisdiction and Judgments Act 1982, without specifying any relevant article. That was wrong because the Brussels Convention (on which the Act is based) now only applies to the French Overseas Territories and the Dutch territory of Aruba.

Since Form N510 was to be treated as a nullity, the leave of the court was required for the claim form to be served (CPR r6.34(2)(b)). Steel J held that there is no requirement for the claimant to set out in the claim form itself the specific articles in the Regulation relied upon and the basis for invoking them. In this case, the claimant's approach to jurisdiction had been "thoroughly confused". Despite that, and the defects in Form N510, he held that the claimant was entitled to rely on the relevant provisions of the Regulation. He reached this decision based on the following grounds:

(1) The regulation is the successor to the Brussels Convention; (2) the terms of the Regulation are in all material respects the same as the Brussels Convention; (3) the defendant had sustained no prejudice (other than potential costs' implications); and (4) the court has a discretion to permit service even in the absence of Form N510

British Bankers' Association, R v The FSA Administrative court rejects BBA arguments that FSA guidance on PPI complaints handling was unlawful markup.cgi?doc=/ew/cases/EWHC/Admin/2011/999.html&query=payment+and+protecti on+and+insurance+and+fsa&method=boolean

The British Bankers' Association (the "BBA") challenged the lawfulness of a Policy Statement published by the FSA in 2010. This statement included a "package of measures" for dealing with issues arising out of complaints that customers had been mis-sold payment protection insurance policies. The package included guidance on how complaints should be handled and the basis on which they should be decided.

The BBA alleged that the statement was unlawful because it treated the Principles (which are general statements of the conduct required of the providers of financial services) issued by the FSA as giving rise to obligations owed by firms to customers, leading to compensation being payable for their breach, when those Principles are not actionable in law. An alternative argument was that since the FSA has made other specific rules governing the manner in which PPI policies are sold, it was unlawful for the FSA to provide in its Policy Statement that a customer might be entitled to redress by reference to Principles which conflicted with or augmented those specific rules.

The BBA's arguments have been rejected by Ouseley J. Rules which are not actionable can still give rise to obligations as between firms and customers. On the BBA's second argument, the judge said that "In my judgment, and fundamentally, the BBA analysis rather puts the issue the wrong way round when it contends that the Principles cannot be used to contradict or augment the specific rules....The Principles are best understood as the ever present substrata to which the specific rules are added. The Principles always have to be complied with. The specific rules do not supplant them and cannot be used to contradict them. They are but specific applications of them to the particular requirements they cover. The general notion that the specific rules can exhaust the application of the Principles is inappropriate. It cannot be an error of law for the Principles to augment specific rules".

Other News

The Solicitors Regulation Authority has decided not to abolish solicitors' compulsory professional indemnity insurance in October 2011 when acting for financial institutions:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nigel Brook
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