UK: Insurance And Reinsurance - 14 August 2012

Last Updated: 20 August 2012
Article by Nigel Brook

Welcome to the twenty-nineth edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2012.

These updates are aimed at keeping you up to speed and informed of the latest developments in caselaw relevant to your practice.

This weeks caselaw

Middleton v Allianz
A case on whether a claim against an insurer is governed by English or French law.

Whessoe Oil & Gas v Dale
An application for an extension of time and the importance of the statement of truth.

Star Reefers Pool Inc v JFC Group
Judge considers various issues arising out of a post-judgment freezing order.

Lloyds TSB Bank v Crowborough Properties & Ors
Court allows a claimant to re-open its case post-judgment.

Middleton v Allianz

Whether claim against insurer governed by English or French law

The claimant, a British national, was injured by another British national in a car accident which took place in France. Pursuant to a direct right of action under French law, she brought a claim against the driver's insurers. Under the Private International Law (Miscellaneous Provisions) Act 1995, the general rule is that French law would apply to liability issues in the claim (and under French law, the liability of the driver would be strict, requiring no proof of fault).

However, the insurers sought to rely on section 12 of the 1995 Act, which provides that if, in all the circumstances, it is "substantially more appropriate" for the applicable law governing issues arising in the case to be governed by another law, the general rule should be displaced. Insurers sought to rely on the following arguments: (a) the individuals involved are British (b) even though the tort was committed in France, its consequences were felt in England, and (c) since damages would be assessed under English law, it was more appropriate for English law to govern liability issues as well.

Williams J rejected the insurers' arguments. It was not relevant that the individuals are British. He held that the insurers must have appreciated that the applicable law for the determination of liability for accidents in France would be French law. The determining factor here was that the accident occurred in France and there would be strict liability under French law. It was also significant that the defendant had made interim payments.

Whessoe Oil & Gas v Dale

Application for extension of time/importance of statement of truth

The claimants applied for an extension of time for service of amended particulars of claim. Akenhead J approved a short extension but made the following observations:

  1. The Particulars of Claim contained the statement "the best particulars that they [the claimants] can provide prior to disclosure and/or the provision of any further information herein are as follows:..." That was supported by a statement of truth by the claimants' solicitors. Although the judge did not criticise the solicitor ("because I am confident he would have secured confirmation from his clients to entitle him to sign and serve the statement of truth"), the statement was "simply untrue" because better particulars could have been provided prior to disclosure from a hard drive which the claimants had had in their possession. That was unacceptable: "A statement of truth under the CPR is an important safeguard, which claimants and indeed defendants in their defences should be extremely wary of regarding as is important that the claimants should be made thoroughly aware that it is wholly inappropriate to mislead the court and to mislead the defendant in that way".
  2. The claimants had arranged for the hard drive to be sent by courier from the US. Although the courier company suggests in its promotional literature that it can deliver anywhere in the world within 24 hours, it took 5 days to arrive at the claimants' solicitors' offices. The judge criticised the claimants' failure to track delivery: "It is not enough just to say, "Well, it took five days", because the claimants and everyone knows in practice that if a 24 hour delivery date is given (and if it was not it should have been sought) that delivery companies ...can be chased to ensure earlier delivery".

Star Reefers Pool Inc v JFC Group

Judge considers various issues arising out of post-judgment freezing order

Edelman J considered various issues arising out of the continuation of a post-judgment worldwide freezing order, including the following:

  1. There should be a qualification to the order to make it clear that it does not affect the right of the defendant to claim privilege against self-incrimination;
  2. Would it be appropriate to make an order for committal for contempt (under RSC Order 45) against certain named individuals (who were either validly appointed as directors or who acted as directors of the defendant company)? The order stated that it applied to "the defendant or his officer or agent appointed by power of attorney". The judge held that "appointed by power of attorney" applied only to agents and not officers. The order did apply to the named individuals (who had also been specifically named in the penal notice in any event).
  3. Can service out of the jurisdiction be made on those individuals? The judge held that the individuals were "necessary or proper parties" to the proceedings (see PD 6B para 3.1(3)). He approved the test set out in the White Book which states that "Generally a person who may be joined in proceedings in accordance with the rules as to joinder of parties is a "proper party"" - and held that the test was met here because there was a good arguable case that the individuals were responsible for the defendant having failed to comply with the order.

    The gateway under PD 6B para 3.1(20) would also apply since the claim for an order under Order 45 was a claim "under an enactment which allows proceedings to be brought".
  4. Does the court have jurisdiction over the directors who were out of the jurisdiction where their conduct took place outside the jurisdiction? In Masri v Consolidated Contractors (see Weekly Update 30/09) the House of Lords held that the court does not have jurisdiction to order the examination of a foreign director of a debtor company under CPR r71. Edelman J held that a distinction could be drawn between that case and the position here because the order under Order 45 deals with "a narrower range of persons" ie those involved in the control of the company whose responsibility it was to secure compliance with the order against the company.

Lloyds TSB Bank v Crowborough Properties & Ors

Judge allows claimant to re-open its case post-judgment

This case is a rare example of a judge allowing a claimant to re-open its case and amend its pleadings after judgment had been given. The claimant had argued its case based on a certain principle of law and had not made an application for permission to amend its case when an alternative argument became apparent. The judge rejected the claimant's claim but the claimant then sought to amend. There is prior authority which recognises a court's jurisdiction to allow such an amendment, but it is a jurisdiction which must be applied sparingly.

Purple J decided to grant permission in this case because (a) he had already found all the facts which were relevant to the alternative claim; (b) the defendants had won on a point which the judge (and not the defendants) had raised; and (c) he was not persuaded that the course of the trial would have been significantly different had the alternative case been raised earlier on.

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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