UK: Insurance And Reinsurance Weekly Update - 4 June 2013

Last Updated: 10 June 2013
Article by Nigel Brook

Welcome to the twentieth edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2013.

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

This week's caselaw

  • Wilson v Ministry of Defence
    Court considers the meaning of "the trial has started" in CPR r36.
  • Venulum Property v Space Architecture & Ors
    An application to extend time demonstrates the new approach of the courts post-Jackson.
  • Rogers & Anor v Hoyle
    A Clyde & Co case on whether an independent accident report is admissible as evidence.
  • Mauritius Commercial Bank v Hestia Holdings & Anor
    A case on whether the parties can change the governing law of a jurisdiction agreement.
  • Cruz City 1 v Unitech
    Court decides whether an arbitration claim form could be served on the defendant's solicitors and disclosure of assets for enforcement.

Wilson v Ministry of Defence

The meaning of "the trial has started" in CPR r36

A Part 36 offer can be accepted at any time before it is withdrawn. However, the permission of the court is needed to accept a Part 36 offer if (inter alia) "the trial has started" (see CPR r36.9(3)(d)). This case concerned the meaning of those words.

The claimant suffered personal injury as a result of her exposure to asbestos while laundering her husband's clothes (which were contaminated with asbestos dust as a result of his employment). The defendant employer admitted liability for her injury but its primary defence was that the claim was time-barred. If the claim was not time-barred, it also disputed the nature and extent of the claimant's injuries. The judge ordered a separate trial of the issue of limitation (pursuant to his case management power under CPR r3.1(2)(i)). At the conclusion of that trial (with judgment given in favour of the claimant) and two days before the start of the final assessment hearing, the defendant purported to accept the claimant's earlier Part 36 offer. The claimant argued that the court's permission was required because trial had already started. The defendant countered that it was entitled to accept a Part 36 offer without the court's permission in the period between the two separate trials.

Iain Hughes QC HHJ (on appeal from the district judge's decision that the court's permission was required) held that CPR r36.9(3(d) "takes effect at the start of the first (or only) contested trial. Thereafter, and without interruption, the requirement to obtain permission continues until the conclusion of the action as a whole". Accordingly, the court's permission had been required for the defendant to accept the Part 36 offer.

The judge held that Part 36 should not be construed without regard to the rest of the CPR. For example, a definition of trial had been set out in CPR r45 and the fact that that definition was not repeated in CPR r36 was significant. Nothing in the wording of the Part 36 rule suggested that "the trial has started" meant the start of each separate contested hearing. Furthermore, Part 36 is designed to encourage early settlement. The interpretation which the judge was giving to the words in question would not make it harder to settle: "the court is most unlikely to refuse to permit the parties to settle on the basis of a Part 36 offer, but is likely to impose terms that prevent the offeror being disadvantaged by the fact that an early Part 36 offer was only accepted after the start of the trial, or the start of the trial of the contested issue".

Venulum Property v Space Architecture & Ors

Application to extend time and the new approach of the courts

CPR r7.4(1) provides that particulars of claim must be served on a defendant within 14 days of service of the claim form. However, CPR r7.4(2) provides that "particulars of claim must be served on the defendant no later than the latest time for serving a claim form". In this case, the claim form was served on the last day for service (ie 4 months after the issue of the claim form) and right at the end of the relevant limitation period. The claimant's solicitors mistakenly believed that they could serve the particulars 14 days later, whereas, here, the particulars should have been served with the claim form. The claimant therefore sought an extension of time for service of the particulars of claim in accordance with CPR r3.1 (which allows the court to extend time for compliance with a rule) and CPR r3.9 (relief from sanctions).

As has been previously reported, CPR r3.9 has been radically amended with the replacement of the nine factors which the court had to take into account with just two factors (the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with the rules).

The transitional provisions provide that the change to CPR r3.9 does not apply to applications for relief from sanctions made before 1 April 2013. The application here was made before that date, but the parties agreed that, since the application was made under CPR r3.1, the amendments to CPR r3.9 were relevant. Counsel for the defendant conceded that the nine factors deleted from CPR r3.9 could not now be ignored, even though they no longer had to be taken into account. Edwards-Stuart J found that the factors were fairly evenly balanced in this case. The absence of a good reason for non-compliance with the time limit was an important factor, but on the other hand, the claim would be lost if the application failed.

Although the judge felt it might ordinarily be proportionate to allow the application, three factors militated against that conclusion:

  1. The claimant had delayed for over 5 years before instructing solicitors;
  2. The claim against the defendant in question was not a strong one and there was reason to believe that the claimant would be able to recover in full from the other defendants (who, the judge noted, appeared to be covered by suitable insurance); and
  3. The claimant was seeking to advance a bad faith claim that was vaguely worded.

In light of the stricter approach to be taken by the courts where there has been a failure to comply with the rules, the judge concluded that the application should be refused.

Rogers & Anor v Hoyle

Whether an independent accident report is admissible as evidence

Clyde & Co (David Willcox and Andrew Krausz) for defendant

The issue in this case was whether a report produced by the accident investigation branch of the Department of Transport was admissible as evidence. Leggatt J held as follows:

  1. The report contained a mix of statements of fact and statements of opinion. The factual evidence was admissible since it was relevant and the fact that it is hearsay was not a ground for its exclusion (in light of the Civil Evidence Act 1995).
  2. The statements of opinion would be admissible if made by qualified experts on subjects involving special expertise. However, the defendant sought to rely on prior caselaw which had found that the findings of tribunals and inquiries are not admissible in subsequent proceedings. The judge held that the rationale for this is that it is the duty of the court to form its own opinion on the evidence put before it and the court should not be influenced by the opinion of someone else, however reliable that opinion might be.
  3. However, the judge found that a distinction needed to be drawn between judicial findings and expert opinions. Here, he decided that the report contained findings by an expert investigator and not a judge. Nor had the investigator acted as a judge. Instead, it was held that the report was similar to an expert report commissioned by the parties to litigation (although it did not fall within CPR r35). Accordingly, the report was admissible as evidence.
  4. The judge also refused to exercise his discretion under CPR r32 to exclude the report in whole or in part. Instead, it was for a trial judge to assess how much weight should be given to findings in the report which had not been attributed to any named individual (and was based on an exercise in evaluating and discarding evidence which had not been disclosed).

Mauritius Commercial Bank v Hestia Holdings & Anor

Whether parties can change the governing law of a jurisdiction agreement

The parties entered into an agreement which was governed by the law of Mauritius and provided that the courts of Mauritius would have exclusive jurisdiction. Thereafter, the parties entered into an Amendment and Restatement Agreement which provided that the agreement would be governed by English law and that the English courts would have exclusive jurisdiction. Following a dispute, the claimant began proceedings here and the defendant sought a stay on the ground that the English court did not have jurisdiction.

Article 3.2 of the Rome 1 Regulation permits the parties to change the governing law of their agreement at any time but Article 1(2)(e) excludes jurisdiction agreements from the scope of the Regulation. The issue of whether the parties in this case had changed the governing law of the jurisdiction clause in their agreement therefore fell to be governed by the English rules of private international law.

Popplewell J held that it is possible under those rules for the parties to agree a prospective change to the law governing their jurisdiction agreement (although he left open the question of whether the parties could also agree a retrospective change - something which does have some prior judicial support).

He held that there was a strong policy for allowing this on the ground of contractual autonomy. There might be a variety of good commercial reasons why the parties might want to change the governing law of their agreement, and hence a desire to also change an agreement on jurisdiction so that the courts of the newly chosen jurisdiction could apply their own system of law.

In any event, the claimant had established English jurisdiction in this case by serving on the defendant's designated agent in accordance with a clause in the contract (and pursuant to CPR r6.11(1) - service of the claim form by a contractually agreed method).

Cruz City 1 v Unitech

Whether arbitration claim form could be served on defendant's solicitors/disclosure of assets for enforcement

Cooke J permitted service of an arbitration claim form by an alternative method under CPR r6.15 - namely service on the defendants' solicitors who had not been authorised to accept service. The defendants argued that there were no exceptional circumstances to justify such an order here. That argument was rejected by Field J. He noted that it was the "invariable practice" of the Commercial Court in relation to arbitration applications relating to arbitrations seated within the jurisdiction, to allow service on a party's solicitor who has acted for that party in the arbitration (provided that that solicitor does not appear to have been disinstructed and absent any other special circumstances). He held that that practice should apply in this case.

The claimant sought an order under section 37 of the Senior Courts Act 1981 to compel the defendants to provide disclosure, verified by the affidavit of a proper officer, of all their assets worldwide (in order to aid enforcement of an award in its favour). The defendants sought to rely on the House of Lords decision in Masri v Consolidated Contractors (see Weekly Update 30/09) to argue that the court had no power to compel their manager (who is resident and domiciled in Greece) to attend court and give information about their assets. That argument was also rejected by Field J. Although Masri held that CPR r71 does not have extra-territorial effect, that does not meant that a post-judgment order made under section 37 of the SCA 1981, against a party who is subject to English jurisdiction, is no longer valid. Here, the order was not addressed to a non-party outside the jurisdiction, but instead was an order against the defendants who are subject to the court's jurisdiction.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nigel Brook
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.