Worldwide: (Re)Insurance Weekly Update 44 - 2015

Last Updated: 9 December 2015
Article by Nigel Brook

Welcome to the forty-fourth edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2015

This week's caselaw:

Marshall v MIB

Applicable law where accident involved a number of persons and vehicles

This case concerns an accident in France in which an Englishman was killed (and his colleague badly injured). An uninsured car driven by a French national hit one of the Englishmen's car (which was registered and insured in the UK) which then hit a recovery truck which was registered and insured in France. One of the issues was which law was applicable to the accident, which had involved a number of persons and vehicles. This issue fell to be determined under the Rome II Regulation (the accident having taken place after 11th January 2009).

Article 4(1) of the Regulation provides that the applicable law will be the country where the damage occurs (here, France). However, Article 4(2) provides that "where the person claimed to be liable and the person sustaining the damage both have their habitual residence in the same country...the law of that country shall apply". The argument was raised that, because of the use of the singular "person", Article 4(2) only applies where one person brings proceedings against another person and they are both habitually resident in the same EEA state. That argument was rejected by Dingemans J who opined that: "The proposition that a coach crash involving a number of different Claimants should be excluded from the effect of Article 4(2) simply because there is more than one injured person is not sustainable". Accordingly, English law might apply to the claim of the widow of one of the Englishmen against the other.

Article 4(3), though, can be used to return to a governing law that might have been required by either Article 4(1) or 4(2). It provides that, where it is clear from all the circumstances of the case that the tort is manifestly more closely connected with another country, the law of that country shall apply. The judge held that Article 4(3) could (and did) apply to return to French law in this case, even though Article 4(2) had excluded it, having taken into account all the circumstances of this case.

Gavin Edmondson Solicitors v Haven Insurance Company

Whether insurers liable to solicitors where portal claims were settled directly with claimants

Several claimants were pursuing road traffic accident claims under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the Protocol"). The claimants entered into CFAs with their solicitors and their claims were entered on the Portal. The defendants' insurer knew that the claims had been notified under the Portal but it then settled the claims directly with the claimants (offering to pay the claimants more if they did not use solicitors), thereby depriving the claimants' solicitors of their costs. At first instance, the judge dismissed a claim brought by the claimants' solicitors against the insurer for their costs. The Court of Appeal has now allowed the appeal from that decision.

Reference was made to the earlier Court of Appeal decision in Khans Solicitors v Chifuntwe (see Weekly Update 17/13), in which the Court of Appeal held that there is no necessity to find collusion between the client and the payer, instead, there will be no proper discharge of a claim if the payer is "on notice" of the solicitors' legitimate interest in the payment.

In this case, the Court of Appeal confirmed that such notice can be implied. Here, however, it was held that the insurer had express notice because its "knowledge of and participation in the scheme established by the Protocol and the Portal meant that it was well aware of the interest of [the claimants' solicitor] in receiving its fixed costs and other sums due under the Protocol scheme. Furthermore, it has not been disputed that [the insurer]'s objective in entering into the compromise agreements was to defeat that interest".

Although the effect of a client care letter (which prevailed over the terms of the CFA, and which provided that, upon success, the solicitors would recover their fixed costs and other sums from the other side) was that the solicitors had no right to recover fees from their clients, an entitlement to recover costs arose under the Protocol (and, although it could have, the insurer had not exited the Protocol process at the time of the settlements). The principle of equitable intervention therefore required the insurer to pay the solicitors their fixed costs and other sums payable under the Protocol.

Van Oord v Allseas

Whether an offer was a claimant or defendant Part 36 offer

CPR r36.2(3) provides that a Part 36 offer can be made in respect of a counterclaim and refers to CPR r20 which in turn provides that counterclaims are treated as claims. CPR r36.5 further provides that an offer must state whether it takes into account any counterclaim. The issue of whether a Part 36 offer made by a counterclaiming defendant is to be treated as a claimant or defendant offer is important because claimant offers which are not beaten entitle the offeror to better costs consequences than defendant offers.

In this case, the defendant had made a Part 36 offer to settle the claim against it and the offer was said to take account of any counterclaim which the defendant might have (although no separate, stand-alone counterclaim had been made by the defendant at the time of the offer). The defendant went on to get a better result at trial and argued that it was entitled to the enhanced costs consequences available to claimant Part 36 offers.

Coulson J held that the offer had been a defendant's offer. He stressed that it is vital that a party making a Part 36 offer spells out, in unequivocal terms, the nature of the offer being made and the consequences which will flow from non-acceptance: "the recipient needs to be in no doubt as to what may happen if the offer is turned down". Furthermore, an offer from a counterclaiming defendant will not automatically be treated as a claimant's offer – it is necessary to look at its terms. He also referred to the earlier decision of AF v BG (2010) – in which the Court of Appeal had held that an offer made by the defendant was to be construed as a claimant's offer – and drew various distinctions with the position in that case:

  1. The offer was not expressly stated to be a claimant's offer.
  2. There was no offer to accept an amount in settlement of both the claim and counterclaim – instead it just offered to pay an amount to the claimant.
  3. The offer had offered to pay the other side's costs.
  4. It did not spell out the enhanced consequences of non-acceptance of a claimant's offer.

Furthermore, even if this had have been a claimant's offer, the judge would only have imposed interest of 2.5% (even though up to 10% could have been awarded), because of the current low interest rates.

The judge went on to find that the defendant was entitled to indemnity interest because the claimant should have realised that its claim was hopeless from the outset. However, amounts paid by the defendant to claims consultants were excluded from the order for indemnity costs. That was because the consultants had not acted in any formal proceedings for the defendant and their involvement in the disclosure exercise was "somewhat surprising".

The RBS Rights Issue Litigation

Court considers whether expert evidence is necessary/adjourning trial to allow disclosure process more time

Two procedural issues fell to be considered by Hildyard J and Chief Master Marsh in this case:

  1. Whether the defendants should be given permission to call an additional expert. Having reviewed the applicable test to be applied (which included referring to the three-stage test proposed by Warren J in British Airways v Spencer (see Weekly Update 31/15 for further details)), it was concluded that the defendants had not justified the admission of the disputed evidence. However, it was further held that the defendants should be permitted to renew their application if they wished to do so after having first given their existing experts a further list of questions on the relevant issue. Although it was appreciated that such an approach was not favoured by either party, it was also noted that this approach "is becoming a not unusual recourse in very complex litigation and before the contours of the case are more clearly defined and the other more undisputedly necessary expert evidence is available".
  2. Whether the trial date should be adjourned because of difficulties with the defendants' disclosure exercise (which they said had exceeded their expectations as to scale and the amount of time needed). Under the CPR, an exceptionally strong justification is required if the application will lead to the loss of a fixed trial date. The judge was also critical of the defendants' approach to disclosure. There had been no sufficiently early attempt to grasp what would be involved, "vast armies" had been used without any sufficient focus by senior members within the defendants' organisation and so there had been too much emphasis on a "bottom up" approach to disclosure. Furthermore, the defendants had left the process of identification and collation of its documentation to its solicitors and had not been sufficiently involved in assisting the process.

However, it was concluded (with reluctance) that there would be a risk of unfairness to the defendants if a short adjournment of three months was not allowed. It was stated that: "though the inevitability that costs rise the longer a case continues is also to be considered, in the end it is not the start but the end date which is of prime importance. A more compressed timetable may lead to a longer or disorganised trial".

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.