UK: (Re)Insurance Weekly Update 22- 2016

Last Updated: 27 June 2016
Article by Nigel Brook

A summary of recent developments in insurance, reinsurance and litigation law.

This week's case law:

Guidant v Swiss Re: Court considers appointment of third arbitrator in an insurance dispute

http://www.bailii.org/ew/cases/EWHC/Comm/2016/1201.html

The insured sought to claim under three insurance policies (one issued by Insurer A, two by Insurer B). The policies were all written on the Bermuda form, which provides for London arbitration and the appointment of three arbitrators. Where the two party appointed arbitrators cannot agree the appointment of the third arbitrator, an application may be made to the English court.

The insured and Insurer A agreed the appointment of the third arbitrator in their arbitration. However, no such agreement was reached in the two further arbitrations between the insured and Insurer B. Accordingly, an application was made to court.

The insured wished to appoint the same third arbitrator as the one appointed in its arbitration with Insurer A. It argued that this would reduce the risk of inconsistent decisions and also reduce costs and delay. Leggatt J agreed that there was bound to be a substantial overlap between the issues in all three arbitrations, given that the policies were written in identical terms and covered the same risks. If this had been litigation, the court would almost certainly have ordered the three claims to be managed and tried together in the interests of efficiency and to avoid the risk of inconsistent results.

However, this was arbitration instead, and the court has no power under the Arbitration Act 1996 to order consolidation or coordination of the arbitration proceedings (and the tribunal can only do so with the consent of the parties). Although the judge found that there would be no inference of apparent bias for the same third arbitrator to hear all three arbitrations, nevertheless Insurer B had a legitimate basis for objecting to his appointment, since that person might be influenced by arguments and evidence in the arbitration between the insured and Insurer A. Furthermore, Insurer B would be unable to made submissions, or be privy to evidence adduced, in the arbitration involving Insurer A.

For that reason, the insured's proposal was rejected. The judge did however agree that the same person should be appointed as the third arbitrator in both arbitrations involving the insured and Insurer B. That was because the parties were identical in both arbitrations and would be represented by the same lawyers, who would therefore know what was happening in both arbitrations.

As to the particular individual to be appointed, he chose the arbitrator who had only recently retired from the bench because: "it therefore seems likely that he may have better availability and less likelihood of any conflict than other individuals who have been acting as arbitrators for longer".

Jones v Longley: Court strikes out counterclaim which did not comply with CPR/court guide

http://www.bailii.org/ew/cases/EWHC/Ch/2016/1309.html

CPR r.16 and PD 16 set out various rules about how to plead particulars of claim eg they should be concise and contain sufficient detail of the claim(s). The Chancery Guide also contains further provisions eg separate, consecutively numbered paragraphs and sub-paragraphs.

The statement of case setting out the defendant's counterclaim in this case did not comply with those requirements. It was too prolix to enable a point by point defence to be pleaded, it mixed together claims against different parties and there were no proper particulars of the claims. Master Matthews noted that "the rules of procedure must equally protect the person responding to a claim as much as they enable the claimant to put forward his or her claim". Furthermore, although "at the margins" the courts will allow a little more leeway to litigants in person, "it is desirable to stress that there are not in our system two sets of rules, one for those who employ lawyers, and one for those who do not".

Here, the claimant could not plead to the counterclaim in practice and hence the Master ordered the counterclaim to be struck out. In so doing, he took into account a Court of Appeal decision (Walsham Chalet v Tallington Lakes (2014)) to the effect that the principles which apply to applications for relief from sanctions are "relevant and important" to applications for an order striking out a statement of case as well.

Heraeus Medical v Biomet: Whether state of mind of person signing form N510 matters

http://www.bailii.org/ew/cases/EWHC/Ch/2016/1369.html

The claimants served their claim form on the Dutch defendant company without the court's permission. CPR r6.33 provides that permission from the court is not required to serve a defendant in a Member State provided that there are no proceedings between the parties concerning the same claim pending in the courts of another Member State. There were proceedings already pending between the parties in Germany (but there was an issue as to whether they involved the same claim).

CPR r6.34 requires the claimant to file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve out of the jurisdiction (this is done on Form N510). The claimant's solicitor had signed the statement of truth in the form, verifying that "the claimant believes that the facts stated in this notice are true". The defendant sought to set aside service on the basis that the solicitor had had no reasonable grounds for his belief (relying on a statement by Gloster J in National Navigation v Endesa (see Weekly Update 13/09) that "it is very important in cases said to fall under the Regulation...that solicitors issuing proceedings take particular care to ensure that they have a reasonable basis for their belief").

Mann J rejected the argument that the state of mind of the person signing the notice is relevant. The conditions of CPR r6.33 "are either fulfilled or they are not". Gloster J had been dealing with a different point as she had already found that the English court did not have jurisdiction on the established facts. Her remarks had only been intended to demonstrate that a claimant who signs without a proper evidential basis will engage the court's disapproval when it comes to costs.

The Khan Partnership v Infinity Distribution: Judge refuses to set aside extension of time for service even though extension shouldn't have been granted

http://www.bailii.org/ew/cases/EWHC/Ch/2016/1390.html

The claimant was granted an extension of time for service of its claim form and the defendant appealed against a subsequent refusal to set aside that order. The claimant's solicitors had delayed service within 4 months in order to resolve matters so far as possible in correspondence, without the need for proceedings. Roth J held that this had not amounted to a good reason, in light of the clear authorities on the strict approach to extension of time. Furthermore, although the solicitors had served full particulars of claim on the defendant in draft (and so the defendant was fully informed of the case against it), that alone should not have been sufficient to justify an extension of time because a limitation defence was prejudiced by the extension.

However, this was not an appeal against the order extending time for service. Instead it was an appeal against the order dismissing the defendant's application to set aside the order extending time. Hoddinott v Persimmon (see Weekly Update 45/07) is authority for the position that the fact that the original extension of time should not have been granted does not necessarily mean that a subsequent application to set aside must succeed. Here, there were exceptional circumstances to justify a refusal to set aside the order. The defendant's solicitors had delayed service of the application and as a result the claimant was denied the chance to issue a second claim form before the limitation period expired. For that reason, the refusal to set aside the order extending time was allowed to stand.

Harb v HRH Prince Abdul: Court of Appeal decides whether there is apparent bias if the judge is shown to be biased against a party's legal representatives

http://www.bailii.org/ew/cases/EWCA/Civ/2016/556.html

The Court of Appeal held that there had been deficiencies in the first instance judgment in this case which justified the remission of the matter to the High Court for a re-trial. Although it was not therefore necessary to decide the issue, the Court of Appeal also considered whether there had been apparent bias on the part of the judge. It had been alleged that there had been apparent bias here because of the judge's hostility towards the barristers' chambers representing one of the parties. On the facts, the Court of Appeal concluded that the argument of apparent bias had not been made out.

The Court of Appeal stressed that the test of the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant: "We have little doubt that most, if not all, litigants represented by a member of [the relevant] Chambers... would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject. But the litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded". Furthermore, even if a judge is irritated by, or shows hostility towards, an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedngs.

(Re)insurance Weekly Update 22- 2016

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 Mondaq.com.

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

Authors
Nigel Brook
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions