This week's caselaw
R&V Versicherung v Robertson: Whether loss adjuster appointment was subject to an English jurisdiction clause
http://www.bailii.org/ew/cases/EWHC/QB/2016/1243.html
In early 2013, the claimant German reinsurer appointed the Swiss defendant to provide loss adjusting services. This was a joint instruction with another reinsurer, which had already entered into a Master Agreement with the loss adjusters. The issue in this case was whether the exclusive English jurisdiction clause in the Master Agreement governed the relationship between the claimant and the loss adjusters.
Article 23 of the Lugano Convention (which is materially the same as Article 25 of the recast Brussels Regulation), provides that, where one or more of the parties is domiciled in a Convention country and the parties have agreed that the courts of a Convention country will have jurisdiction, the courts of that country will have jurisdiction, provided that the agreement is "in writing or evidenced in writing".
Waksman HHJ noted that prior caselaw has confirmed that the actual provision of a copy of the relevant terms is not required where a party has clearly accepted them by reference.
Furthermore, jurisdiction clauses are not always automatically incorporated where there is reference to standard terms. So, for example, in The Ethniki [2000], where a reinsurance contract contained the express words "conditions: wording as original", that was not sufficient to incorporate the jurisdiction clause in the underlying insurance contract.
The judge concluded that here, although not all the terms of the Master Agreement were incorporated into the instruction by the claimant, "it would be odd if one of the jointly instructing parties had a clause in favour of England whereas for the other party, jurisdiction was at large. It also means that it cannot be said that [the loss adjusters] would have had some objection in principle to an English jurisdiction clause, had it been asked to consider that matter because (as all the documents suggest), it already accepted that it was contracting with [the other reinsurer] on the basis of the Master Agreement". Furthermore, "the very fact of a joint instruction commercially supports the notion of instructions on the same terms".
Accordingly, the claimant had the better of the argument that its instruction was subject to English jurisdiction, and hence the loss adjusters' application to set aside service on it was dismissed.
Lungowe v Vedanta Resources: Judge confirms that Owusu is binding authority and English court has no discretion to stay proceedings brought in England in favour of proceedings in a non-EU court
http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/TCC/2016/975.html&query=(lungowe)
In this case, Zambian residents commenced proceedings in England against various defendants for alleged loss and personal injury arising from environmental damage caused by a copper mine in their area. One of the defendants is the holding company of one of the mining companies. It is a UK company and so, relying on the ECJ decision of Owusu v Jackson [2005], proceedings were commenced against the holding company and its Zambian subsidiary in England.
Article 4 of the recast Brussels Regulation provides that: "Subject to the Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State." Owusu decided that if an English court is seised of proceedings against a defendant domiciled in England, it cannot stay proceedings in favour of a non-Member State court on the ground that the non-Member State court is the more appropriate forum to hear the case. The ECJ did not answer the further question of whether this principle applies in all circumstances (however, under the recast Regulation, since 10th January 2015 the EU courts have a discretion to stay their proceedings in favour of a non-EU court if the non-EU court was first seised (which was not the position in this case). The non-EU court's judgement must also be capable of recognition and enforcement in order for a stay to be granted).
Coulson J was invited by the defendant to find that Owusu is a case on its particular facts and has no application in this case. He declined to do so. He agreed that there was force in the submission that the ECJ's reasoning is "suspect": "Whilst the principle of certainty is understood, reliance upon it here appears to ignore the fact that, in these cases, it is the defendant himself who would prefer not to be sued in the courts of his domicile". However, the fact that the reasoning in Owusu might be said to be capable of sustained criticism did not mean it was not binding. Coulson J said he was bound to follow the decision.
The judge held that the English courts did have jurisdiction to hear the claim.
(Re)insurance Weekly Update 20- 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.
