“Territorial scope” clauses and Odenbreit: new High Court ruling

In this blog post, Spencer Turner considers the recent decision of Andrews J in Hutchinson v Mapfre España Compañia de Seguros Y Reaseguros SA and another [2020] EWHC 178 (QB). The case involved a number of important issues for cross-border practitioners:

  • The extent to which the consumer contract provisions of Brussels I (Recast) depend on a defendant’s commercial activities influencing a particular consumer’s decision to contract.
  • The so-called “Keefe” question concerning joinder of a foreign insured to a direct claim against its liability insurer.
  • And, most significantly, the impact of a ‘territorial scope’ clause in the liability insurance policy on the availability of a direct action under the Odenbreit principles.

Continue reading “Territorial scope” clauses and Odenbreit: new High Court ruling

Limitation and Rome II: is service a matter of procedure?

In Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), Tipples J considered as a preliminary issue whether the claimant’s case should be struck out on the basis that it was time-barred. The case involves an interesting analysis of whether service will be treated as a matter of evidence and procedure under art. 1(3) of Rome II (and therefore governed by the lex fori) or whether it is a matter relevant to the question of limitation under art. 15(h) (and therefore governed by the lex causae).

A helpful summary of the decision was written by the defendant’s counsel (which is available here). This blog considers the full transcript of the judgment which has now been approved by the judge: it is available on Lawtel and Westlaw. Continue reading Limitation and Rome II: is service a matter of procedure?

Jurisdiction – what next?

The “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” has been given effect in the UK by the European Union (Withdrawal Agreement) Act 2020. The Withdrawal Agreement is being voted on by the European Parliament today. It must also be approved by the Council of the EU.

Assuming it is approved, jurisdiction will be covered by art. 67(1) of the Withdrawal Agreement. Broadly speaking, this provides for:

  1. The continued application of Brussels I (Recast) to legal proceedings in the UK and in Member States involving the UK “instituted before the end of the transition period”.
  2. The continued application of Brussels I (Recast) to legal proceedings which, although not instituted before the end of the transition period, “are related to such proceedings” pursuant to the lis pendens provisions in arts. 29–31 of Brussels I (Recast).

Article 126 of the Withdrawal Agreement provides that the transition period will run until 31 December 2020 (subject to the possibility of extension of the transition period under art. 132).

Article 67(2)(a) covers the recognition and enforcement of judgments. This provides that “[i]n the United Kingdom, as well as in the Member States in situations involving the United Kingdom” Brussels I (Recast) will continue to apply to judgments “given in legal proceedings instituted before the end of the transition period”.

The UK has also received statements of support from Norway, Iceland, and Switzerland for the UK’s intent to accede in its own right to the Lugano Convention 2007 with effect from the end of the transition period (31 December 2020). We previously wrote about the difficulties that could arise if any of the signatories objected to the UK’s accession to the treaty. The Lugano Convention will continue to apply during the transition period.

Does art. 4(1) of Brussels I (Recast) confer a right enforceable by an anti-suit injunction?

In this blog post, Elizabeth Boulden of 12 King’s Bench Walk looks at the recent case of Gray v Hurley [2019] EWCA Civ 2222. This explores the interesting question of whether art. 4(1) of Brussels I (Recast) gives rise to an enforceable right which obliges a court to grant an anti-suit injunction to prevent a party from litigating against an EU-domiciled person in a non-EU Member State.

In summary, Ms Gray appealed against the refusal of an anti-suit injunction to prevent Mr Hurley from bringing proceedings against her in New Zealand. Ms Gray argued that, pursuant to art. 4(1), she had an enforceable right to be sued in the UK, this being the place of her domicile. The court ultimately decided to refer the matter to the CJEU for a preliminary ruling because the meaning and applicability of art. 4(1) were not acte clair. Continue reading Does art. 4(1) of Brussels I (Recast) confer a right enforceable by an anti-suit injunction?

CJEU rules on Montreal Convention coffee spillage case

In 2015, GN, a six-year-old child, was travelling on board an aircraft between Mallorca  and Vienna. Her father, who was sitting next to her, was served a cup of hot coffee which, when it was placed on the tray table in front him, tipped over onto his right thigh and onto GN’s chest, causing her second-degree burns. It could not be established precisely why the cup of coffee overturned.

The Austrian Supreme Court referred to the CJEU the question of whether or not this constituted an “accident” for the purposes of art. 17 of the Montreal Convention (to which the EU is a signatory). In Case C-532/18 GN v ZU, the CJEU determined that it was. Continue reading CJEU rules on Montreal Convention coffee spillage case

The Bolam test in package travel cases

This blog post is by Nick Parkinson, a solicitor at Travlaw LLP.

Nick considers the case of Morris v TUI UK Limited (Unreported) Wrexham County Court, 31 May 2019. This is the first known instance of the courts applying the ‘Bolam test’ (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) in relation to accidents abroad under the Package Travel Regulations. Although it was not decisive in this case, the potential implications are significant. Will Claimant local standards experts have to confirm that a supplier’s practices do not fall within a reasonable body of opinion if the point is taken? This may not be easy, particularly in cases with more “fluid” standards than building regulations or statutory codes of practice. Continue reading The Bolam test in package travel cases

Thomas Cook mini-series – (3) a new statutory compensation scheme?

Yesterday, Business Secretary Andrea Leadsom made an oral statement concerning Thomas Cook to the House of Commons.

Noting that Thomas Cook had self-insured in respect of all but the most serious personal injury claims, she announced that, after the imminent general election, the government intended to set up a statutory compensation scheme for those left without redress.

The key features of the scheme described are:

  • It will be “a capped fund, sufficient to ensure there is support for those customers facing the most serious hardship as a result of injuries or illness for which UK-based Thomas Cook companies would have been liable”.
  • Measures will be developed to ensure the scheme only responds to genuine claims.
  • The scheme will not consider “routine claims covering short-term problems”.

The full text of the statement is available here.