Today we have another “historical interest” case to be filed away with last week’s CJEU ruling on parasitic claims against policyholders.
Hill v Generali Zrt [2021] EWHC 3381 (QB) concerned an English motorist who was involved in an accident with a car in Germany. The other car was insured by the Defendant.
This was a pre-Brexit case. The Claimant brought a direct action against the Defendant for losses including his repair costs using article 11(1)(b) of Brussels I (Recast) to establish jurisdiction in England.
The controversy arose because the Claimant sued both for his own uninsured loss (an excess of only £350) and for a sum paid out by his own motor insurer (nearly £3,750).
The Defendant said that the English court had no jurisdiction to hear the subrogated claim on behalf of the insurer. HHJ Rawlings agreed with the Defendant but granted permission to appeal.
Pepperall J was not particularly happy to be troubled by this issue:
I am sceptical as to the true importance of the issue given that it has not troubled the senior courts before now and the proper application of EU law in England & Wales is now a matter of historical interest.
However, permission to appeal having been given, he still had to decide it.
The judge noted that there was a strong policy underlying the Brussels I (Recast) rules of ensuring that irreconcilable judgments were not given. Importance was for that reason to be accorded to avoiding a multiplicity of actions.
Given that an insurer did not fall into the class of “weaker parties” who benefitted from the Odenbreit ruling, it would only normally be able to sue in its own name in the place of domicile of the defendant or in the place of the tort.
On the other hand, the policyholder could not be forced to pursue his uninsured losses somewhere other than England since Odenbreit gave him an absolute right to sue in the courts of his domicile.
This led to the real prospect of concurrent claims which were so closely connected that it was “very likely that the second court would stay proceedings for the insured losses” in order to allow the court first seised of the case to determine the uninsured claim.
Although the Defendant was right to say that this was really a matter for the court second seised, Pepperall J thought that it was relevant to his interpretation of the relevant rules:
In my view, such considerations point to an interpretation of the Regulation that allows the insured to sue for both insured and uninsured losses in the place of his or her domicile without the unnecessary procedural steps of assigning the insured losses and leaving the insurer to make an application for joinder pursuant to Article 8(2). Such result achieves predictability, facilitates the sound and harmonious administration of justice, avoids the risk of multiple proceedings and ensures that irreconcilable judgments are not given. Further, it broadly, but not entirely, mirrors the position achieved in Europe through joinder of claims assigned to an insurer with an earlier claim for uninsured losses pursuant to Article 8(2). Accordingly, while an inroad into the principle that jurisdiction will generally be founded on the defendant’s place of domicile, it achieves broad parity with the position in legal systems where the insurer takes an assignment.
This raised the interesting related question of whether a claimant could use Odenbreit to bring a purely subrogated claim (e.g. one without the £350 uninsured excess).
Pepperall J simply sidestepped this:
The principle of predictability might suggest that such a case should not be decided differently, but there would, on those facts, be no risk of multiple proceedings or irreconcilable judgments, or in an assignment case, of an application for joinder under Article 8(2). Since such modified question does not arise on the facts of this case, it is strictly unnecessary for me to rule upon the point and I do not purport to do so.
I am going to end this blog post with some “shout-outs”:
A shout-out to Jack Harding of 1 Chancery Lane and Paul McClorry of Hudgells Solicitors who pre-empted all of the arguments in this case in a great article two years ago.
A shout-out to Tom Collins of 1 Chancery Lane who represented the Defendant (instructed, I note, by Hudgells) and whose blog on a recent local standards decision we featured a few weeks ago.
A final slightly cheeky shout-out to Bernard Doherty of 39 Essex who it appears successfully argued on behalf of the Claimant against the position expressed in his own book “Accidents Abroad: International Personal Injury Claims” (that “mixed” claims involving larger subrogated losses should be subject to different sets of jurisdictional rules).