Recent guidance on “good arguable case” test in jurisdiction challenges

In Generali Italia SPA & Ors v Pelagic Fisheries Corporation & Anor [2020] EWHC 1228 (Comm), Foxton J considered proceedings brought by insurers for declarations that they were not liable to their insureds under certain policies of insurance. The insureds challenged the English court’s jurisdiction on the basis that they had already brought their own parallel proceedings against several of the insurers in Italy.

The insurers countered that the relevant insurance policies were subject to exclusive English jurisdiction clauses. The insureds disagreed; they said that the insurance policies contained clauses giving jurisdiction to the courts of either England or Italy. They argued on that basis that the English court should stay its proceedings in order to allow the Italian proceedings to progress.

Foxton J’s judgment contains useful guidance on how the courts will now apply the “good arguable case” test in jurisdiction challenges following Brownlie v Four Seasons Holdings Inc [2017] UKSC 80. It also has an interesting analysis of the circumstances in which the Brussels I (Recast) “Italian Torpedo” provisions will apply. Continue reading “Recent guidance on “good arguable case” test in jurisdiction challenges”

Supreme Court rules on “weaker party” in cross-border insurance claims

Although the Supreme Court’s rulings on vicarious liability and surrogacy costs may have stolen the limelight yesterday, eagle-eyed readers will have spotted the important jurisdiction decision in Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2020] UKSC 11. The Supreme Court, in overruling the Court of Appeal, made important comments on identification of the “weaker party” for the purposes of the insurance provisions of the Brussels Regulations. Continue reading “Supreme Court rules on “weaker party” in cross-border insurance claims”

Vedanta applied in Nigerian oil spill case

There are some interesting points in the recent decision of Stuart-Smith J in Jalla & Ors v Royal Dutch Shell Plc & Ors [2020] EWHC 459 (TCC).

This is a claim relating to an oil spill in 2011 on behalf of a very large number of individuals (in excess of 27,500) who live by or in the hinterland of a stretch of the coast of Nigeria that spans Bayelsa State and Delta State. In addition, the claim is brought on behalf of 457 villages and communities that are alleged to have been affected by the oil spill.

In general terms, the Claimants allege that responsibility for the 2011 spill lies with companies forming part of the Shell group. The Defendants deny liability on the basis, amongst other things, that no oil from the December 2011 spill reached the Claimants’ coastline or caused the damage that the Claimants allege. Continue reading “Vedanta applied in Nigerian oil spill case”

“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”

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?”

Thomas Cook mini-series – (2) Alternative avenues for claimants

This blog by Philip Mead forms part of a series on the aftermath of the collapse of the package holiday provider Thomas Cook. A previous blog covers the rights of injured claimants to pursue a remedy where a purchase was made with a credit card. Philip assesses other possible avenues against alternative defendants. Continue reading “Thomas Cook mini-series – (2) Alternative avenues for claimants”