Category Archives: Judgments Regulation

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

Keefe question to go back to CJEU

In Cole and Others v IVI Madrid SL and Zurich Insurance Plc (Unreported) QBD, 24 September 2019, the court decided to refer to the CJEU the question of whether it was a requirement of art. 13(3) that, for an injured person to make a parasitic claim against the insured, the claim against the insured had to involve “a matter relating to insurance”.

The law in this important area has been in a state of flux since the parties to the litigation in Hoteles Pinero Canarias SL v Keefe [2015] EWCA Civ 598 compromised their dispute after the Supreme Court had referred the issue to the CJEU (Case C-491/17) but before the CJEU was able to give a response. The outcome of these proceedings may therefore prove highly significant for cross-border personal injuries practitioners. Continue reading Keefe question to go back to CJEU

Jurisdiction and foreign hotels post-Keefe

This blog post is by Spencer Turner of 12 King’s Bench Walk.

In Lackey v Mallorca Mega Resorts and Anor [2019] EWHC 1028 (QB), Master Davison held that the Claimant, who had been paralysed as a result of an accident at a holiday resort, could sue a Spanish hotel and its insurer in England.

There are three points of interest arising from this case:

  1. A party making an application to contest the jurisdiction later than 14 days post-acknowledgment of service must apply for relief from sanctions.
  2. Notwithstanding the Supreme Court’s decision to refer three questions to the CJEU in Hoteles Pinero Canarias SL v Keefe (Case C-491/17), this case suggests that the lower courts may be inclined to follow the Court of Appeal ([2015] EWCA Civ 598) in permitting the joinder of a foreign hotel to a direct claim against its insurer without re-referring those questions.
  3. However, Master Davison’s willingness to follow Keefe may also be explained by the availability of an alternative route to jurisdiction on the basis that the claimant was also suing as a “consumer” for the purposes of arts. 17 and 18 of the Recast Brussels Regulation. To qualify as a consumer, it was not necessary for the Claimant to be the member of her travelling party who had actually made the booking.

Continue reading Jurisdiction and foreign hotels post-Keefe