New authority on Service Regulation and insurance provisions of Brussels I (Recast)

In The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] EWHC 1920 (Comm), Butcher J considered four related Part 11 applications arising in four related sets of court proceedings.

The factual background involved claims against the states of Spain and France for failures to honour arbitral awards or to abide by judgments of the courts of England and Wales.

The points of interest for the purposes of this blog are these:

  • Confirmation that the Service Regulation – and not the regime set out in s. 12 of the State Immunity Act 1978 – applies to claims against EU Member States, save where the claim concerns acts of state authority.
  • A useful summary of the authorities concerning whether there is a “serious issue to be tried” for the purpose of applications to serve out of the jurisdiction.
  • Distillation of the principles concerning what qualifies as a “matter relating to insurance” following the recent decision of the Supreme Court in Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2020] UKSC 11.
  • Consideration of key terms in Section III of Brussels I (Recast) – in particular, “beneficiary” and “injured party” – plus a determination of whether a state bringing a subrograted claim in respect of sums paid out under state compensation schemes can properly be characterised as a “weaker party” for the purposes of Section III.
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High Court denies Nicolás Maduro access to $1 billion in Venezuelan gold held by Bank of England

This blog is by Megan Griffiths.

It is rare that a trial of preliminary issues in the Commercial Court attracts as much mainstream media attention as Deutsche Bank v Receivers / Central Bank of Venezuela v Bank of England [2020] EWHC 1721 (Comm). But the issues determined in the judgment handed down by Mr Justice Teare earlier this month make it unsurprising that it has: access to a billion dollars in gold is at stake, a political rivalry is centre stage, and the court had the delicate task of adjudicating foreign affairs of state. The judgment looks at the delicate interplay between the courts, our government, and foreign states. This not only makes for a fascinating set of facts but also a judgment that has implications for international relations well beyond the Commercial Court.

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Shipbreaking, applicable law, and the duty of care

In this blog post John-Paul Swoboda and his pupil, Cressida Mawdesley-Thomas, consider the recent judgment of Jay J in Begum (on behalf of Mollah) v Maran (UK) Ltd [2020] EWHC 1846 (QB).

This judgment is well worth reading for at least two reasons. First, it highlights the dangerous practice of shipbreaking on tidal beaches such as Chittagong in Bangladesh. Second, whilst only considered briefly at the end of the judgment at [83], Jay J left open the possibility that English Law was applicable if the case came within the ambit of Article 7 of Rome II, which deals with environmental damage.

This case is one to watch: if his purposive (and extremely broad) interpretation to Article 7 is accepted at trial, then this could have wide-reaching implications for the law that governs international torts.

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High Court applies Spanish Baremo

In this blog, David White considers Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB).

This is an important judgment in that it is (as far as the writer is aware, at least) the first reported decision of one of the senior courts of England and Wales (High Court or above) regarding the application of the Baremo. The Baremo is the tariff for assessment of damages in Spanish RTA cases.

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European Commission begins infringement proceedings against Member States for failure to comply with EU law on protecting the rights of consumers and travellers

In the ongoing refunds saga, the EU has, as of 2 July 2020, begun infringement proceedings against the Czech Republic, Cyprus, Greece, France, Italy, Croatia, Lithuania, Poland, Portugal and Slovakia on the grounds that their national rules infringe EU law on consumers’ and travellers’ rights. In this blog, Spencer Turner updates us on the current position.

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Comity, performance, and illegality under foreign law

This blog by Achas Burin considers the recent case of Colt Technology v SG Global Group [2020] EWHC 1417 (Ch).

Colt Technology, a company incorporated in the UK, successfully applied to restrain a winding up petition sought by SG Global (‘SGG’), an Italian company.

The court based its judgment on the principle in Ralli Brothers v Compania Naviera Sota [1920] 2 KB 28 regarding contractual performance which may be illegal under foreign law. This blog considers the modern effect of that principle and its relationship with the principle of international comity and the modern English doctrine of illegality as defined in Patel v Mirza.

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Default judgment against anchor defendant closes the “necessary and proper party” service gateway

This blog by Henry King considers the recent decision in Satfinance Investments Limited v Inigo Philbrick and ors [2020] EWHC 1261 (Ch). The key point in this case was Chief Master Marsh’s interpretation of the CPR 6BPD 3.1(3) “necessary and proper party” service gateway. This is a significant decision for those involved in cross-border claims involving multiple parties.

The 3.1(3) gateway allows parties suing an “anchor defendant” to serve proceedings on foreign-domiciled persons who are “necessary or proper parties” to the claim against the anchor defendant.

But there is a threshold test to this gateway, which is that there must first be “between the claimant and the defendant a real issue which it is reasonable for the court to try” (emphasis added).

Chief Master Marsh interpreted this as meaning that, if default judgment has been, or likely will be, entered against the anchor defendant, then there will be no issue for the court to try.

In those circumstances, the 3.1(3) gateway will not apply and jurisdiction cannot be established against the non-anchor defendants under it.

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Jurisdiction clauses – they mean what they say

In this blog, Spencer Turner considers the recent decision of Ridley v Dubai Islamic Bank PJSC [2020] EWHC 1213 (Comm). The background to this case is unusual, extensive and interesting. The key points are these:

  • What happens when (i) the claimant gets permission to serve abroad; (ii) the defendant challenges the grant of permission; but (iii) it turns out that no permission was needed at all? This was the question raised by the judge in this case (presumably to the relief of the Claimant) while writing his judgment. Generally, a party will be entitled to assert the true basis for jurisdiction rather than having to start all over again.
  • Perhaps an obvious point, but parties must take great care when drafting contractual jurisdiction clauses. A jurisdiction clause which covers “all” disputes relating to a particular subject matter means what it says. It even covers disputes that were unforeseen at the time.
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Anti-suit injunctions: lessons from two recent cases

The High Court has a general power to grant injunctions under s. 37(1) of the Senior Courts Act 1981. An “anti-suit injunction” orders a party to cease to pursue, or not to commence, court proceedings. It may be granted where foreign proceedings will infringe a relevant substantive legal or equitable right (such as a contractual jurisdiction clause). Where no substantive legal or equitable right is infringed, an anti-suit injunction will generally only be granted where England is the natural forum for the proceedings and the foreign proceedings are “vexatious” or “oppressive”.

Two recent judgments, considered by Christopher Fleming, provide a useful insight and overview of the issues surrounding applications for anti-suit injunctions. This article reviews the observations made in both decisions that deal with issues of delay and the principles of comity in such applications.

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Odenbreit and territorial restriction clauses: a new twist from the CJEU

In Case C‑581/18 RB v TÜV Rheinland LGA Products GmbH, Allianz IARD SA, the CJEU rejected a challenge to a territorial restriction clause in a liability insurance contract brought on the basis that it amounted to discrimination on grounds of nationality contrary to art. 18 TFEU. The ruling may be said to represent a blow to Hutchinson v Mapfre España Compañia de Seguros Y Reaseguros SA and another [2020] EWHC 178 (QB), which we considered separately here. But it seems to me that there are ways to reconcile the two, which are considered below.

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