05 NOV 2015
Jurisdiction – Joining a Party – Insurance
(1) Mapfre Mutualidad Compania de Seguros Y Reaseguros SA and (2) Hoteles Pinero Canarias SL v Godfrey Keefe  EWCA Civ 598
Court of Appeal: Moore-Bick, Black and Gloster LJJ
12 February 2015
The exception to the general rule that a
defendant should be sued in their home member state was, in relation to
insurance, not limited to policy disputes.
In 2006, Godfrey Keefe suffered severe injuries
when an unsecured parasol at a hotel was lifted by a gust of wind and
penetrated the claimant’s eye. The hotel was owned by Hoteles Pinero Canarias
SL, the second defendant. The claimant initially pursued his claim in Spain;
however, following a ruling on another matter by the Court of Justice of the
European Union, the claimant brought his claim in England directly against the
second defendant’s liability insurers, the first defendant.
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The first defendant admitted liability, subject to extent and causation, in the defence. The court ordered judgment for the claimant with damages to be assessed. The defence notified the claimant, for the first time, that there was a cap on the insurer’s liability of €601,012.10 and so an application was issued to join the second defendant to the action, in order to recover any shortfall directly from the second defendant. The second defendant issued an application for an order that the English court had no jurisdiction to try the claim against it. The court dismissed the application, stating that the English court had jurisdiction to hear the claimant’s claim under Arts 9(1)(b) and 11(3) of the Judgments Regulation (EC No 44/2001), which state that an ‘insurer domiciled in a member state may be sued … in another member state’ and ‘if the law governing the direct action provides that … the insured may be joined as a party … the same court shall have jurisdiction over them’. The second defendant’s first appeal was dismissed and they appealed to the Court of Appeal.
The Court of Appeal held that Art 11(3) did apply to the claim. There was no possible justification to imply a restriction that Art 11(3) only applied where there was a policy dispute. If a policy dispute was required then this could result in different jurisdictions and would be likely to result in an increased risk of separate proceedings in separate Member States and irreconcilable judgments, especially in the current case as causation and quantum were still in issue. The point of Art 11 was to enable direct actions in the claimant’s domicile irrespective of whether there was a policy dispute, despite the fact that this was an exception to the general rule and therefore narrowly construed.
The Court of Appeal also held that if an insured party was joined to an action under Art 11(3) then the national court was bound to accept jurisdiction regardless of whether this was discretionary in the national court’s procedure. The appeal was dismissed.
Summarised by Adam Dyl and Jodee Mayer, Anthony Gold Solicitors