In early 2013, the claimant German reinsurer appointed the Swiss defendant to provide loss adjusting services. This was a joint instruction with another reinsurer, which had already entered into a Master Agreement with the loss adjusters. The issue in this case was whether the exclusive English jurisdiction clause in the Master Agreement governed the relationship between the claimant and the loss adjusters.
Article 23 of the Lugano Convention (which is materially the same as Article 25 of the recast Brussels Regulation), provides that, where one or more of the parties is domiciled in a Convention country and the parties have agreed that the courts of a Convention country will have jurisdiction, the courts of that country will have jurisdiction, provided that the agreement is "in writing or evidenced in writing".
Waksman HHJ noted that prior caselaw has confirmed that the actual provision of a copy of the relevant terms is not required where a party has clearly accepted them by reference.
Furthermore, jurisdiction clauses are not always automatically incorporated where there is reference to standard terms. So, for example, in The Ethniki , where a reinsurance contract contained the express words "conditions: wording as original", that was not sufficient to incorporate the jurisdiction clause in the underlying insurance contract.
The judge concluded that here, although not all the terms of the Master Agreement were incorporated into the instruction by the claimant, "it would be odd if one of the jointly instructing parties had a clause in favour of England whereas for the other party, jurisdiction was at large. It also means that it cannot be said that [the loss adjusters] would have had some objection in principle to an English jurisdiction clause, had it been asked to consider that matter because (as all the documents suggest), it already accepted that it was contracting with [the other reinsurer] on the basis of the Master Agreement". Furthermore, "the very fact of a joint instruction commercially supports the notion of instructions on the same terms".
Accordingly, the claimant had the better of the argument that its instruction was subject to English jurisdiction, and hence the loss adjusters' application to set aside service on it was dismissed.