The Court of Appeal has held that a claimant could bring a claim in tort against a Spanish hotel company in England, the claimant’s domicile, where the claimant also had a direct claim here against the company’s insurer. There was no requirement that the claim against the company concern the underlying insurance policy: Mapfre Mutualidad Compania de Seguros Y Reaseguros SA v Hoteles Pinero Canarias SL and Godfrey Keefe [2015] EWCA Civ 598.

This decision demonstrates that an insured, and its insurer, may face claims in a number of different EU jurisdictions arising out of the same matter, even where the event and damage all occur in the insured’s home country. The same law should apply to most of the claims wherever they are heard, but where you have a multiplicity of proceedings, there is clearly scope for inconsistent judgments, as well as increased costs and management time in defending claims.

Background

Where a claimant sues an EU domiciled defendant in tort, he can generally sue in the defendant’s domicile or in the place where the harmful event occurred. This has been interpreted as being either where the act occurred or where the direct damage was suffered.

So where, as in this case, an accident occurred in Spain and the hotel company alleged to be negligent was Spanish, the starting point is that proceedings need to be brought in Spain.

If the negligent party is insured by an EU insurer, the claimant may however have the right to sue the insurer direct in the claimant’s domicile. This is because the special jurisdiction rules for matters relating to insurance, in articles 8 to 11 of the Brussels Regulation (No 44/2001) (now articles 10 to 13 of the recast Brussels Regulation (No 1215/2012)), have been interpreted as applying to actions brought by injured parties directly against an insurer, where such direct actions are permitted (article 11(2)). This is regardless of whether the claim is characterised under the applicable law as being a tort claim or a matter relating to insurance (Odenbreit v FBTO Schadeverzekeringen NV (Case C-463/06, [2008] 2 All ER (Comm) 733).

English substantive law does not of course generally permit a direct action against an insurer, but under English conflicts rules, this is a matter for the substantive law or laws governing the claim, so if the applicable law allows such direct actions, the English court will not refuse jurisdiction on this basis. In this case, as Spanish law applied and it allows a direct action against an insurer, the English claimant was able to commence proceedings against the insurer in England.

The main question before the Court of Appeal was whether the claimant could then join the Spanish insured, the hotel, to the English proceedings in order to claim uninsured losses, relying on article 11(3) of the Brussels Regulation. This provides:

“If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.”

Decision

The court decided that the law referred to in article 11(3) was the law applicable to the claim, Spanish law. That permitted the insured to be joined to the action. It rejected the hotel’s submission that the claim against it was not a “matter relating to insurance” but rather a tort claim; there was no justification for construing article 11(3) as meaning there had to be a policy dispute (consistent with the interpretation of article 11(2) in Odenbreit).

The argument that the insured had a legitimate expectation that it would be sued in Spain, on grounds of certainty and predictability, was also rejected. Given it was running a hotel intended to attract tourists from throughout the EU, the court thought it had no basis for an assumption that it was immune from article 11(3), just because the tourists might have a variety of domiciles.

According to Lady Justice Gloster, who gave the lead judgment, there was no requirement of a close connection or risk of irreconcilable judgments such as exists in other parts of the Regulation, although if there had been, such a test would have been satisfied. She also considered the court had no discretion to decline jurisdiction under article 11(3) if its requirements were satisfied. Lord Justice Moore-Bick and Lady Justice Black are less clear on whether a discretion exists; Lord Justice Moore-Bick appears to consider there is a discretion while Lady Justice Black expresses no concluded view. Both clearly agree, however, that any discretion would in any event be exercised in favour of the claimant in this case.

Comment

The effect of the court’s decision is that the English court had jurisdiction over a Spanish insurer and its insured, a Spanish hotel, in respect of an accident in Spain because the claimant was English domiciled.

In this case the tort affected one individual. This will not always of course be the case. It is easy to foresee circumstances where an alleged tort in one EU country gives potential claims to individuals and companies domiciled in a number of other EU countries. In such circumstances, this case demonstrates that EU insurers and insureds may be required to defend themselves in each of those countries.

In the present case, the claimant was able to claim higher damages in English proceedings than he would have been able to in Spain. This is because English law provides for higher damages for personal injuries in some respects than Spanish law, and quantification of loss is considered a procedural matter, and therefore a matter for the law of the forum, under the rules determining the governing law in Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (which applied in this case). The position has changed under Rome II (No 864/2007), which applies to accidents occurring on or after 11 January 2009. Under Rome II damage is quantified by the law of the country in which the damage occurred.

Commencing English proceedings will therefore not lead to any benefit in terms of quantification of damages in the future. It is however still a potential advantage for a claimant to be able to sue in its own domicile so the case remains of ongoing relevance.