The insurers asked the Court to decline jurisdiction to hear the case in favour of an English court in circumstances where the slip stated that coverage disputes would be governed by the law of England and Wales and conferred jurisdiction on the English courts. The plaintiffs claimed that the reference to English law in the slip and evidence of cover was a mistake. The slip referred to the policy wording however there were two forms of policy wording in use at the time, an “English” version and an “Irish” version.
Ms Justice Laffoy considered the Brussels Regulation and case law from both the Irish courts and the European Court of Justice (ECJ). The Brussels Regulation provides that an insurer may be sued in a Member State where it is domiciled or in the courts of the Member State where the insured is domiciled. However, Article 23 of the Brussels Regulation states that the parties to an insurance contract may agree that the courts of a particular Member State, where one of the parties to the contract is domiciled, are to have exclusive jurisdiction.
Both the ECJ and the Irish Supreme Court have confirmed that for Article 23 to apply it must be the subject of a clear and precise consensus between the parties. Where there is a dispute as to whether or not the contract provides for an exclusive jurisdiction, the party claiming exclusive jurisdiction must show that both parties clearly agreed to the provision.
Ms Justice Laffoy concluded that the threshold of clear and precise consensus had not been met as there was no actual contract providing for exclusive jurisdiction. There was complete conflict between the parties as to what was agreed. Therefore the defendant’s application that the Irish court should decline jurisdiction in favour of an English court was dismissed.
Lartigue Enterprises reaffirms the principle that in order to avail of Article 23 of the Brussels Regulation a party to a contract must show clearly and precisely that the consensus of the parties was that exclusive jurisdiction would be conferred on the courts of a particular jurisdiction.
Lartigue Enterprises should serve to highlight that a failure to make specific provision for exclusive jurisdiction in an insurance policy will most likely lead to an outcome whereby an insurance company will not be able to avail of Article 23 if it has not obtained the consent of the insured party.