Clyde & Co (Michelle Crorie and Erina Kawai) for claimant
Insurers issued, broadly, two types of policies to the insured: global liability policies issued in England covering companies in the insured's group, including an Australian subsidiary, and a "broadform" liability policy issued in Australia in favour of the insured's Australian subsidiaries. When a dispute arose, insurers issued proceedings in England seeking declaratory relief in relation to the global policies, and the insured's Australian subsidiary subsequently issued proceedings in Australia, seeking an indemnity under both the global policies and the Australian policy. Insurers sought an anti-suit injunction to restrain the Australian proceedings insofar as they relate to the global policies, and the subsidiary sought to set aside permission to serve out for the English proceedings.
The key issue in the case was therefore whether England was the appropriate forum to hear the claim relating to the global policies. They did not contain a jurisdiction clause but did provide that "The Insurer proposes that the policy will be governed by the laws of England and Wales, unless the Insured and the Insurer agree otherwise". The insurer and insured did not agree otherwise, and so Blair J held that the policy was governed by English law. Even if there had not been an express clause, the policies would be governed by English law since they were issued by the English branch of AXA (see Articles 4 and 19 of the Rome I Regulation).
After taking into account the various factors involved in the case, Blair J concluded that England was the appropriate forum to hear the claim under the global policies: "In a relatively balanced debate, the point that seems to me decisive is that the global policies are subject to what is in effect a choice of English law. Further, they stand at the apex of the worldwide, integrated liability insurance programme which AXA at the material time provided for the Weir group, with local policies in various different countries coming in beneath. Further and importantly, the evidence is that this form of global policy is widely used by AXA and in general such policies are governed by English law. I accept AXA's submission that it is desirable that key provisions of such policies (including something as fundamental as the definition of "Product") should be construed by the English courts".
The judge drew support for this conclusion from prior caselaw and textbook commentary, for example an extract from Dicey and Morris, Conflict of Laws, stating that "In cases concerned with insurance written on the London market and governed by English law, there is a strong tendency for the court to consider England as the natural forum". However, the judge declined to grant an anti-suit injunction (even though the commencement of the Australian proceedings had plainly been "tactical").
Accordingly, proceedings are to continue in both England and Australia.