Following the Supreme Court’s determination as to jurisdiction (see our article) and the Court of Appeal’s ruling on the substantive issues, the case of Starlight Shipping v Allianz Marine( EWHC 3068 (Comm)) returned to the Commercial Court for two further issues to be decided.
Claim against individual underwriters
After the Court of Appeal had ruled that the Greek proceedings in question fell within the exclusive jurisdiction provisions of both the settlement agreement and the original insurance policy (see our blog here), the insured sought to bring a subsequent claim against the individual underwriters who had not been parties to the settlement agreement.
Flaux J held that, on its true construction, the use of ‘Underwriters’ in the settlement agreement must be construed as encompassing servants and agents of the Underwriters. He considered the fact that an explicit definition of the term had been offered, but did not regard this to be a decisive factor, instead deciding that it would defy business sense should the settlement agreement indemnify the corporate entity but not its agents.
In addition, it was held that the claim had also been settled by virtue of the common law principal of joint tortfeasors.
Claim for specific performance
Separately, the Lloyd’s insurers, which were parties to the settlement agreement, sought an order for specific performance of the agreement.
Having considered whether such a remedy would be equitable, Flaux J granted the order. He dismissed any notion that an order for specific performance would infringe upon Greek law, stating that the case was no more than a determination by the English court of rights and remedies under settlement agreements that are governed by English law. It was suggested that the award of such an order would provide the Greek court with clarity as to the position under English law and would further assist in the recognition and enforcement of the English judgments in Greece.