The English claimant was injured whilst staying at a Spanish hotel. The hotel had public liability insurance with a Spanish insurer, but the limit of liability under the policy was lower than the alleged value of the claim.
Under Spanish law, the claimant has a direct right of action against the insurer. She commenced proceedings in England against both the insured and the insurer, relying on Articles 11 and 13 of the recast Regulation 1215/2012. Article 11 provides that an insurer may be sued in the Member State courts where the claimant is domiciled. Article 13(3) provides that, in respect of direct action claims against a liability insurer, "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".
In Keefe v Mapre Mutualidad , where the facts were almost identical to this case, it was held by the Court of Appeal that the English court had jurisdiction over both the insurer and the insured. In this case, the insured challenged the English court's jurisdiction and alleged that Keefe was now inconsistent with subsequent European jurisdiction. Master Davison held as follows:
(1) Although the insured's challenge to jurisdiction was brought late (a month late, where the deadline had been 14 days), relief from sanctions was granted on the basis that there had been a change of solicitors (and a change of opinion as to the stance to be taken to jurisdiction), the claim was for £9 million and jurisdiction was a central issue.
(2) Keefe remained good law and there is no need for there to be a dispute about policy coverage between the insurer and the insured for the claim to be a "matter relating to insurance" and for Article 13(3) to bite. In any event, there was such a dispute involved in this case, with it being unclear which of two policies issued by the insurer responded to the accident. The Regulation allows an "anchoring" claim to be made here against the Spanish insurer and Article 13(3) then allows a "parasitic" claim against the Spanish insured to be added – the policy objective being to discourage multiplicity of proceedings and the possibility of conflicting judgments.
(3) The claimant was also entitled to bring her claim against the Spanish hotel in England on the basis that she is a consumer.