This case emphasised the principle that the courts will seek to enforce agreements between parties as to jurisdiction, but also reinforces the importance of making sure such agreements are clearly evidenced in writing.
In this case, the court considered the application of the Lugano Convention to a dispute about jurisdiction between a reinsurer and a loss adjuster. Cases of this type turn on the precise terms of the agreement between the parties so are necessarily very fact specific. Nevertheless, the judge gave a useful summary of the general principles set out in the authorities.
The claimant (R&V), a German reinsurance company, participated in a quota share reinsurance contract led by another reinsurer. The reinsurance faced a number of claims arising from the New Zealand earthquakes which occurred between September 2010 and June 2011 and the lead reinsurer and R&V agreed to instruct the defendant (Robertson) jointly to adjust the claims on their behalf. The long-running relationship between the lead reinsurer and Robertson was governed by a Master Agreement containing a English law and jurisdiction clause. There was no formal written agreement between R&V and Robertson for the instant loss adjusting services.
When a dispute arose about the standard of Robertson’s performance, R&V argued that its agreement with Robertson was on the terms of a Master Agreement with the lead reinsurer, and therefore governed by English jurisdiction, in accordance with Article 23 of the Lugano Convention. Robertson argued that the terms of the Master Agreement did not govern its relationship with R&V.
The Lugano Convention deals with issues of cross-border jurisdiction between EU member states, plus Iceland, Norway and Switzerland. Article 23 provides that where the parties have agreed that the courts of a particular contracting state shall have jurisdiction, that agreement is binding. Article 23 also provides that any agreement must be in writing or evidenced in writing. The question for the court in this case was whether or not their relationship was subject to the terms of the Master Agreement and therefore the agreement on applicable jurisdiction.
In his judgment, the judge set out the general principles derived from case law, and applying those to these facts found there was a good arguable case that, other than in relation to certain financial terms, R&V, the lead reinsurer and Robertson agreed to proceed in accordance with the Master Agreement, and that such agreement was recorded in writing. He based this finding on contemporaneous documents, which showed R&V had requested a copy of the agreement leading to a reasonable assumption that it would join the agreement as part of joining the instruction, and strongly implied that the parties were proceeding on this basis.
He rejected an argument from Robertson that the Master Agreement was plainly not intended to apply since a number of its clauses were irrelevant to the instruction by R&V. He also referred to the principle that an agreement as to jurisdiction for the purposes of the Lugano Convention was an independent concept of EU law, so even if the agreement as a whole had been void or invalid as a whole as a matter of English law, this would have been irrelevant to the question of the agreement on jurisdiction. In effect, it was severable from the rest of the agreement.