On Friday 9 July 2021, Judgment was handed down in Markel Bermuda v Caesars Entertainment [2021] EWHC 1931 (Comm) by Mr Justice Bryan in the Commercial Court, following an expedited trial. Bryan J granted a final anti-suit injunction to the claimant insurer in support of a London arbitration clause. The Court also ordered rectification of the Policy which, when issued to the policyholder, omitted an endorsement containing the ubiquitous Bermuda form arbitration clause.
Caesars is the well-known operator of casinos in the United States. It brought a claim against Markel, an insurer based in Bermuda, in the District Court of Nevada in respect of business interruption losses arising from Covid-19. Caesars relied upon a Nevada jurisdiction clause in the issued insurance policy. Markel obtained an interim anti-suit injunction before Jacobs J holding the position over to an expedited trial. Following the expedited trial, Bryan J held that an arbitration agreement and a contract of insurance had been agreed prior to the issue of the policy wording to the broker which, by error, omitted the arbitration clause. The Court ordered rectification of the insurance policy (alternatively reformation under New York law as the putative proper law) and granted a final anti-suit injunction. The written judgment contains a comprehensive analysis of the legal principles governing conclusion of insurance contracts and arbitration agreements, reformation and rectification, and the principles governing final anti-suit injunctions.
The judgment is available here.
David Scorey QC and Edward Brown, instructed by Ian Plumley of Clyde & Co, acted for the Claimant.
