On 21 November 2018 the Court of Appeal handed down judgment in Aspen Underwriting v. Credit Europe Bank NV [2018] EWCA Civ 259, a case concerning the rules of jurisdiction in ‘matters relating to insurance’ under the Brussels Re-Cast Regulation 1215/2012.
Among the issues considered was whether the third defendant bank, which is domiciled in the Netherlands and was a ‘beneficiary’ of an insurance policy as an assignee and loss payee, could be sued in England by underwriters notwithstanding Article 14(1) of the Regulation, by which ‘an insurer may bring proceedings only in the courts of the Member state in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured, or a beneficiary’.
Differing from the analysis at first instance, the Court of Appeal decided that a beneficiary of insurance may not rely on Article 14(1) if: (a) as an ordinary incident of its business, it is involved in the commercial or professional settlement of insurance-related claims; or (b) its business was analogous to that of an insurance professional (see: [117]-[120]).
The Court found jurisdiction in respect of claims in tort. Nonetheless, applying Kleinwort Benson v. Glasgow [1999] 1 AC 153 (HL), the Court declined jurisdiction over claims in unjust enrichment, which were not ‘matters relating to tort’.
Steven Berry QC and Adam Board, instructed by Kirsty MacHardy of Campbell Johnston Clark, acted for the third defendant.
