Weekly Update: A Summary of Recent Developments in Insurance, Reinsurance and Litigation Law - 29/10

THIS WEEK'S CASELAW

Homawoo v GMF Assurance

Temporal scope of Rome II Regulation

http://www.bailii.org/ew/cases/EWHC/QB/2010/1941.html Rome II (Regulation (EC) 864/2007) introduced a new uniform EU-wide regime for determining the law applicable to non-contractual obligations. Of issue in this case is its temporal scope.

The regulation came into force on 20 August 2007 (in accordance with the EC Treaty then in force). Article 31 (Application in Time) of the regulation provides that "This Regulation shall apply to events giving rise to damage which occurs after its entry into force". Article 32 (Date of Application) provides that "This Regulation shall apply from 11 January 2009". There is therefore confusion as to whether the regulation applies to events giving rise to damage which occur on or after 20 August 2007 or on or after 11 January 2009.

Slade J said that her preliminary view of the issue is that Article 32 was not a reference to the commencement or determination of legal proceedings and that there would be legal certainty if Article 31 was construed as applying to events giving rise to damage which occur on or after 11 January 2009 (irrespective of whether litigation were to be or had been commenced). She said there was no reason why Rome II should only apply where legal proceedings have been commenced or are determined by a court. However, she went on to find that, given the clear language of Article 31, she could not reach such a determination without a ruling from the European Court of Justice.

Axa Corporate Solutions v National Westminster

Whether terrorism excluded from cover under public liability and products liability Policy

http://www.bailii.org/ew/cases/EWHC/Comm/2010/1915.html Clyde & Co case

In 2005, Nat West was sued in the USA by victims of Hamas suicide bombings in Israel who allege that a British charity, Interpal, is a fundraiser for Hamas and that it collected donations through Nat West bank accounts. Nat West notified its insurer of potential claims under its public liability and products liability ("PPL") combined policy for the policy years when the relevant suicide bombings occurred. Of issue in this case was whether the policy in question contained an express term excluding liability for terrorism (the insurer sought a declaration that it did).

Much of the case therefore turns on the particular factual events surrounding the renewal for the policy. Hamblen J (having agreed that it made no difference if Nat West, or its parent company RBS Group, were ignorant of the fact that the insurer had told RBS/Natwest's broker that it would only renew on terms which included a terrorism exclusion) accepted that a terrorism exclusion had been included in the PPL policy.

The exclusion was agreed in the following terms: "Terrorism exclusion (wording to be agreed)". Hamblen J rejected the argument that this did not amount to an effective agreement to a terrorism exclusion in the absence of any wording being agreed. He said that the further wording was not an essential term of the contract: "The fact that the parties then contemplated a fuller expression of the same exclusion in a wording subsequently to be agreed could not and does not undermine the fact that the exclusion was cast in terms which are capable of both interpretation and application. It is a common feature of the London market that parties contemplate a fuller wording to follow the slip or short-form statement of their agreed terms".

The insured also sought to argue that the exclusion should be construed as referring only to an act of terrorism affecting premises owned or occupied by it. The judge said that it would not be appropriate for him to seek to construe the term agreed in the abstract. If the insured wished to have the term construed by the courts, it should make a separate application to the court.

Cooper Tire v Dow Deutschland

Article 28 of EC Regulation 44/2001 and related proceedings

http://www.bailii.org/ew/cases/EWCA/Civ/2010/864.html This case involved alleged anti-competitive practices. The alleged infringers commenced proceedings in Italy, seeking a declaration that there had not been a cartel. Certain of the defendants in those proceedings then commenced proceedings in England. The alleged infringers then sought a stay of the English proceedings, inter alia, pursuant to Article 28 of EC Regulation 44/2001. Article 28 provides that where related actions are...

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