Insurance And Reinsurance - 8 March, 2013

FSA v Sinaloa Gold Plc & Ors

Supreme Court rules on whether the FSA should be required to give the normal cross-undertaking to third parties on a freezing order application

http://www.bailii.org/uk/cases/UKSC/2013/11.html

The earlier decisions in this case have been reported in Weekly Updates 18/11 and 38/11. Applicants for a freezing order usually have to give a standard form of undertaking to pay any damages sustained by either the respondent to the application or any third party if they suffer loss as a consequence of the order (and it subsequently transpires that the grant of the order was not justified). In the case of third parties, though, they are protected whether or not the grant of the order was justified. In this case, the FSA argued that it should not be compelled to give the standard undertaking, on the basis that it should not be liable in damages for anything done or omitted in the discharge of its functions. At first instance the judge held that a law enforcement body should give the usual third party undertaking as to damages, but this was reversed by the Court of Appeal. The Supreme Court has now rejected an appeal from that decision.

Although the Supreme Court was somewhat critical of the earlier House of Lords decision in F Hoffmann-La Roche v Secretary of State for Trade and Industry [1975], it upheld the general distinction in that case drawn between private litigation and public law enforcement. This is because: “a public authority is seeking to enforce the law in the interests of the public generally, often in pursuance of a public duty to do so, and enjoys only the resources which have been assigned to it for its functions. Other than in cases of misfeasance in public office ...it remains the case that English law does not confer a general remedy for loss suffered by administrative law action”. Accordingly, the FSA should not be required to give a cross-undertaking as a matter of course or without considering what is fair in the particular circumstances of a case. Nor could any distinction be drawn with Hoffmann-La Roche on the basis that that case concerned an undertaking to the respondent and not a third party.

Navig8 PTE v Al Riyadh

Jurisdiction arguments in relation to applications for anti-suit injunction and negative declarations

http://www.bailii.org/ew/cases/EWHC/Comm/2013/328.html

A dispute arose between a Jordanian company and a Singaporean company. The Jordanian company commenced proceedings in Jordan...