On The Application Of Res Judicata (Or Disarming The ''Italian Torpedo'')

• Published date: 20 December 2021
• Subject Matter: Insurance, Insurance Laws and Products
• Law Firm: 1 Chancery Lane
• Author: Mr Jack Harding

1. All travel litigation practitioners will be familiar with the concept of the 'Italian Torpedo', but for those amongst us lucky enough never to have seen one approaching on their radar, a brief explanation is called for.

2. Italian torpedo is the colloquialism for a tactic which has abound in private international law for many years. It entails a prospective defendant to a civil action issuing proceedings in his home court, in an effort to seize those courts and to frustrate the Claimant in pursuing his own claim in his home courts.

3. However, the spectre of a torpedo need not spell the end of a claim, provided the correct steps are taken to address the issue.

4. In a recent case the authors had the opportunity to consider just such a situation. The issue was ultimately resolved without judicial consideration, but the unusual facts provided a number of useful learning points.

The factual background

5. The Claimant (MK') was injured in a road traffic accident that occurred during the course of a motorcycle touring holiday in Northern Spain.

6. The accident happened on the 11th October 2019 on a mountain road near Arenas De Cabrales when MK, in the process of overtaking a Spanish 'motorhome', was struck by the vehicle, causing him to come off his bike and sustain injury.

7. A letter of claim was sent to UK Handling Agent of the Spanish foreign insurer ('SFI') in October 2019 and they responded, in January 2020, advising that liability was denied.

8. In February 2020, SFI's English solicitors confirmed that they were nominated to accept service of proceedings. The Claim was issued September 2020 and served on the English solicitors in October 2020.

9. Following service of proceedings, SFI filed an acknowledgment of service, indicating an intention to contest jurisdiction.

10. Unbeknownst to MK, SFI had issued a claim in July 2020 in the Spanish Court closest to the accident location, against the Spanish Green Car Bureau, OFESAUTO, in their capacity as agents of MK's motorcycle insurer, MCE Insurance Ltd.

11. The Claim was for just '738, this being the sum that SFI had to pay their own insured in respect of the damage to her own vehicle. It was, therefore, a claim arising out of an insurance obligation, i.e. SFI's obligation, pursuant to the insurance contract, to indemnify their own insured.

12. Following the filing of the Acknowledgment of Service, SFI made a formal application, pursuant to CPR 11, to contest jurisdiction. They applied for MK's claim before the English Court to be struck out on the basis that there were related proceedings, within the meaning of Articles 29 and /or 30 of Regulation (EU) 1215/2012 (the Lis Pendens provisions).

13. This was, therefore, the archetypal torpedo. The key to disarming it lay in a careful investigation into the nature of the Spanish proceedings themselves.

14. The Spanish court documents, obtained via a Spanish lawyer, revealed that SFI had issued a claim against OFESAUTO, rather than issuing a claim against either (1) MK directly or (2) MCE Insurance, his insurers.

15. It may be that the reason for taking this approach was because of a concern that they would not be able to establish jurisdiction against MK or MCE, pursuant to Regulation (EU) No 1215/2012 ('Recast Brussels') because their claim was 'a matter relating to insurance', not a claim in tort. Article 14 provides that

Without prejudice to Article 13(3), 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.

16. Spanish Law advice also suggested that OFESAUTO could not be sued by an insurance company, because the Spanish rules governing the operation of OFESAUTO had to be interpreted and applied in a way that is consistent with the Codified Motor Directive 2009/103. The Directive only permits an...