On 1 April 2020, the UK Supreme Court ruled in Aspen Underwriting Ltd v Credit Europe Bank on the concept of insurance matters under the Brussels I bis Regulation and the scope of the protection it offers.
The background of the case was the loss of a vessel which took fire and then sank in the Gulf of Aden in 2013. The owners of the vessel negotiated a settlement agreement with the insurers (Aspen Underwriting) for a sum of $ 22m.
Before the loss, a Dutch Bank, Credit Europe, had funded the re-financing of the vessel and, in exchange, was assigned the insurance policy. However, the Bank did not participate in the negotiations after the loss and, at the request of the owners, issued a letter to the insurers requesting that they pay any claim to a nominated company, which the insurers eventually did.
Three years after the loss, it appeared that the owners had deliberately sunk the vessel in the Gulf of Aden. The insurers sued both the owners and the bank in London pursuant to an exclusive jurisdiction clause contained in the insurance policy. The bank challenged the jurisdiction of the English courts.
Two issues arose. The first was whether the jurisdiction clause was binding on the bank. The second was whether the bank could benefit from the special provisions relating to insurance matters in the Brussels Ibis Regulation, in particular Art 14 which provides that insurers may only bring claims in the court of the domicile of the beneficiary of the insurance.
Assignment of the Jurisdiction Clause
The bank was not a signatory of the insurance policy. It had been assigned the policy. Under the case law of the CJEU (Coreck, Case C-387/98), a third party will be bound by a clause if it became a successor to a party under the applicable national law. In this case, the applicable national law was English law.
The Supreme Court held that, under English law, the bank was not bound by the jurisdiction clause.
26. The Bank’s entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee. It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations (…). An assignment of contractual rights does not make the assignee a party to the contract. It is nonetheless well established that a contractual right may be conditional or qualified. If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question.
The bank, therefore, could have asserted its assigned rights in a way that was inconsistent with the terms of the Policy, including the jurisdiction clause. But the Supreme Court held that the bank had not:
29 In the present case the Bank did not commence legal proceedings to enforce its claim. Indeed, it did not even assert its claim but left it to the Owners and the Managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement. It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement. The Letter of Authority, which the Bank produced at the request of the Owners and the Managers, enabled both the Insurers and Willis Ltd to obtain discharges of their obligations and to that end it was attached to the Settlement Agreement. The Letter of Authority facilitated the settlement between the Insurers and the Owners and provided the Owners/Managers with a mechanism by which the Bank as mortgagee, assignee and loss payee could receive its entitlement. At the time of payment of the proceeds of the Policy there was no dispute as to the Bank’s entitlement and no need for legal proceedings. There was therefore no inconsistency between the Bank’s actions and the exclusive jurisdiction clause. The Bank therefore is not bound by an agreement as to jurisdiction under article 15 or article 25 of the Regulation.
Matters Relating to Insurance
If the jurisdiction clause did not Apply, what was the applicable ground for jurisdiction? Was it the general rule for misrepresentation (Art 7(2)), or could the bank benefit from the special provisions in the Brussels Ibis Regulation on matters relating to insurance?
The insurers argued that these provisions were only available if the subject matter of the claim was, at least in substance, a breach of an obligation contained in, and required to be performed by, an insurance contract. The Supreme court rejected the argument as follows (from the Press Sumary of the Court):
The Supreme Court finds that the Insurers’ claims against the Bank are “matters relating to insurance” within the meaning of section 3 of the Regulation . The Supreme Court notes that the title of section 3 is drafted in broader language than other sections of the Regulation, which refer to individual contracts . It is also significant that the scheme of section 3 is concerned with the rights not only of parties to an insurance contract but also of beneficiaries and injured parties, who will typically be non-parties . The recitals to the Regulation do not operate to narrow the scope of section 3 . Whereas EU case law indicates that articles derogating from the general rule in article 4 should be interpreted strictly, article 14 operates to reinforce article 4 and so need not be read narrowly . Even if section 3 were to apply only to claims based on a breach of an individual insurance contract, the insurance fraud alleged by the Insurers would inevitably entail a breach of the Policy .
Is there a Weaker Party Exception for Insurance Contracts?
Finally, the lower courts had ruled that the rationale for the special provisions on insurance matters were to protect weaker parties, and that the bank was not one.
The argument is rejected by the Supreme Court on the following grounds (from the Press Sumary of the Court):
The Supreme Court holds that there is no “weaker party” exception to the protection of article 14 . Article 14 protects certain categories of person because they are generally the “weaker party” in a commercial negotiation with an insurance company, not because of their individual characteristics . Whilst recital (18) explains the policy behind section 3, it is the words of article 14 which have legal effect . Article 14 refers to the policyholder, the insured and the beneficiary without further qualification and derogations from the jurisdictional rules in matters of insurance must be interpreted strictly [46, 57]. In any case, it would undermine legal certainty if the applicability of section 3 were to depend on a case by case analysis of the relative strength or weakness of contracting parties. This is why the Court of Justice of the European Union (“CJEU”) has treated everyone within the categories identified in article 14 as protected unless the Regulation explicitly provides otherwise [47-49]. The CJEU only has regard to recital (18) in deciding whether to extend the protections of article 14 to persons who do not fall within the identified categories, not to decide whether a particular policyholder, insured or beneficiary is to be protected [50-56]. Further, in deciding whether to extend the protections of article 14 in this way, the CJEU seeks to uphold the general rule in article 4 .