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It’s been four years since conflict lawyers were left with the ‘Keefe question’ echoing in their ears. But now comes the time to launch those seashells back into the ocean because today, thank you to the CJEU’s ruling, we finally have an answer.
For those of you who are not familiar with the ‘Keefe question’ perhaps you were washed away by the incoming tide and missed the excitement. But here is a quick summary… The case of Keefe arose out of a claim brought by a Claimant domiciled in England. He suffered severe personal injuries while staying at a hotel in Spain. A direct action was brought against the hotel’s liability insurer, with jurisdiction established under the special rules relating to insurance under Council Regulation (EC) 44/2001 (Brussels I, latterly amended to the Brussels I recast regulations). However, it was later discovered that there was a limit of indemnity under the insurance policy which was significantly less than the estimated £5 million of damages claimed. In order to recover any uninsured amount, the Claimant joined the hotel as a second defendant, citing art.11(3) (which is now art.13(3) in the recast regulations) in respect of jurisdiction. The Court of Appeal held that the joinder was allowed and jurisdiction of the English court over the claim against the hotel was established.
The ‘Keefe question’ concerns whether Article 13(3) of Regulation No 1215/2012 (Brussels I recast) is to be interpreted as meaning that an insured can always be joined to an action taken against an insurer under which jurisdiction has been established under the special rules on insurance or if it is limited to situations where there is a policy dispute.
In Tattersall v Occidente, the CJEU ruling today concerned a personal injury claim arising out of an accident at the insured’s holiday home in Spain. The injured party brought an action against the insured (property owner) and Seguros Catalana Occidente (civil liability insurer) for the damages and losses suffered as a result of the fall.
The injured party claimed that the courts of England and Wales have international jurisdiction over Seguros Catalana Occidente by virtue of the special rules on insurance. The claimant argued, in relation to the insured, that a claimant may bring an action against an insurer domiciled abroad under Article 13(3) of that regulation. Her case was that the existence of a ‘dispute’ between the insurer and the insured regarding the validity or effect of the insurance policy is not necessary and that the only requirement under Article 13(3) is that such an action against the insured is provided for by the law governing direct actions against the insurer, in this case Spanish law.
The insured argued that that provision applies only to insurance claims. According to the insured, the injured parties claim was a claim for compensation for consequential loss and damage arising from alleged negligence in the provision of holiday accommodation, rather than an insurance claim and cannot become one merely because it was brought in the same action as the direct action against the insurer.
The answer to this burning question is that Article 13(3) of Regulation No 1215/2012 must be interpreted as meaning that, in the event of a direct action brought by the injured person against an insurer in accordance with Article 13(2), the court of the Member State in which that person is domiciled cannot also assume jurisdiction, on the basis of Article 13(3), to rule on a claim for compensation brought at the same time by that person against the policyholder or the insured who is domiciled in another Member State and who has not been challenged by the insurer. Thus in Tattersall, the CJEU has come to the opposite conclusion to the Court of Appeal in Keefe.
As part of its reasoning, the CJEU cited the reasons for the special rules on insurance, as per Recital 18, is to correct an imbalance between the parties, on the basis that an insurance company is a stronger party. Whereas both the injured claimant and insured are characterised as weaker parties and so the justification for allowing a claimant to sue that defendant in the claimant’s Member State of domicile does not arise.
This may have been the last reference to the CJEU from the court of England and Wales. Alas it’s time to watch that mammoth of a tide disappear into the distance and say hasta luego to both the ‘Keefe question’ and the CJEU.