In a judgment handed down on Friday 10 June 2022, the Court of Appeal has upheld the Commercial Court decision maintaining the anti-suit injunctions granted to various insurers in two connected actions. The judgment of Lord Justice Males provides guidance on construing potentially conflicting jurisdiction clauses within an insurance tower.
Background
Underlying proceedings were issued in June 2017 in Alberta, Canada against the Second Defendant in the actions, in relation to a failure of a pipeline in 2015, with damages sought amounting to Can$450m. In February 2021, the Second Defendant commenced proceedings in Alberta against the various insurers, seeking, among other things, confirmation of defence cover.
This led to without notice anti-suit injunctions being sought by the Claimant insurers in the Commercial Court in August 2021. In September 2021, Mr Justice Jacobs maintained the injunctions, holding that the policies did provide for English exclusive jurisdiction. On appeal, the question again before the Court of Appeal was whether the policies (a Global Umbrella policy issued by Chubb Europe and various excess liability insurances) provided for the exclusive jurisdiction of the English Court.
Insurance Provision
The insurance tower included a primary liability Global Commercial General Liability policy, together with an excess programme including, in sequence, the Global Umbrella policy and three further excess policies. No appeal was made in relation to the decision on the second excess liability policy where there was no exclusive jurisdiction clause.
Each of the relevant policies was in the form of the Market Reform Contract, the standard form of agreement used in the London Market. The structure of all the policies was similar. All policies included a Primary Policy Jurisdiction Clause (PPJC) in the Risk Details setting out the parties’ choice of law and jurisdiction. This clause provided for disputes to be subject to “the same law and the same jurisdiction as the primary policy”, although the primary policy itself did not contain any choice of law or jurisdiction clause.
In addition all policies included standard terms and conditions. The Global Umbrella policy included clause 11 which provided for English law and jurisdiction as follows:
“This Policy of insurance shall be governed by and construed in accordance with the laws of England and Wales, or Scotland (in respect of any policies issued in Scotland), and except in the case of Scottish policies the Commercial Court of the Queen’s Bench Division High Court of Justice Strand London WC2A 2LL shall have jurisdiction in respect of any dispute under this Policy.”
The two remaining excess policies included clause 12 as follows:
“The proper law of the Policy shall be English law and the Courts of England shall have exclusive jurisdiction in all disputes connected with this Policy.”
Issues
At both first instance and on appeal, three issues were raised:
1. The potential conflict between the PPJC and clauses 11 and 12.
As the primary layer policy referred to in the PPJC did not contain any jurisdiction clause, was it open to the parties to sue in any court of competent jurisdiction?
2. Non exclusive jurisdiction.
In relation to the Global Umbrella policy, should clause 11 be construed as providing for the non-exclusive jurisdiction of the Commercial Court, so that the parties were free to sue in any court of competent jurisdiction?
3. Scottish jurisdiction.
Was the Global Umbrella policy issued in Scotland so that the provision in clause 11 for the Commercial Court in London to have jurisdiction did not apply?
Court of Appeal Decision
In relation to the PPJC, it was held not to take precedence as there was “nothing for it to bite on”. If there had been a true conflict between the PPJC as set out in the Risk Details and the later standard clauses, there would be force in an argument that the PPJC should prevail.
However, the PPJC only applied when the primary policy contained a clause dealing with law and jurisdiction. Without such a clause in the primary policy, there is no conflict and the later standard term clauses should be given effect. To construe the PPJC as applying where there is no express choice of law and jurisdiction in the primary policy would make its application hopelessly uncertain.
Secondly, on its true construction, clause 11 was intended to provide (except in the case of Scottish policies) for the exclusive jurisdiction of the Commercial Court in London. There was no need to use the word “exclusive”; the mandatory language (“shall have jurisdiction”) was clear; such an approach made commercial sense; and there was nothing in the PPJC to call this into question.
Finally, the fact that the First Defendant was a company registered in Scotland with a principal address in Aberdeen was irrelevant. The policy was issued when the contract was scratched, in London.
As a result, the appeal was dismissed and the pursuit of proceedings in Canada held to be in breach of contract by the Defendants. The decision serves as an important reminder to seek to ensure that in tower scenarios dispute resolution provisions are clearly and consistently drafted in order to avoid any further litigation.
Chris Wilkes and Angel Lu successfully represented Chubb European Group SE.
