Holiday accident claims - Broad scope for civil claims against insurers in home courts confirmed

In Lackey –v- Mallorca Mega Resorts SL (1) Generali Espana De Seguros Y Reasecuros SA (2) the Claimant was a 41 year old female residing in England. She was a guest at the First Defendant’s Spanish Resort as part of a large group booking for 22 persons. The Claimant suffered an accident in the First Defendant’s wave pool sustaining a dislocation to her cervical spine resulting in tetraplegea. The Second Defendant was a public liability insurer for the hotel group. The Claimant brought a £9 million damages claim and issued court proceedings in the England.

Under Spanish Law the Claimant was able to pursue a right of action against the Second Defendant insurer, but a claim was issued in the English courts and that jurisdiction was accepted by both Defendants, but later challenged by the First Defendant when they obtained separate legal representation.

The First Defendant’s application to contest jurisdiction was on the basis of the EU Recast Brussels Regulations [1215/2015] with particular reference to Section 3 (11) (13) (17) and (18). Section 3 of the Regulations dealt with “Jurisdiction in matters relating to insurance”. Regulation 11 allows a claim to be issued in the country the Claimant lived in as a beneficiary of the Insurance policy. Regulation 13 allows the Insurer to be added to the English claim as Spanish law allowed a direct claim against the Insurer if a claim is brought against the Insured. Regulation 17 and 18 permit the Claimant to pursue the claim in her capacity of a deemed “consumer”.

The First Defendant argued that the claim against hotel company itself could not be argued as a “matter relating to insurance” as there was no policy dispute between insurer and insured so a claim could not be brought in the Claimant’s home jurisdiction. Furthermore, the First Defendant argued that the Claimant herself was not deemed a “consumer” as defined in Regulation 18 to be able to bring a claim in her home court as she was not the actual purchaser of the booking as this was in fact done by another person in the group. >

Decision

In determining the jurisdiction application Master Davison noted practically identical circumstances to the 2015 Court of Appeal Case Hotels Pinero Canarias SL –v- Keefe. It was decided in Keefe that there was a clear common ground between the insurer and insured in relation to the claim and there was no requirement for there to be a specific policy dispute for a case to be deemed “a matter relating to insurance” and for Regulation 13 to be applicable. Master Davison concluded that he was bound to the terms of this previous decision and refused the First Defendant’s permission to contest jurisdiction on the grounds there was no dispute over the insurance policy itself.

Furthermore, the Judge did not accept the First Defendant’s reasoning challenging whether the Claimant was a “consumer” and noted that although there was no direct contractual arrangement, it would be deemed too restrictive an interpretation. The Judge applied Keefe finding that a consumer booking through an agent rather than directly would still be deemed bound within the terms of Article and 17 and 18 of the Regulation. The court held that the fact of different party member of a group booking was the arranger would not bar another member of the party group from being deemed a “consumer” and thus pursuing the claim.

The Court ordered that English jurisdiction remain over the claim in line with the Recast Regulations.

Comment

This decision clarifies the scope of Section 3 of the Recast Regulations. There is no need for a dispute on insurance cover for the Insurer to be joined to a claim in a foreign jurisdiction, the existence of an insurance policy creating common ground was sufficient for there to be a matter relating to insurance. The decision also confirms that to qualify as a consumer under the Regulations an individual does not have to have a direct contractual link to an Insurer to be able to bring a claim against them in the individuals home jurisdiction.