Jurisdiction: High Court provides guidance on the application of Recast Brussels I Regulation in relation to personal injury claims

The High Court recently considered the jurisdictional challenges brought by Defendants to a personal injuries claim on whether a Claimant could bring a claim in his own domicile rather than in the country where the injury was sustained. Mrs Justice Andrews held that the English Court had jurisdiction in respect of the contractual claim made by the Claimant and dismissed the Defendants’ jurisdictional challenges.

Background

The Claimant attended the Ocean Beach Club in Ibiza (the Club), owned by Ice Mountain (the Second Defendant) and was found floating in the Club’s swimming pool on 3 June 2016. The Claimant suffered life-changing injuries and issued a claim in England in contract, tort and for breach of statutory duty, claiming damages in excess of EUR 10 million against the Second Defendant and their Spanish liability insurers, Mapfre (the First Defendant).

It was agreed that the Claimant was a “consumer” within the meaning of Articles 17 and 18 of the recast Brussels Regulation 1215/2012 (Brussels I Recast). Article 76 of the Spanish Insurance Contracts Act 50/1980 permits an injured party to bring a claim governed by Spanish law against the liability insurer of the party who is primarily liable (as well as the liable party if necessary). Article 13(2) of Brussels I Recast provides that the right of an insured to pursue an insurer in the Member State of his own domicile is extended to cover a direct claim that the injured party has against the insurer, if that direct claim is allowed under the national law applying to the insurance contract.

Issues considered by Court

Claim against the Second Defendant

In relation to the contractual claim, the Second Defendant argued that as the Claimant had purchased his entry ticket to the Club as a result of the Club’s promotional activities in Ibiza, Article 17(1) of Brussels I Recast should not be interpreted to apply to a consumer contract that was entered into by the consumer in a Member State which was not his domicile. The Second Defendant further argued that the Claimant had not been using the facilities he was contractually entitled to use at the time of the accident as he had entered the pool area from the VIP area (his tickets did not allow access to the VIP area). Lastly it was argued that the Court of Ibiza had already seized any civil claims arising out of the accident and therefore the claim before the English court would have to be stayed (Article 29 of Brussels I Recast) until the Spanish Court had determined jurisdiction.

Andrews J dismissed these arguments on the basis that:

1. There was no requirement for there to be a causal link between the direction of a defendant’s commercial activities to the Member State of the claimant’s domicile and the contract that was subsequently concluded and thus it was irrelevant where the contract was concluded.

1. It was irrelevant that the Claimant was in the VIP area before his accident – using the pool was an activity which fell within his contractual rights.

1. There was no risk of inconsistent judgment, as there was no risk of any judgment on the merits of a claim for damages for personal injuries in Spain, based on the evidence.

The High Court decided that it would stay the non-contractual claims against the Second Defendant until the CJEU has answered the questions referred to it in Cole v IVI Madrid SL (Claim no E90BM227).

Claim against the First Defendant

It was the First Defendant’s case that the insurance policy would not cover the Second Defendant’s liability under a judgment given by an English Court, only a Spanish Court, meaning that a defendant would be uninsured in respect of any claims which an English consumer might bring in the court of their own domicile pursuant to Articles 17 and 18 of Brussels I Recast. The insurance policy included a provision which confirmed that it would only cover claims submitted within Spanish jurisdiction.

The High Court dismissed this argument on the basis that a victim with a direct right of action against the insurer was not bound by an agreement on jurisdiction made between the insurer and the party that caused the harm due to the fact that the Second Defendant could not rely on the jurisdictional clause against the Claimant and nor could the Claimant enforce the clause.

Comment

Consumers will welcome this decision as it demonstrates that the English Courts will interpret Brussels I Recast in a manner that aims to protect the weaker party by preventing a term in an insurance policy from undermining the special protective provision in Brussels I Recast. Further there appears to be no need to show a causal link between a company’s promotional activities and a consumer contract in order to enable the consumer to establish jurisdiction in their own domicile. Insurers may wish to consider this narrowed position before incurring considerable costs in challenging jurisdiction.

Further Reading: Hutchinson v Mapfre Espana Compania De Seguros Y Reaseguaros SA. & Anor [2020] EWHC 178 (QB).