Lartigue Enterprises Ltd v Three Lions Underwriting Ltd and Others

JurisdictionIreland
JudgeMiss Justice Laffoy
Judgment Date23 February 2012
Neutral Citation[2012] IEHC 119
CourtHigh Court
Date23 February 2012

[2012] IEHC 119

THE HIGH COURT

[No. 4351P/2011]
Lartigue Enterprises Ltd v Three Lions Underwriting Ltd & Ors

BETWEEN

LARTIGUE ENTERPRISES LIMITED
PLAINTIFF

AND

THREE LIONS UNDERWRITING LIMITED, GRAVITY UNDERWRITING LIMITED AND GREAT LAKES REINSURANCE (U.K.) PLC
DEFENDANTS

EEC REG 44/2001 ART 5(1)

EEC REG 44/2001 ART 9(1)(B)

IRISH LIFE ASSURANCE CO LTD v DUBLIN LAND SECURITIES LTD 1989 IR 253

EEC REG 44/2001 ART 9(1)

EEC REG 44/2001 ART 23

O'CONNOR & DAN O'CONNOR JOINERY LTD v MASTERWOOD (UK) LTD & ORS UNREP SUPREME 1.7.2009 2009/44/11073 2009 IESC 49

LEO LABORATORIES LTD v CROMPTON BV (ORSE WITCO BV) 2005 2 IR 225 2005/36/7495 2005 IESC 31

CONTINENTAL BANK NA v AEAKOS COMPANIA NAVIERA SA & ORS 1994 1 WLR 588 1994 2 AER 540

TAVERNS T/A DURTY NELLYS v GILL T/A UNIVERSAL BUSINESS SYSTEMS 2000 1 IR 286

RYANAIR LTD v BRAVOFLY & TRAVELFUSION LTD UNREP CLARKE 29.1.2009 2009/50/12462 2009 IEHC 41

COLZANI v RUWA POLSTEREIMASCHINEN GMBH 1976 ECR 1831 1977 1 CMLR 345

EEC REG 44/2001 ART 27

LINGHAM v HEALTH SERVICE EXECUTIVE (HSE) 2006 17 ELR 137 2005/36/7565 2005 IESC 89

CONFLICT OF LAWS

Jurisdiction

Insurance claim - Exclusive jurisdiction - Applicable jurisdiction - Mandatory injunction - Whether consensus on application of exclusive jurisdiction - Whether claim under Irish or English law - Whether jurisdiction clause formed part of contract - Whether unfairness to plaintiff by enforcing jurisdiction provisions - Whether strong case which likely to succeed - Estasi Salotti v R.Ü.W.A. (Case C-24/76 [1976] ECR 1831followed; Irish Life Assurance Co Ltd v Dublin Land Securities Ltd [1989] IR 253; Dan O'Connor v Masterwood (UK) Ltd [2009] IESC 49, (Unrep, SC, 1/7/2009); Leo Laboratories Ltd v Crompton BV [2005] IESC 31, [2005] 2 IR 225; Estasi Salotti v R.Ü.W.A. (Case C-24/76 [1976] ECR 1831; Continental Bank v Aeokos SA [1994] 2 WLR 588; Clare Taverns v Gill [2000] 1 IR 286; Ryanair Ltd v Bravofly and Travelfusion Ltd [2009] IEHC 41, (Unrep, Clarke J, 29/1/2009) and Maha Lingham v HSE [2005] 17 ELR 137 considered - Council Regulation (EC) No 44/2001, arts 5(1), 9(1)(b), 23 and 27 - Applications dismissed (2011/4351P - Laffoy J - 23/2/2012) [2012] IEHC 119

Lartigue Enterprises Ltd v Three Lions Underwriting Ltd

Facts The plaintiff had issue proceedings in order to secure payment on foot of a policy of insurance in relation to a hotel on the basis that it was a valid policy on a ‘full perils basis’. The defendants were companies that were registered and domiciled in the United Kingdom. A limited appearance had been entered on behalf of the defendants for the purposes of disputing the jurisdiction of the proceedings. The plaintiff also sought an interlocutory relief directing the defendants to furnish the plaintiff with all of the documentation relevant to the policy of insurance including the alleged policy itself. On behalf of the defendants it was contended that the courts should decline jurisdiction to hear the proceedings on the basis the English courts should have jurisdiction of the dispute. The defendants also contended that the policy was only provided on the basis of limited cover. The issue was complicated by the fact that there were a number of parties involved in the procuring of the policy. It was the defendants” case that the alleged losses sustained by the plaintiff were not covered by the policy. Attention was drawn to the case of Ryanair Ltd v Bravofly and Travelfusion Ltd [2009] IEHC 41 and also a judgment of the ECJ, Estasis Soletti.

Held by Laffoy J in making the following order: The court was not satisfied that the defendants had discharged the onus of demonstrating clearly and precisely that there was a consensus between the parties, that exclusive jurisdiction would be conferred on the English courts. There was a complete conflict between the parties as to what had been agreed. Contemporaneous documentation, which might have been expected to assist in resolving the conflict, merely compounded it. The defendants” application that the Irish courts should decline jurisdiction to hear the proceedings would be refused. There was a fundamental dispute between the parties as to the extent of the cover which had been provided. In this regard the court could not order that a policy for full perils cover should be issued to the plaintiff. The form of policy could only be determined as part of the proceedings themselves and injunctive relief could not be utilised to provide a shortcut to the resolution of the issues.

1

Judgment of Miss Justice Laffoy delivered on 23rd day of February, 2012.

1. The applications in the context of the procedural background
2

2 1.1 These proceedings were initiated by a plenary summons which issued on 16 th May, 2011. In it the plaintiff claimed various reliefs, declaratory and injunctive, designed to secure payment on foot of a policy of insurance in relation to a hotel known as The Golf Hotel, Ballybunion, County Kerry (the Hotel) on the basis that it was a valid policy on a "full perils basis". The defendants are companies registered and domiciled in the United Kingdom. In the plenary summons, the plaintiff invoked the Court's jurisdiction under Council Regulation (EC) No. 44/2001 of 22 nd December, 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Brussels Regulation), in particular the provisions of Article 5(1) and 9(1)(b) thereof.

3

3 1.2 On 2 nd June, 2011 a limited appearance was entered on behalf of the defendants "for the purposes of disputing the jurisdiction of the Proceedings only".

4

4 1.3 Of the two applications to which this judgment relates, the first in time was the plaintiff's application for interlocutory injunctions and declaratory relief. It was acknowledged by counsel for the plaintiff that so much of the application as related to declaratory relief could not be pursued on an interlocutory basis. The only relief pursued by the plaintiff was for an order directing the defendants to furnish the plaintiff with all of the documentation relevant to the policy of insurance in respect of the Hotel, including, but not limited to, the policy itself. While the proceedings, as initiated, were drafted on the assumption that, in addition to entering into a contract for a policy of building insurance in relation to the Hotel, the plaintiff had also contracted for public liability insurance cover from the defendants, it became clear that that was not the case. Therefore, the plaintiff's proceedings relate only to the building insurance.

5

5 1.4 The second application is the defendants' application for an order that the Court should decline jurisdiction to hear and determine the proceedings, in circumstances where the agreement between the plaintiff and the defendants made provision for the mandatory jurisdiction of the English courts, and for an order staying the proceedings pending the determination of the issues by the English courts in accordance with that mandatory jurisdiction provision.

2. The relevant facts
6

2 2.1 In setting out the relevant facts, the primary focus will be on the facts relevant to the second application, which logically must be addressed first.

7

3 2.2 In broad terms, the plaintiff's case is that from late September 2010 for a period of one year the Hotel building was insured with the defendants and that the insurance cover was on a "full perils basis". On 26 th December, 2010 the Hotel was damaged by water from a burst pipe, which the plaintiff contends was caused by the extremely cold spell of lengthy duration throughout the country at that time. When the plaintiff made a claim to the defendants on foot of the policy, the position of the defendants was that the cover was only on a limited or FLEA (that is to say, fire, lightening, explosion and aircraft) cover basis. While the extent of the cover provided by the policy was the core issue between the parties from the outset, as the matter has evolved, the defendants have advanced a range of answers or defences to the plaintiff's claim.

8

4 2.3 The facts are complicated by reason of the number of parties involved in the procuring, and the creation of, the insurance cover. The plaintiff, which is an Irish registered company, carrying on the hotel business in the Hotel in Ballybunion retained a local insurance broker, Insight Insurance Brokers Limited (Insight), which carries on business in Cork, to obtain the necessary insurance cover on its behalf. Insight, in turn, engaged with CityNet Insurance Brokers Limited (CityNet), a placing broker carrying on business in London, to obtain the appropriate cover. CityNet, in turn, dealt with the second defendant (Gravity), which was the underwriter of the policy and which dealt with CityNet for and on behalf of the insurer, the third defendant (Great Lakes).

9

5 2.4 It is not disputed by the defendants that a policy of insurance came into being. In his first affidavit, which was sworn by him on 10 th June, 2011, Alan Thorne, the managing director of Gravity, averred that the policy at issue was effected from 28 th September, 2010, but he also averred that the cover which the defendants agreed to implement was limited to FLEA cover. From the averments contained in that affidavit and in subsequent affidavits sworn by Mr. Thorne and the documents exhibited by him, and from the averments contained and the documents exhibited in the affidavit sworn on behalf of the plaintiff by Michael Carr, a director of the plaintiff, the sequence of events in chronological order and each side's position as to what was agreed is as follows:

10

(a) In early September 2010, Insight furnished a Submission/Application for cover to CityNet, which submitted it to Gravity. Gravity furnished a quotation to CityNet, apparently, on 17 th...

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