Strand, London, WC2A 2LL
B e f o r e :
PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE MAY
LORD JUSTICE TUCKEY
DORNOCH LTD. & ORS
|- and -
|THE MAURITIUS UNION ASSURANCE COMPANY LTD.
THE MAURITIUS COMMERCIAL BANK LTD.
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ali MALEK Q.C. and Mr Mark HUMPHRIES, Solicitor Advocate (instructed by Linklaters,) for the Mauritius Union Assurance Co. Ltd.
Mr Gavin KEALEY Q.C. and Mr David BAILEY (instructed by Clifford Chance) for The Mauritius Commercial Bank Ltd.
Crown Copyright ©
Lord Justice Tuckey:
Conditions: To follow all terms and conditions of the primary policy together with riders and amendments applicable thereto covering the identical subject matter and risk …
Coverage extended to include infidelity – 72 hour discovery period.
Terrorism Exclusion NMA 2921.
LSW 3000 – 90 days
The primary policy referred to is the primary reinsurance. The evidence before the judge was that the extension to the infidelity cover was a London market wording designed to provide cover if for example an employee facilitated entry by thieves to secure premises over a weekend. The 72 hour limit was to exclude cover in respect of systemic infidelity going back over a long period. A similar clause was added to the underlying premises and transit excess insurance but not to the primary insurance or Reinsurance. I shall explain how the words Jurisdiction Clause came to be included in the slip later.
It seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial court judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of Lord Goff in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere.
This court should, and I will, follow this advice also.
The Central Issue
Was there a Mauritius jurisdiction clause in the Reinsurance?
The question is whether the plaintiffs have a good arguable case that English law is the proper law. If they have, then there is jurisdiction to give leave. It may well be that there is also a good arguable case for some other law being the proper law and, if the action goes forward that case will prevail at the trial. That is not the point, at all events unless it is clear that the question of proper law cannot be further illuminated at the trial.
I told her that there was a local jurisdiction clause in the primary and she noted jurisdiction clause. I recall specifically explaining to her that these conditions would be included in the excess layer as the terms and conditions followed those of the primary policy
My reference to jurisdiction clause [on] the quotation sheet was, I am confident, the result of my raising this important issue with [the broker]. Unlike the other two notes I made it is obviously incomplete. It has a colon after it. I simply do not accept what [the broker] says... it is obviously the case that the question of jurisdiction was not resolved. I am sure, having now seen the quotation sheet, that my note, with the colon, reflects the fact that I must have asked [the broker] what jurisdiction applied and he did not know and had to go back … for instructions.
On the slip that he brought back to me, the colon had been removed and it simply read "jurisdiction clause". It seems to me now that I must have missed this.
She refers to her underwriting notes which contain no reference to a jurisdiction clause although they do refer to the terrorism exclusion and premium warranty clauses.
Article 3 (1)
A contract shall be governed by the law chosen by the parties. The choice must be express or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case.
Article 4 (1)
To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected.
Article 4 (2)
… it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of the conclusion of the contract, … in the case of a body corporate or unincorporate, its central administration. …
11 (1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.
11 (2) Where elements of those events occur in different countries the applicable law under the general rule is to be taken as being … (c)… the law of the country in which the most significant elements of those events occurred.
12 (1) If it appears, in all the circumstances, from a comparison of
(a) the significance of the factors which connect a tort or delict with a country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or any of the circumstances or consequences of those events.
Consequences of the Judge's conclusions on proper law.
The Judge's overall conclusion
My overall conclusion
Lord Justice May: I agree
The President of the Family Division: I also agree