England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/08/2005

Mr Justice Aikens :

I Synopsis

1. The Mauritius Commercial Bank Limited, the second defendant in these Proceedings ("MCB"), is a bank incorporated in Mauritius. For many years it has carried on business in Mauritius as a leading commercial bank. The Mauritius Union Assurance Company Limited, the first defendant in these proceedings ("MUA"), is an insurance company domiciled in Mauritius. From June 1999, MUA underwrote Bankers' Blanket insurance for MCB and it did so for the period from 30th June 2002 to 30^th June 2003. The insurance covered losses sustained during the period of the insurance or discovered during that period. In fact, MUA issued three policies to MCB, each of which was based upon a standard Bankers' Blanket insurance policy form known as "BRS 98". The primary policy covered a number of risks including infidelity; premises; and transit. There were then two excess policies. The first covered various risks including infidelity; but that policy excluded cover for premises and transit. The second excess policy covered "All Risks of Physical Loss or Damage", although in fact it covered only losses relating to premises and transit. This policy contained a "Condition" which extended coverage "to include Infidelity – 72 hour discovery period". It is agreed that each of those insurance policies is governed by the law of Mauritius and each contains a clause giving the Courts of Mauritius jurisdiction over any disputes arising under the policy concerned.
2. Each of these direct insurance policies was reinsured for 100% in the London market.^[1] There were three Reinsurance policies, which matched the cover provided by the direct insurance. The primary Reinsurance covered a range of risks including employee infidelity, premises and transit. That was placed in the Bankers' Blanket Bond market. This policy was led by Munich Re. The policy is on Form J(a), which is a London market form, but the policy incorporates a standard BRS 98 wording. Under the heading "Conditions", which are applicable to all sections of this reinsurance, it states "Wording as per BRS 98". Under that heading it states also "Mauritius Jurisdiction Clause". Within the BRS 98 wording is a further heading "Conditions". Under that heading, Clause 8 is titled "Jurisdiction". It provides:

"This insurance shall be governed by the Common Law or Statutes of the Country stated in Item 9 of the Schedule whose Courts shall have jurisdiction in any dispute arising hereunder, and any summons, notice of process to be served on the Insurers for the purpose of instituting legal proceedings against them in connection with this Insurance may be served upon the Person(s) named in Item 10 of the Schedule who have authority to accept service on their behalf".

Item 9 of the "Wording Schedule" of BRS 98 states: "Country of Jurisdiction: Mauritius".

3. There was one Excess Reinsurance policy which covered various risks including employee infidelity, but excluding premises and transit. That was also placed in the Bankers' Blanket Bond market and led by Munich Re. This case is not concerned directly with either of these two reinsurance policies.
4. It is concerned with the third Reinsurance policy, which is an "Excess All Risks of Physical Loss or Damage Reinsurance", hereafter "the Excess Reinsurance"^[2]. This policy principally covered physical losses relating to premises or other insured property and physical losses in transit. But it had an extension to include infidelity, with the somewhat cryptic qualification "72 Hour Discovery Period". That policy was placed in the Specie market in London and was led by the first claimants in these proceedings, who are managed by XL Insurance.
5. On 14^th February 2003, MCB announced that it had discovered a large-scale fraud which had resulted in the misappropriation of Mauritian Rupees ("MuRs") 632,613,615. This misappropriation had taken place over a period of some ll years between 1991 and 2002. MCB (through its local insurance broker) notified MUA of this fraud on 17^th February 2003. On 9^th May 2003 MCB issued proceedings in the Supreme Court of Mauritius against 38 defendants claiming a total of MuRs 1,381,557,257, which MCB said represented the "totality of the loss and prejudice" that it had suffered as a result of the fraud: ("the Fraud Action"). On 30^th June 2003, MCB made a claim on MUA under the direct insurance policies for an indemnity of MuRs 737Million. On 30^th September 2004, MCB began proceedings in the Supreme Court of Mauritius against MUA, making a claim on the direct insurance ("the Mauritius Insurance Action").
6. On 19^th January 2005, the claimants in the present proceedings notified MUA that the Reinsurance policies were avoided for misrepresentation and non-disclosure. On the same day the claimants applied for permission to serve the present proceedings ("the English Reinsurance Action") out of the jurisdiction on MUA and MCB in Mauritius. The Brief Details of Claim sought: (i) a declaration that the Excess Reinsurance had been validly avoided on account of non-disclosure or material misrepresentation by MUA; (ii) a declaration that the claimants ("the Reinsurers") were not liable to MUA because the claims, even if proved, fell outside the scope of the Excess Reinsurance; (iii) damages for misrepresentation pursuant to the Misrepresentation Act 1967, as against MUA; (iv) damages for deceit, alternatively damages for negligent misstatement, as against MCB.
7. On 1^st February 2005, I made an Order granting permission to serve the proceedings on MUA and MCB out of the jurisdiction in Mauritius. On 21^st February 2005 the Supreme Court of Mauritius gave permission to MUA to join the Reinsurers to the Mauritius Insurance proceedings, as "Defendants –in– Guarantee". On 22^nd February 2005 Linklaters (Solicitors for MUA) sent to Clyde & Co (Solicitors for the Reinsurers) a copy of the Plaint joining the Reinsurers as Defendants –in- Guarantee in the Mauritius Insurance proceedings. On the same day the Reinsurers applied in the existing English proceedings for an anti-suit injunction and an anti-anti-suit injunction against MUA. I granted those injunctions ex parte on the following day. On 6^th April 2005 that injunction was replaced, by consent, with undertakings given by MUA.
8. On 29^th April 2005 MUA applied for a stay of the English Reinsurance proceedings and for an Order setting aside permission to serve those proceedings out of the jurisdiction. MUA also sought an Order to set aside the anti-suit and anti-anti-suit injunctions. On 9^th May 2005 MCB applied for a stay of the English Reinsurance proceedings as against them and for an Order to set aside the permission to serve those proceedings out of the jurisdiction on MCB in Mauritius.
9. These applications came on for hearing before me on Tuesday 28^th June 2005. I was provided with eight large and one small ring binder file of evidence. I was also supplied with three large ring binder files of authorities. By the end of the hearing there were some 90 authorities in five bundles. The so-called "Skeleton Arguments" ran, in total, to 106 pages. More written submission were provided during the course of the hearing. The hearing itself had been estimated at 2 days. In fact, by the end of the third day, the submissions on behalf of the Reinsurers, in response to those of MUA and MCB, were not complete. Because of the Court's and Counsels' commitment the case had to be adjourned for over a week. Submissions were completed on Monday, 11^th July 2005. I reserved judgment.
10. The question at issue in relation to both claims by the Reinsurers is whether England is clearly the appropriate forum for the just resolution of these disputes. The general legal principles are well settled. It is also established that on applications of this kind, the Judge must not make final conclusions on issue of fact. This is clearly not one of those cases, referred to by Lord Templeman in Spiliada Maritime v Cansulex Ltd,^[3] where I could have made the decision after submissions lasting hours rather than days, having studied the documents in the quiet of my room. But I do question whether it was necessary or wise to immerse the Court in as much detail on the underlying facts as the parties did.

II The Insurance and Reinsurance Contracts

11. The Insurance Contracts

As I have already noted, the Bankers' Blanket Insurance of MCB by MUA was originally written in 1999. However no party placed importance on the insurance position prior to 2002. For 2002/3 the Reinsurance cover was actually put in place before the direct insurance. This fact is relied on by Mr Swainston QC for the Reinsurers. The Bankers' Blanket Insurance of MCB ran for twelve months as from 30^th June 2002. The three direct policies were all written on the terms and conditions with a standard form of wording called "BRS 98".

12. It is not in dispute that the direct policies have the following features:

(1) The primary policy covers three risks in particular, which are: (a) Infidelity (Insuring Clause 1); (b) Premises of MCB (Insuring Clause 2); (c) Loss in Transit; (Insuring Clause 3);

(2) The first Excess Policy covered various risks including infidelity, but excluding premises and transit.

(3) There is a second Excess All Risks of Physical Loss or Damage Policy covering only losses relating to premises and transit.

(4) In each of these three primary policies, condition 8 of the wording in Form BRS 98 provides as I have set out in paragraph 2 above. Also, in each case in relation to the direct policies, Item 9 of the Wording Schedule to BRS 98 provided: "Country of Jurisdiction: Mauritius".

13. When the direct insurance had been arranged in 1999, MUA had agreed an extension to the Excess All Risks of Physical Loss or Damage cover. The extension was granted by an endorsement in 1999 which provided:

"It is hereby understood and agreed that the cover afforded by this policy is extended to include loss of property through the infidelity of employees of the Insured with a Discovery Period of 72 hours".

This endorsement was carried through into the direct Excess All Risks of Physical Loss or Damage Policy running from June 2002, although the endorsement for this extension is dated 5^th August 2003.^[4]

14. The Reinsurance Contracts: The Primary Policy

The primary reinsurance policy is stated to be on "Form: J(a) Form plus Wordings as agreed Original Wording Based on…" then the forms BRS 98 and NMA 2273 are referred to for various sections of this reinsurance. Under the heading "Conditions", it states several clauses are applicable to all sections, including "Wording as per BRS 98". Underneath the same heading of "Conditions", but further down the list are the statements: "Mauritius Jurisdiction Clause"; "Terrorism Exclusion Clause" and "90 Day Premium Payment Warranty".

15. The Form BRS 98 is also attached to this slip policy. In the bottom left hand side of each page of this form are the words: "Form BRS 98 Mauritius". Clause 8 of the "Conditions" of the form BRS 98 is the Jurisdiction clause which I have already set out above. A "Wording Schedule" is also attached to this policy. Item 9 states: "Country of Jurisdiction: Mauritius".
16. The Excess All Risks of Physical Loss or Damage Reinsurance

The Proposal Form for the Reinsurance of MUA in relation to the Excess All Risks of Physical Loss or Damage Reinsurance was, in fact, completed by MCB. It is on a standard Lloyd's Bankers Policy Proposal Form. The first page has the following notice on it:

"Lloyd's Bankers Policy Proposal Form

………….

Please note:

Every Proposer or Assured, when seeking a quotation, taking out or renewing an Insurance Policy, has a legal obligation to reveal to the prospective Insurers any material fact or information which might affect the judgment of the Insurer in deciding whether to accept the insurance or assessing the conditions of that insurance. Failure to observe this obligation could avoid any contract entered into at inception."

Section E of the Proposal Form states:

"Please give in the space provided below, brief details, of any loss or losses you have sustained (whether insured or uninsured, BEFORE the application of any deductible, which was sustained during the past FIVE years

………………

unless the information has already been provided, please attach full details of the circumstances surrounding any SUBSTANTIAL loss and the CORRECTIVE measures taken to avoid recurrence".

MCB 's answer to this question was:

"Refer to Annex D ...LOSSES sustained during the past five years 1997 – 2001)".

The Proposal Form also contained a declaration which states:

"We declare that the statements and particulars in this Proposal are true and that we have not misstated or suppressed any material facts ".

17. Annex E, as completed, did not contain details of any of the losses now claimed. Nor did it refer to any of the payments from MCB accounts which have become the subject of the Fraud Action in Mauritius. There were other questions and answers to which I will refer below. The Proposal Form was signed by Pierre Guy Noel, the General Manager of MCB, the Chief Accountant of MCB and also the Chief Internal Auditor. The form, which was signed in May 2002, was used by BRS to broke the "Excess Reinsurance" in June 2002.
18. The broking of the Excess All Risks of Physical Loss or Damage Reinsurance.

In June 2002 Ms Anne – Louise Seago was the Specie market underwriter for XL Insurance. In previous years the underwriting of the excess All Risks of Physical Loss or Damage Reinsurance for MUA had been dealt with principally by Mr David Edward of XL, although Ms Seago had been involved in the renewal in 2001. Mr Edward had left XL in October 2001, so that when the risk came up for renewal in 2002, Ms Seago renewed it "on an open market basis with Syndicate 1209 taking only a 35% line".^[5] A junior broker at BRS, Mr Michael Gooding, presented the matter to Ms Seago at the Underwriters' box on 29^th May 2002. There is a dispute of what precisely happened on that presentation. But there is no doubt that Ms Seago raised three issues: the question of a terrorism exclusion clause, a premium warranty clause and the issue of a jurisdiction clause. These matters were noted on a quotation sheet produced by Mr Gooding.^[6] Mr Gooding says that when Ms Seago raised the question of a jurisdiction clause, he referred to the quotation sheet in respect of the "primary layer" of the Reinsurance and he told Ms Seago that jurisdiction was "local Mauritian jurisdiction". Mr Gooding says that Ms Seago then wrote on the quotation sheet "jurisdiction clause".^[7] In fact, as is clear from the document, she wrote down "jurisdiction clause" with a colon after it. Although Ms Seago said in her first witness statement that she did not recall this incident, in her second statement which she made having seen the Quotation Sheet and her annotation, she says that she raised the question of jurisdiction but did not get an answer and the matter was left undecided.^[8] The Reinsurers' Solicitors have asked for the quotation sheet for the primary reinsurance and, indeed, the Brokers' placing file. The latter was produced but there is no quotation sheet for the primary reinsurance in it. Subsequently a copy of the primary reinsurance Quotation Sheet was obtained from the leading underwriter on that policy, Munich Re. That refers (in relation to that policy) to "Mauritius Jurisdiction Clause". It also has, in the handwriting of Mr Stewart Brown, (the chairman and senior placing broker of BRS), the words "Terrorism Exclusion Clause; 90 Days PPC".^[9] However, in the BRS Placing File there is also a copy of a fax sent by Mr Brown to City Brokers Ltd dated 30 May 2002 which set out "an indication of renewal terms" for their review. For the Excess Reinsurance, under the heading "Conditions", it has four lines which read: "Coverage extended to include fidelity – 72 Hour Discovery Period"; "Terrorism Exclusion NMA 2921"; "LSW 3000 – 90 days"; "Jurisdiction Clause".^[10] There is no elaboration of the last item.

19. The Excess All Risks of Physical Loss or Damage Slip Policy was presented to Ms Seago on 19^th June 2002. She scratched it and dated it.^[11] The Slip Policy is on a standard form and it states, at the top: "Form: Slip Policy NMA 1779/Lirma Pol/CP 2". The Slip Policy has a number of clauses, one of which is headed "Conditions". Under that heading are the words:

"To follow all terms and conditions of the primary policy together with riders and amendments applicable there to covering the identical subject matter and risk including ………"

After that there are a number of references to standard clauses. Amongst these are: "Terrorism Exclusion NMA 2921" and "LSW 3000 – 90 Days". There is also the wording: "Coverage extended to include infidelity – 72 Hour Discovery Period". Then, at the bottom of this clutch of references to clauses, on a separate line, is the wording "Jurisdiction Clause". However, unlike the primary reinsurance slip policy, no further standard wordings are attached to the slip policy. In particular, no BRS 98 form of wording is attached.

20. It is agreed on all sides that the words "the primary policy" in the phrase "to follow all terms and conditions of the primary policy, together with riders and amendments applicable thereto" that is set out in the Slip Policy for the Excess All Risks of Physical Loss or Damage Reinsurance is a reference to the primary Reinsurance Policy. I have already set out the relevant terms of that policy.

III The Factual Background to the claims

21. MCB's Allegations of Fraud

On 9^th May 2003, MCB started the Fraud Action in the Supreme Court of Mauritius. The first defendant in those proceedings is Mr Robert Lesage. Mr Lesage had been on the staff of MCB from 1961 until his retirement on 30^th June 2001. When he retired he was a Chief Manager and was the Zone Manager of the current accounts, savings and fixed deposits departments. He was also the File Manager of fixed deposits accounts of two customers of MCB, the National Savings Fund ("NSF") and the National Pensions Fund ("NPF"). At various times he also acted as manager in charge of the account of the Mauritius Commercial Bank Finance Corporation Limited ("MCBFC") and other clients of the MCB who are also named as defendants in the Fraud Action. In the Fraud Action it is alleged that Mr Lesage engaged in "the siphoning off and fraudulent misappropriation of funds belonging to [MCB]"^[12] over a period of eleven years between 1991 and 2002. It is alleged that he did this by the following means:

(1) From 1993 he made advances to Handsome Investment Limited, Quartet Development Company Limited and Magarian Cie Ltee. He did this without the authorisation or knowledge of either MCB or MCBFC. A total of MuRs 51 million is alleged to have been transferred to those three companies.

(2) Between December 1994 and March 1995, Mr Lesage used the account of one of MCB's clients to make further unauthorised transfers amounting to MuRs 167 million to Magarian, Handsome, Advance Engineering Limited and the National Mutual Fund General Fund and the National Mutual Fund Property Trust.

(3) In July 1996, Mr Lesage used the accounts of other clients of MCB to effect unlawful and unauthorised transfers totalling MuRs 28.5 million. These transfers were to Handsome and Magarian.

(4) Between August 1996 and March 1999, Mr Lesage used the fixed deposits accounts of both NPF and NSF to siphon off and fraudulently misappropriate MCB's funds. In this way he unlawfully transferred a total of MuRs 150,143,874 to the benefit of Handsome, Magarian and other companies.

(5) Between June 1999 and June 2001, Mr Lesage siphoned off and fraudulently misappropriated a total of MuRs 193,861,032 which were paid to the order of Handsome, Magarian, Sea Rock Paradise Limited, Angel Beach Resorts Limited and other companies, including HSBC in Mauritius and the State Bank of Mauritius Limited ("SBM"). It is alleged that some of the funds transferred to HSBC and SBM were paid into the account of Mr Teeren Appasamy, the eighth defendant in those proceedings. Mr Appasamy now lives in the United Kingdom.

(6) By the time of Mr Lesage's retirement on 30^th June 2001 a total of MuRs 548,868,731 had been siphoned off and fraudulently misappropriated.

(7) After Mr Lesage had retired he continued working for MCB "to put in order certain specific credit files". It is alleged that Mr Lesage "overstepped his mandate and continued, without the knowledge of [MCB] to deal with the NPF/NSF fixed deposits".^[13] Between September 2001 and December 2002 Mr Lesage siphoned off and fraudulently misappropriated a total of MuRs 83,744,884. It is alleged that payments were made to Sea Rock Paradise Limited, Angel Beach Resorts Limited, Handsome, HSBC, SBM and Mr Appasamy. It is said that sums paid to HSBC and SBM were subsequently transferred to Mr Appasamy.

22. Paragraph 22 in the Plaint in the Fraud Action sets out "the primary recipients" of the siphoned off and fraudulently misappropriated funds. It is alleged that the recipients were paid by cheques, which are identified in the pleading. Of the many cheques identified, there is only one, which is a payment made to Handsome on 19^th December 1994, that is above MuRs 50 million. The total of that cheque was MuRs 55 million.
23. The Plaint in the Fraud Action alleges (at paragraph 33) that Mr Appasamy was the recipient of some of the siphoned off and fraudulently misappropriated funds. It also alleges that Mr Appasamy, together with Mr Lesage and two other defendants, conspired to defraud of MCB "either individually or through their respective Corporations".
24. The Claim by MCB against MUA in Mauritius

The Plaint in the Mauritius Insurance Action^[14] was issued on 30^th September 2004. The claim is made under all three direct insurance policies. The scheme of the Plaint (and indeed much of the actual wording), follows that of MCB in the Fraud Claim. Thus, in paragraph 18, it is alleged that funds were siphoned off and fraudulently misappropriated "over a span of some 11 years between 1991 and 2002". In paragraph 36 of this Plaint it is alleged that the scheme to siphon off and/or fraudulently misappropriate funds of MCB was effected under the instructions of Mr Lesage. It is asserted that "he either personally signed the relevant transfer instructions and/or personally endorsed cheques and/or gave instructions to subordinate staff to effect such transfers, issue of cheques and/or payments". It is alleged (in paragraph 41) that Mr Lesage concealed these unlawful and illegal transactions from colleagues and superiors. In paragraph 42 of the Plaint it is alleged that the acts of Mr Lesage constitute "the fraudulent abstraction of funds belonging to [MCB] and consequently to larceny at [MCB's premises] and/or "Infidelity"."

25. The total claim made under the three direct policies is for MuRs 737 million. MUA has yet to file a defence to this claim. Mr Roger Montocchio QC, who is the legal adviser to MCB, has stated in a witness statement given in these proceedings that MUA has had ample time to give its defence to the Plaint "and yet has failed so to do".^[15]
26. When Clyde & Co sent their letter of 19^th January 2005 to MUA asserting that the Reinsurance was avoided for misrepresentation and non-disclosure, the Mauritius lawyers of MUA wrote back on 11^th February 2005, giving notice that MUA would apply to join the Reinsurers as "Defendants –in- Guarantee" in the Mauritius Insurance Action. That Application was granted on 21^st February 2005. The "Plaint –in- Guarantee" proceedings are, effectively, third party proceedings. The Plaint document^[16] is short. It refers to the reinsurance policies; the fact that a claim is being made by MCB against MUA under the direct policies; and the Reinsurers' avoidance letter of 19^th January 2005. It alleges that the reinsurances are legally binding and enforceable. Paragraph 8 of the Plaint requests the Mauritius Court to order the Defendants in- Guarantee either to pay directly to MCB or to indemnify MUA the amount for which they are liable under the Excess Reinsurance. The Plaint states that the Reinsurers must appear on 15^th September 2005 to respond to this Plea.
27. On 15^th March 2005, MUA asked the Mauritian Court to postpone the action between MCB and MUA until September 2005, because it had joined the Reinsurers as Defendants -in- Guarantee and also because of the proceedings in London. This application was opposed by MCB on the ground that there is no relationship between MCB and the Reinsurers and it is solely MUA that is answerable to MCB. My understanding is that there have been no effective proceedings in Mauritius since March 2005 and nothing further will happen in the Mauritian Insurance Action until 15^th September 2005.

IV The English Reinsurance Proceedings

28. As I have stated above, I gave permission to serve the Reinsurance proceedings on MUA and MCB on 1^st February 2005. The application for permission to serve out of the jurisdiction was supported by evidence from Miss Jane Andrewartha. Exhibited to this were draft Particulars of Claim. Subsequently the Reinsurers have produced amended Particulars of Claim.^[17] These were referred to in the hearing before me and I will use them to set out the Reinsurers' case as against both MUA and MCB.
29. The Claim against MUA

The Reinsurers' pleaded case against MUA is, in summary, as follows:

(1) The direct insurance arrangements included an endorsement, originally made on 3^rd August 1999 and carried through in subsequent policy renewals. It stipulated as follows:

"It is hereby understood and agreed that the cover afforded by this policy is extended to include loss of property through the infidelity of employees of the insured with a Discovery Period of 72 hours.

All the terms, exceptions and conditions remain otherwise unaltered".

(2) The Excess Reinsurance concluded on 19^th and 20^th June 2002 is governed by English law.

(3) MCB's case in the Fraud Action is then set out.

(4) The Reinsurers then plead their case on the scope of the Excess Reinsurance.^[18] They allege that the facts and matters pleaded by MCB in the Mauritius Fraud Action fall outside the scope of cover provided by the reinsurance. Three points are made:

i) The facts and matters do not fall within either the "premises" or the "transit" head of cover in the Excess Reinsurance Policy;

ii) The facts and matters are not within the extension of the Excess Reinsurance cover provided "to include infidelity – 72 hour Discovery Period". It is pleaded that the purpose of this clause is precisely to exclude cover in respect of any systematic infidelity going back over a period longer than 72 hours before its discovery.

iii) In any event both the Excess Reinsurance and the underlying direct excess insurance provide for cover subject to the original Insured (i.e. MCB) and the Reinsured bearing the first MuRs 50Million per loss. It is pleaded that the facts, as related in the Fraud Action indicate that only one transfer of funds exceeds the excess figure of MuRs 50Million i.e. the cheque transfer dated 19^th December 1994 (ie. many years before the discovery of the fraud). Each cheque constitutes one "loss". Therefore, none of the claim is recoverable under this Reinsurance.

(5) Next the Reinsurers allege that, in any event, the Excess Reinsurance was validly avoided by letter dated 19^th January 2005 on the basis of material non-disclosure and/or material misrepresentation by MUA.^[19]

(6) The Reinsurers make the same allegations as to misrepresentation against both MCB and MUA. It is said that these misrepresentations were made in the Proposal Form completed by MCB.^[20]

(7) The non-disclosures relied on by the Reinsurers are set out in detail between paragraphs 31 and 49 of the draft Amended Particulars of Claim. The Reinsurers plead (at paragraph 32) that MCB were obliged to disclose all facts and matters which increased the "moral hazard risk associated with Insurance or Reinsurance of MCB". It is said that these facts would include those:

"…casting doubt on the honesty and/or propriety of the directors, officers and employees of MCB ……. and matters suggestive of deception of the regulatory authorities of MCB and/or of a failure to follow normal banking practices and/or of unorthodox banking practices being followed at MCB and/or a lack of supervision and/or controls at and/or over MCB".

(8) The Reinsurers assert that MUA knew or ought to have known of two broad categories of fact or allegation against MCB. These are (paragraph 34):

"(a) That there was history of significant and serious banking irregularities at MCB, amounting to much more than loose or idle rumours, including widespread and large scale irregular and/or unauthorised withdrawals from, and deposits into accounts held at MCB.

(b) Of MCB's participation, and that of Board members of MCB, in a very large fraud involving a national airline, Air Mauritius …….".

30. This pleading and the evidence in support of the application for permission to serve the proceedings out of the jurisdiction draw heavily on a report prepared by Tan Corporate Advisory PTE Limited ("the Tan Report"). Tan are forensic accountants based in Singapore. In March 2003, the Bank of Mauritius, which is the Central Bank of Mauritius, engaged Tan to prepare a report on MCB and to make recommendations. It was intended that this should be a private report. However on 19^th March 2005 the newspaper "Le Mauricien" published the final version of the Tan Report as a supplement to its regular edition. The Tan Report is referred to in the draft Amended Particulars of Claim in relation to serious irregularities within MCB and MCBFC. The pleading also refers extensively to allegations, made in Mauritius, of impropriety by senior staff of MCB and Air Mauritius. It is also alleged that, because of senior board level links between MCB and MUA, MUA had or ought to have had knowledge of the irregularities at MCB.^[21]
31. The misrepresentations of MCB and MUA which are relied upon are all based on answers to the Proposal Form. It is said that MCB and MUA (in using the Proposal Form as the basis of the presentation to Reinsurers) made false representations in respect of questions 5, 18 (a), 18(c), 21(b)(i), 22 and 23(d)(i).
32. In summary it is said that misrepresentations were made on the following topics:

(1) that its banking business was perfectly orthodox, whereas it included a significant degree of unorthodox business or business that was not properly recorded in the appropriate bankers' books.

(2) that it had a General Instructions Book, a Security Manual and various User Guides to govern its work, whereas this was not the case and there were in fact internal control weaknesses in its credit administration and credit decision process; no operating guidelines for the issue of office cheques; and nothing to prevent Mr Lesage acting alone unsupervised.

(3) that it had an internal audit department and made regular audits every two years, whereas this was not the case. This enabled improper use of MCB's office cheque accounts to go undiscovered.

33. The Reinsurers seek two sets of relief in their Particulars of Claim. As against MUA the Reinsurers seek (1) a declaration that the Reinsurance has been validly avoided for non-disclosure and/or material misrepresentation; (2) a declaration that the Reinsurers are not liable on the Reinsurance because the events (even if proved by MCB) fall outside the scope of the Reinsurance; (3) damages for misrepresentation pursuant to the Misrepresentation Act 1967.
34. The case against MCB

i) The Reinsurers assert that the governing law of their claim against MCB is English law, pursuant to sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, "since the events constituting the tort occurred in London" or "the most significant element or elements of those events occurred in London" so it is substantially more appropriate for English law to apply to the tort.^[22]

ii) It is alleged that MCB owed the Reinsurers a duty of care and that MCB knew that the Reinsurers would rely on the information set out in the Proposal Form to decide whether to participate in the proposed Reinsurance and if so on what terms. It is said that the contents of the Proposal Form constitute statements of fact by MCB, made with the intention that the Reinsurers would rely on them. It is alleged that MCB knew that the representations made were false.

iii) The Reinsurers claim against MCB damages for deceit or for negligent misstatement. In particular, the Reinsurers say that if they are liable to MUA on the Reinsurance, then they are entitled to recover those sums from MCB as damages.

35. The basis on which leave to serve out of the jurisdiction was sought and granted.

Paragraphs 66 and 67 of the witness statement of Miss Andrewartha, which supported the application for permission to serve out of the jurisdiction, identified the "gateways" under CPR Part 6.20(5) upon which Reinsurers relied. As against MUA, the Reinsurers relied on CPR Part 6.20(5)(a), because the Reinsurance was made within the jurisdiction; CPR Part 6.20(5)(b), because the contract was made through an agent (i.e. BRS) within the jurisdiction; and CPR Part 6.20(5)(c) because, it is said, the claim relates to a Reinsurance which is governed by English law. MUA accepts that there is a "good arguable case"^[23] as to the first two of these, but the third is hotly contested. As against MCB the Reinsurers relied upon CPR Part 6.20(8)(a) and (b), because the claim is made in tort where the damage was sustained within the jurisdiction, or the damage sustained resulted from an act committed within the jurisdiction. The Reinsurers also relied on CPR Part 6.20(3)(a) and (b) saying that MCB is a "necessary and proper party" to the proceedings against MUA. MCB accepts that there is a good arguable case as to the Part 6.20(8)(a) and (b) "gateways", but contests the "necessary and proper party" gateway.

V The Applications to Stay the Proceedings and set aside the permission to serve Proceedings out of the Jurisdiction

36. The Argument of MUA

MUA accepts that there are issues to be tried between it and the Reinsurers. However, it is submitted that these should not be tried in England, but in Mauritius. MUA submits, in broad outline: (i) that there is, at least, a "strong arguable case" that the Excess All Risks Physical Loss and Damage Reinsurance contains an exclusive jurisdiction clause in favour of the Mauritius Courts. MUA says there is no "strong reason"^[24] why the Reinsurers should not be made to keep their bargain, therefore there should be a stay and the permission to serve out should be set aside. (ii) Even if a Mauritius exclusive jurisdiction clause is not incorporated in the reinsurance, MUA argues that the Reinsurers cannot demonstrate^[25] that England is clearly the appropriate forum for the just resolution of the dispute between the Reinsurers and MUA. In this regard MUA relies on the following points: (a) even if the Reinsurance does not contain an exclusive jurisdiction clause, there is "a good arguable case" that the proper law of the Reinsurance is the law of Mauritius. (b) The factual and evidential focus of the case is Mauritius, because all the facts giving rise to the allegations of non-disclosure and misrepresentation are based in Mauritius. Moreover, all the witnesses and the documents concerning these matters are in Mauritius. (c) Because the Reinsurers have purported to avoid the Reinsurance, MUA will be forced to run the same points against MCB in the Mauritius Insurance Claim. Therefore the underlying factual issues raised in the Reinsurance Action will be considered by the Mauritius courts in the Mauritius Insurance Action. If the English Reinsurance proceedings carry on, there is a danger of inconsistent findings of fact as between two courts. (d) Although the proceedings in Mauritius may take some time, there will not be an unconscionable delay. Further, despite the Reinsurers' assertions, there is no clear and cogent evidence to support the allegations that either the Mauritius courts or other institutions in Mauritius will obstruct or prevent a fair trial or proper investigation of the grave allegations that have been made.

37. As for the anti-suit injunction, MUA's submission is that its decision to join the Reinsurers as Defendants -in- Guarantee in the Mauritius Insurance Action was a perfectly reasonable one. It cannot be characterised as vexatious or oppressive. Therefore the anti-suit and the anti-anti-suit injunctions should be set aside, even if (contrary to MUA's argument), the Reinsurance action is not stayed.
38. The arguments of MCB

MCB accepts that there are issues to be tried in relation to the Reinsurers' claim against MCB. However, like MUA, MCB submits that the Reinsurers cannot demonstrate that England is the most convenient forum with regard to their claim against MCB. MCB relies in particular upon the following factors: (i) the proper law of the alleged torts is the law of Mauritius. That may well be important because different principles are involved in relation to the allegation of misrepresentation and deceit. (ii) The focus of the case is Mauritius. This is because all the underlying facts which are said to give rise to the allegations of deceit and misrepresentation occurred in Mauritius. All the relevant documents and witnesses are there. (iii) Although it is accepted that the Proposal Form was presented in England, so that the representations were actually made in England and underwriters were induced to enter into the Reinsurance in England, those points will not have great significance in the trial. It is likely that MCB would accept that the Proposal Form was relied on by the Reinsurers and that it induced them to enter into the Reinsurance. (iv) The claim of the Reinsurers against MCB is intimately bound up with the Insurance and Reinsurance dispute, the focus of which is all in Mauritius. To permit the case to go ahead in England would create an undesirable multiplicity of proceedings.

VI The Key Issues to Decide

39. Between the Reinsurers and MUA

The first issue to decide is whether there is an exclusive jurisdiction clause in favour of the Mauritius Courts in the Reinsurance. If there is, then the only "strong reason" advanced by the Reinsurers for not giving effect to the clause is that the Reinsurers were induced to enter the contract containing the exclusive jurisdiction clause by a fraudulent misrepresentation so that it is ineffective. MUA accepts that it must have the evidential burden of establishing that the Reinsurance contains the Mauritius exclusive jurisdiction clause. It says it need only demonstrate that there is a "good arguable case" that this is so.

40. If I am not satisfied that the Reinsurance contains an exclusive jurisdiction clause then it is agreed that the issue is whether England is clearly and distinctly the convenient forum in which to determine the dispute between the Reinsurers and MUA. It is accepted that the Reinsurers have the burden of proof on this issue.^[26] In dealing with that I shall have to consider: (i) the proper^[27] law of the Reinsurance Contract; (ii) any other important factors, such as the nature of the issues raised as between the parties; where the witnesses and documents will be found; the fact that the Fraud Action and the Mauritius Insurance Action are continuing; and whether or not there is any "clear and cogent" evidence that the dispute between Reinsurers and MUA cannot or would not be properly dealt with in Mauritius within a reasonable time.
41. As between Reinsurers and MCB

There is, of course, no jurisdiction clause involved as between these parties. Therefore, it is up to the reinsurers to demonstrate that England is clearly and distinctly the most appropriate forum. The key matters to consider in these proceedings are: (i) the proper law of the alleged tort; (ii) the focus of the case of the Reinsurers against MCB, particularly in relation to witnesses and documents; and (iii) the importance (or otherwise) of the fact that MCB has started the Fraud Action in Mauritius, but also the fact that it has brought proceedings against Mr Appasamy in England.

42. I appreciate, of course, that I cannot consider the two proceedings brought by the Reinsurers separately. The fact that the Reinsurers have brought proceedings against both MUA and MCB is important, as is the fact that there are existing proceedings between MUA and MCB in Mauritius and the Fraud Action is being prosecuted by MCB in Mauritius. MCB have also started proceedings against Mr Appasamy in London. MCB says that these claims are "straightforward" claims under guarantees and have nothing to do with the insurance or reinsurance disputes.

VII Is there a jurisdiction clause in the Excess Reinsurance in favour of the Mauritius Courts?

43. The Law.

Two preliminary questions arise. The first is: by which system of law should the court determine whether the Excess All Risks of Physical Loss and Damage reinsurance contains a jurisdiction clause? The Rome Convention, scheduled to the Contracts (Applicable Law) Act 1990, excludes choice of court clauses from its scope.^[28] Logically, I should consider first the proper law of the reinsurance contract and then determine whether, in accordance with the rules of construction of that system of law, a valid jurisdiction clause has been incorporated. The problem with that approach is that under both English common law conflicts of law rules and the Rome Convention regime, a jurisdiction or arbitration clause is a strong indication as to the choice of the proper law of the contract.^[29] So, it might be said, the argument goes round in a circle.

44. In argument, Mr Malek QC, for MUA, accepted that there was no need to go into the issue of the proper law of the excess reinsurance in order to determine whether the jurisdiction clause applies. He accepted that the issue could be decided on English law principles. Mr Kealey QC, for MCB, submitted that if the excess reinsurance contract was governed by Mauritius law, then it would be Mauritius law that decided whether that contract contained a valid jurisdiction clause. MCB put in evidence a witness statement of Roger Montocchio QC,^[30] who was called to the Mauritius Bar in 1953 after he had been called to the English bar by the Middle Temple in 1952. He was appointed QC in Mauritius in 1976 and has been the legal adviser to MCB since 1984. He expresses his opinion on how a Mauritius court would consider the question of the jurisdiction clause if the Mauritius court concluded that the excess reinsurance was governed by Mauritius law.
45. I believe that I should consider the issue of whether there is a valid jurisdiction clause in the excess reinsurance in accordance with English law principles. I say this for two reasons. First, because I can and should approach this question as part of the exercise of discovering the proper law of the excess reinsurance contract. In the English court, that exercise must be done by English conflicts of laws rules, ie. by using the Rome Convention, in particular Articles 3(1) and 4. All parties accept that there was no express choice of law in the Excess Reinsurance contract. Therefore, under Article 3(1), I have to see if a choice of law is "demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case". In this case, that involves a consideration of whether there is a jurisdiction clause in the contract. At this stage of the operation, before a proper law has been determined, the only law that I can use to analyse the position must be the law of the forum, ie. English law; and so I must employ English rules of construction. That was the method used under the common law,^[31] and has been used also under the regime of the Rome Convention.^[32] Therefore I should consider the question of whether there is a jurisdiction clause using English rules of construction. The second reason, which is much less important, is that both the parties who are directly concerned with this issue, ie. MUA and the reinsurers, were content that I should consider this matter using English law principles of construction.
46. The second preliminary point is: up to what standard do I have to be satisfied that a jurisdiction clause is incorporated? Mr Malek, for MUA, argued that he need only demonstrate that there is a "good arguable case" that the reinsurance contract contained a Mauritian jurisdiction clause. Mr Swainston did not contest that submission. I think that he was right not to do so. It is well established that when an English court has to decide issues involving only law or the construction of a document for the purposes of determining whether it will accept jurisdiction, then the court makes a decision on the point, rather than saying whether or not there is a good arguable case on the issue. This is particularly so if the issue is not going to arise again at the trial stage. But if any factual investigation is involved, then, particularly if the point will also arise again at the trial stage, the "good arguable case" test has to be applied. This was the analysis adopted under the old law, ^[33] and appears to be endorsed by Dicey & Morris (13Ed, 4^th Supplement)^[34] in relation to the law since the Rome Convention became applicable. In this case there has to be some factual investigation into what happened at the underwriters' box on 29 May 2002. Therefore I think that the "good arguable case" standard has to be adopted.
47. The next question is: what are the English law principles of construction that must be applied to see if there is a good arguable case that the reinsurance contract contains a Mauritian jurisdiction clause? The ultimate issue is, as always, what, objectively, did the parties intend by their agreement? The difficulty arises in cases, as here, where it is said that the jurisdiction clause has been agreed by a process of "incorporation".
48. The courts' attitude, as always, is to ascertain the parties' intention from the wording of the contract as a whole and also the surrounding circumstances. However, where there is no express choice of jurisdiction in the contract wording, but it is said that the parties have agreed one by incorporating the wording of another contract, the courts have adopted a fairly strict approach. The analysis has proceeded by analogy with that which the courts have developed in relation to the incorporation of arbitration or jurisdiction clauses into bills of lading from charterparties. The leading case on this topic (in reinsurance) is the Court of Appeal's decision in AIG Europe (UK) Ltd v The Ethniki. ^[35]
49. In that case the direct insurance included a term (under the heading "Condition") that both parties agreed to submit to the jurisdiction of the Athens Courts "the trial of any dispute, which shall arise out from [sic] the present policy…". The reinsurance slip policy provided: "CONDITIONS: Wording as original". Both Colman J and the Court of Appeal rejected a submission that the general words in the reinsurance incorporated the jurisdiction clause from the direct insurance. Evans LJ, who gave the principal judgment with which Thorpe and Jonathan Parker LJJ agreed, said that the question was: "did the parties to the contract in which the general words of incorporation appear intend that their contract should include the particular term from the other contract referred to?". He concluded that they did not for the following reasons:^[36]

"In the original insurance, the clause does nothing to define the risk, and if regard is had to its terms, they are wholly inappropriate to disputes arising between insurers and reinsurers under the reinsurance contract (as distinct from disputes under the original insurance, which could be binding on reinsurers notwithstanding that they were decided by the Greek courts)".^[37]

50. Evans LJ clearly considered that the parties to the reinsurance used general wording of incorporation with the intention only of incorporating into the reinsurance those terms of the direct insurance that were relevant to the risk. This, he said, was consistent with the intention of the parties to the reinsurance that the subject matter of the two contracts should be the same. It did not follow that the parties to the reinsurance intended to incorporate terms that were not relevant to the risk, such as a jurisdiction clause.
51. This approach was followed in AIG Europe v QBE International Insurance.^[38] In that case Moore – Bick J thought that the proper law of the reinsurance contract was probably French law. Despite that, he followed the English law principles of construction propounded in the Ethniki case to decide whether a jurisdiction clause was incorporated.^[39] Those principles of construction were also applied by Colman J in Assicurazioni Generali SpA v Ege Sigorta AS.^[40]
52. Application to this case

Mr Malek submits that those cases are distinguishable. First, he argues that in this case the wording to be incorporated is not that of the direct insurance, but that of the primary reinsurance policy. Therefore, there is a much closer connection between the subject matter of the two reinsurances. Secondly, he submits that in the case of the Excess Reinsurance,^[41] the words of incorporation are, at the same time, much wider and more specific. He submits that "the subject matter and risk" of the primary reinsurance are certain risks that are governed by Mauritius law, which is the express choice of law of the parties to that contract.

53. I do not accept that MUA has established that there is a good arguable case that the Excess Reinsurance contains a Mauritius jurisdiction clause. My reasons for this conclusion are these:

(1) The general words of incorporation in the reinsurance slip policy do not specify any type of jurisdiction clause. The words only purport to incorporate "terms and conditions, riders and amendments applicable to the identical subject matter and the risk". Those words do not embrace a jurisdiction clause, which is not relevant to the risk: see the Etheniki case.^[42] Mr Malek says that the words must incorporate an express choice of law clause, because a "risk" can only exist within the framework of a particular proper law of the contract; it cannot exist in a legal vacuum. I accept the second half of that proposition, but that statement does not help decide what the proper law is; and it certainly does not follow from the proposition that the excess reinsurance must have a proper law that the parties therefore intended to incorporate a Mauritius choice of law clause.

(2) The parties agreed a form of wording that separated the phrase "Jurisdiction Clause" from the general words of incorporation under the heading "Conditions". To my mind that indicates that they intended to treat the question of jurisdiction as being separate from the matters covered by the general words of incorporation. This conclusion is consistent with the evidence that there had been some discussion of the question of a jurisdiction clause between Mr Gooding and Ms Seago at the underwriters' box on 29 May 2002. I cannot decide, on the basis of the inconclusive written evidence before me, what was the outcome of that discussion. However, it would seem, from the fact that the brokers had (after 29 May 2002) prepared the slip with the separate wording "Jurisdiction clause" under the heading "Conditions", (which Ms Seago scratched on 19 June 2002), that it was contemplated that there would be a separate clause setting out the agreed jurisdiction provisions. That is what happened with the primary reinsurance which incorporated the BRS 98 wording and the Wording Schedule. But those wordings are not attached to this Excess Reinsurance; nor is there anything else attached to this slip policy to say what is meant by "Jurisdiction clause". Although the parties might have intended to agree some wording, they had not. I accept Mr Swainston's submission that, on its own, this is a meaningless phrase.

(3) Ultimately, the issue of whether a Mauritian jurisdiction clause was agreed could be decided easily if a court resolved the dispute about what precisely happened at Ms Seago's box on 29 May 2002 and subsequently. On the third day of the hearing, during Mr Swainston's submissions, it was apparent that Mr Swainston was arguing that it would only be possible to resolve satisfactorily the issue of the incorporation of the jurisdiction clause by hearing evidence from Mr Gooding and Ms Seago. I asked Mr Swainston if he was applying for an order that there should be oral evidence from those witnesses and he said that he did wish formally to apply. The application was strongly opposed by both Mr Malek and Mr Kealey. I ruled in a judgment I gave at the time that the application was far too late and must be rejected. But the consequence of not hearing this evidence is that the issues of what exactly happened on 29 May 2002 and subsequently has not been resolved.

(4) There is some written evidence from Mr Gooding's superior at BRS, Mr SM Brown (the chairman of BRS) that he cannot recall discussing the issue of jurisdiction with Mr Gooding.^[43] Although he says that he would have expected the excess reinsurance to be consistent with the primary reinsurance as to jurisdiction, I note that the excess crime reinsurance (which is the other excess reinsurance), did not have either a jurisdiction or proper law clause.^[44] So there is inconsistency in the way the issue of jurisdiction and proper law was handled as between the primary and the two excess reinsurance policies. But the reason for all this can only be determined after oral evidence, in my view.

54. The consequence of this conclusion is that I have to decide the question of whether there should be a stay of the English Reinsurance proceedings as against MUA on Spiliada principles, rather than those cases concerned with the enforcement of jurisdiction clauses, most recently considered by the House of Lords in Donohue v Armco Inc.^[45] Although I heard argument on the points, I do not need to decide: (a) whether this is an exclusive jurisdiction clause; and (b) whether the clause is invalid or ineffective because the Excess Reinsurance was (allegedly) induced by fraudulent misrepresentation by MUA/MCB.

VIII The Spiliada principles and their application as between MUA and the Reinsurers

55. Having concluded that there is not a good arguable case that there is a Mauritius jurisdiction clause in the reinsurance contract, I have to consider next whether the reinsurers have satisfied me that England is clearly and distinctly the appropriate forum in which to decide the issues arising on the Excess Reinsurance. If it is not, the present action must be stayed; the permission to serve out of the jurisdiction set aside and the undertakings given in lieu of the anti – suit injunctions discharged.
56. I have already referred to the matters that I will have to take into account. The factor that was most emphasised by both MUA and the Reinsurers was the proper law of the Excess Reinsurance contract. The Reinsurers say that this is of fundamental importance because if the contract is governed by English law then there are three short points of construction of the policy that can quickly and easily be determined in the English court; and if the Reinsurers win on any one of those, then they cannot be liable on the policy. MUA (supported by MCB) say that the point is not quite so simple.
57. What is the governing law of the Excess Reinsurance policy?

All parties accepted that I cannot determine finally the proper law of the contract at this stage. Mr Malek and Mr Kealey submitted that the burden is on the Claimants to show that there was "a good arguable case", ie. that they had "a much better argument on the material available",^[46] that the Excess Reinsurance contract is governed by English law; and if they fail to show that, then the court should treat the contract as being subject to Mauritius law. Mr Swainston submitted that the cases demonstrated that, in the factual circumstances that exist here, there is a presumption that this reinsurance contract is governed by English law and it is for MUA and MCB to demonstrate the contrary.

58. It is, of course, well established that in cases where a Claimant wishes to sue in the English courts a defendant who is resident outside the UK (and not subject to the Judgments Regulation of the EU), then the burden of proof rests upon the Claimant to persuade the court that England is clearly the appropriate forum.^[47] If part of the Claimant's case in showing that England is clearly the appropriate forum is that the proper law of the contract concerned is English law, then it must be for the Claimant to show, on the material available, that he has a much better argument on that point.
59. All parties agreed that I must consider this question by reference to the tests set out in the Rome Convention as scheduled to the Contracts (Applicable Law) Act 1990. That provides:

"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. By their choice the parties can select the law applicable to the whole or a part only of the contract.

…..

Article 4(1)

To the extent that the law applicable to the contact 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. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.

Article 4(2)

Subject to the provisions of paragraph 5 of this Article, 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, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated…

Article 4(5)

Paragraph 2 shall not apply if the characteristic performance cannot be determined and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears form the circumstances as a whole that the contract is more closely connected with another country".

60. It was accepted by all parties that if the Mauritius Jurisdiction clause was not incorporated into the excess reinsurance, then there was no express choice of law by the parties to that contract. Therefore, if there is to be an implied choice, then one or other party had to show it had the better of the argument that it had "demonstrated [the proper law of the contract] with reasonable certainty by the terms of the contract or the circumstances of the case". It is generally accepted that, despite the use of the word "or" in Article 3(1), the court should consider both the terms of the contract and the circumstances of the case in order to decide on the implied choice of law of the parties.^[48] This means that, if necessary, the court will have to consider the negotiations that took place between the parties to the contract.^[49]
61. Mr Swainston submitted that the relevant factual matters were these: (i) the excess reinsurance contract for 2002/2003 was placed before the direct insurance;^[50] (ii) the slip for this excess reinsurance was placed on the London Market with a London Market underwriter as leading underwriter; (iii) this excess reinsurance was on a standard Lloyd's Non Marine Association Form and contains standard London Market clauses. Mr Swainston draws attention to the reference to NMA 1779 as the form of the policy; the Terrorism Exclusion Clause NMA 2921 and the incorporation of a standard clause for a premium payment warranty – "LSW 3000 – 90 days". He submits that the remark of Hobhouse J in Forsikringsaktieselskapet Vesta v Butcher^[51] that "there remains something surprising and improbable about the conclusion that the Lloyd's slip and the Lloyd's policy are governed by anything other than English law" is equally apt in the present case; (iv) the wording on the face of the Proposal Form (set out above) plainly had in mind English law obligations of disclosure and the consequences of a failure to comply with those obligations.
62. In these circumstances, Mr Swainston relied heavily on the decision of the Court of Appeal in Gan Insurance Co Ltd and Eagle Star Insurance Co Ltd v Tai Ping Insurance Co Ltd.^[52] In that case the defendant, Tai Ping, a Korean insurance company, insured the construction of a large electronics factory in Taiwan for "Erection All Risks". The direct policy contained a clause (clause 22) that was taken by all parties to be an express choice of Taiwanese law. Tai Ping sought and obtained facultative reinsurance on the London market with Gan. The reinsurance slip policy was on form "NMA 1779 following original". It contained the terms "CONDITIONS: Full Reinsurance Clause NMA 416…" and "ORIGINAL CONDITIONS: All risks as per local standard EAR policy wording…NMA 464 unless war and civil war exclusion contained in original policy wording". There was a fire at the factory. The direct insurers avoided the policy for non – disclosure and misrepresentation. The reinsurers, Gan, did the same. Gan then sued Tai Ping in England for various declarations, to the effect that it was not liable on the reinsurance or it had validly avoided it. Gan sought to serve their claim out of the jurisdicton on Tai Ping. One of the grounds on which leave was sought was that the reinsurance was governed by English law. Cresswell J and the Court of Appeal held that, applying Article 3(1) of the Rome Convention, it was demonstrated, with reasonable certainty, that there was an implied choice of English law for the reinsurance contract. Alternatively, the proper law of the reinsurance contract was English law on the basis of Article 4(2) of the Rome Convention, because England was the country with which the contract was mostly closely connected, based on the presumption to that effect as England was the principal place of business of the reinsurers.
63. Beldam LJ said that it was not possible to infer from the wording of the reinsurance slip policy that the parties to that contract intended to incorporate all the terms of the direct policy.^[53] He continued:

""In my view where a contract of reinsurance is made in London between London underwriters and brokers their agreement is based on the well known duty of disclosure and the right of an insurer to avoid a policy for misrepresentation, clause 22 of the [direct] policy^[54] would introduce a term of Taiwanese law in conflict with this basis. On principle, in the absence of express agreement, I would hold that it cannot reasonably be imputed to the parties that they intended clause 22 to apply. At the most, scope for the words "as original" and "in the original policy wording" could be given by its application to the provisions of the [direct] policy which defined the extent of the risk insured".

Beldam LJ concluded that Cresswell J had been correct to conclude: (i) that the express terms of the reinsurance contract did not incorporate a term of the insurance contract (clause 22) making Taiwanese law the proper law of that contract; and (ii) that there was an implied choice of English law by the parties to the reinsurance contract. He, like the judge, relied particularly on the parties' use of standard London clauses in the reinsurance contract terms; and also the fact that the standard London procedure of presenting the risk to reinsurers had been used.^[55] Brooke and Mummery LJJ agreed. Mr Swainston argued that the facts in the present case were very similar, so that, logically, the same conclusion as to the proper law must be reached in this case: viz. that the parties to the excess reinsurance had impliedly chosen English law as the proper law of the contract.

64. Mr Malek and Mr Kealey submitted that this analysis was wrong. First, they drew attention to the fact that in the Gan case, the Court of Appeal had not had cited to them either The Njegos,^[56] nor Pacific Molasses Co and United Molasses Trading Co Ltd v Entre Rios Compania Naviera SA ("The San Nicolas").^[57] Both those cases were concerned (under the pre – Rome Convention law) with the question of the implied choice of law in a bill of lading contract, where the bill of lading incorporated the terms of the charterparty (but not the arbitration clause which provided for disputes to be arbitrated in London.) In the first case, the President held that the bill of lading was impliedly governed by English law on the basis that the two contracts were so closely connected and contained so many common terms that the parties to the bill of lading contract must have intended (by implication) that the terms of that contract should be governed by the same proper law as the charterparty. The same approach appears to have been used by the Court of Appeal in the San Nicolas. However, Lord Denning MR simply said in that case that "the clause which defines the proper law of the charterparty is incorporated".^[58] The reasoning was not elaborated further. Mr Kealey went so far as to argue that, because these two cases were not cited to the courts in the Gan case, it was decided per incuriam; so it was wrong and was either not binding or should not be followed.^[59]
65. Secondly, both Mr Malek and Mr Kealey also submitted that, on the correct analysis of the terms of the excess reinsurance and the factual circumstances leading up to Ms Seago scratching the slip policy on 19 June 2002, MUA had "a much better argument on the material available" that the parties had impliedly chosen Mauritius law as the proper law of the Excess Reinsurance contract.
66. In support of their submission that the parties had impliedly chosen Mauritius law, they pointed to the facts that: (i) the reinsurance (whether primary or excess) was intended to be "back to back" with the direct insurance; (ii) the three direct insurances were governed by Mauritius law; (iii) the interest of the reinsurance was the same as that of the direct insurance, ie. (broadly) losses of MCB in Mauritius; and (iv) the primary reinsurance policy was governed expressly by Mauritius law and the Excess Reinsurance incorporated its terms and conditions applicable to the subject matter and the risk of that policy. All these factors pointed to an implied choice of Mauritius law for the Excess Reinsurance.
67. In my view neither side has a "much better argument on the material available" in relation to Article 3 of the Rome Convention. Mr Swainston can point to the factors which might suggest that there was an implied choice of English law as the proper law of the excess reinsurance, in particular the fact that the reinsurance was broked by English brokers to the leading underwriter in London; the use of the English market form and standard clauses and the proposal form which implies an English law duty of disclosure. (Although it is fair to point out that the duty of disclosure, as a part of the duty of good faith, is not a contractual duty – on either side, under English law. It arises by virtue of the general law). He also has the powerful support for this approach in the Court of Appeal's decision in the Gan case, where, as here, the policy from which terms were incorporated included an express choice of law and jurisdiction clause, yet the reinsurance was still held to be governed by English law.
68. Mr Malek and Mr Kealey can point to the wording in the "Conditions" of the excess reinsurance; to the fact that the primary reinsurance is governed by Mauritius law and the general principle that interrelated contracts should prima facie be governed by the same proper law. But I have to be satisfied that one or other party has the better of the argument that, in the words of Article 3 of the Rome Convention, the choice of the parties as to the proper law of the Excess Reinsurance is "demonstrated with reasonable certainty". I must have proper regard for the words "reasonable certainty". In my view the key lies in what happened during the negotiations between Mr Gooding and Ms Seago on 29 May and 19 June 2002. The evidence on that is entirely unclear on the material available. Therefore there is a stale mate in relation to Article 3(1).
69. That means that I must consider Article 4 of the Rome Convention, which provides that if the proper law is not chosen in accordance with Article 3(1), then the applicable law of the contract is to be that of the law of the country with which the contract is most closely connected. Article 4(2), which I have already set out, is particularly important here. That provides that it is to 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, either (i) at the time of the conclusion of the contract, its habitual residence or (ii) its "central administration", in the case of a body corporate; or (iii) if the contract is entered into in the course of that party's trade or profession, the country in which the principal place of business is situated.
70. On Article 4 it seems to me that Mr Swainston has much the better of the arguments. The characteristic performance of a reinsurance contract must be the payment of the reinsurance in the event of a valid claim being made.^[60] The leading reinsurers are based in England and it is clear that the characteristic performance of the excess reinsurance would be performed in England. Although, ultimately, the interest with which the reinsurance is concerned is the MCB, that does not persuade me that, overall, the excess reinsurance is more closely connected with another country, so as to trigger the second part of paragraph 5 of Article 4.
71. Therefore, for the purposes of deciding the present jurisdiction issue, I will proceed on the basis that there is a good arguable case that the applicable or proper law of the Excess Reinsurance is English law.
72. What is the consequence of a conclusion (for present purposes) that the proper law of the Excess Reinsurance is English law?

The fact that English law is (or may well be) the proper law of the relevant contract may be of very great importance or it may be of little in the context of the inquiry as to which is the most suitable forum for the determination of the case.^[61] In this case this fact is, in my view, of very great importance. Indeed if English law is the proper law of the excess reinsurance, then it is likely to have a crucial impact on the shape and possible outcome of the case. There are several reasons for this.

73. First, at the threshold, the Mauritius courts have a different approach to the question of deciding the proper law of the excess reinsurance contract. This is clear from the evidence of Mr Montocchio QC. He states that in matters of private international law, Mauritius is guided by the French private international law principles.^[62] Therefore the Rome Convention principles would be irrelevant in those courts.^[63]
74. Secondly, Mr Montocchio also makes it plain that, in his view, a Mauritius court would be likely to conclude that the Excess Reinsurance is governed by Mauritius law and that Mauritius is "quite clearly" the appropriate forum to determine issues under the reinsurance.^[64] Doubtless this is also the advice that MUA has received.
75. Thirdly, it appears from Mr Montocchio's statement that if Mauritius law is applied, then the principles concerning the central issues of (a) the construction of the 72 hour clause; and (b) the issues of non – disclosure and misrepresentation may be significantly different to those applied by an English court applying English insurance law principles. On the first point, although the principles of interpretation under Mauritius law, as set out in Mr Montocchio's statement,^[65] appear to be similar to English law principles, Mr Montocchio goes on to point out that as to the interpretation of agreements, the Mauritius court will seek guidance from the French case – law and textbook writers. In particular he notes that, in relation to insurance policies, Article 1162 of the Civil Code will find application, so that if there is ambiguity in policy wording then it will be interpreted in favour of the insured against the insurer, because it is the insurer who draws up the policy.^[66] It is not clear whether this principle applies to reinsurance, but Mr Montocchio does not state the contrary.
76. In relation to issues of non – disclosure and misrepresentation, the relevant provisions are found in Articles 1983 – 1 to 1983 – 92 of the Code Napoleon, which were inserted into the Mauritian Civil Code in 1983.^[67] Those provisions do not apply to reinsurance. But it is clear from Mr Montocchio's statement that, in relation to the direct insurance, the duty of disclosure is different from English law.^[68] Furthermore, the scope for avoiding the insurance for non – disclosure or misrepresentation is much reduced compared with English law. In essence, there can only be avoidance if it is demonstrated that a non – disclosure or false declaration was intentional by the insured.^[69] Settled case law in France, which would be followed in the Mauritius court, states that it is on the insurer to prove the bad faith of the insured and that the wilful non – disclosure or false declaration changed the object of the risk or made a risk less important in the insurer's opinion.^[70] Mere incorrect declarations are not enough to establish bad faith. Mr Montochhio states:

"it has been decided that ambiguous and defective proposal forms or absence of any form or lack of attention on the part of the insured or of the insurer will generally rule out bad faith. Bad faith is equally ruled out when the insured may have been mistaken about or misjudged the reality of the facts which he had to bring to the attention of the insurer."^[71]

77. The importance of these principles, which apply to insurance, as opposed to reinsurance, is that in relation to the claim by MCB against MUA, Mr Montocchio appears to be saying that MCB has a very strong claim and the defences of non – disclosure and misrepresentation are very difficult to mount successfully under Mauritius law. When it comes to reinsurance, Mr Montocchio says that, assuming the Excess Reinsurance is governed by Mauritius law, then the relations between MUA and the Reinsurers will be governed by principles of good faith and cooperation between the parties. He states that French authors say that Article 1134 of the Civil Code will apply as between a reinsurer and the reinsured (the cédant). He continues:

"This duty of utmost good faith under Article 1134 of the Civil Code is at the root of the essential principle that the reinsurer must share the fortunes of the cédant. The reinsurance contract implies, by its very nature, the "follow the fortunes" principle."^[72]

78. The implication of this statement is clear; namely that if the claim of MCB against MUA succeeds, then the Reinsurers will have to "follow the fortunes" of MUA and pay under the excess reinsurance. In short any independent defences that the Reinsurers might have if the matter were being considered under English law are unlikely to be available if the reinsurance claim is considered under Mauritius law.
79. Fourthly, if this analysis of the effect of Mauritius law is correct, there is a danger, at the least, that if the Reinsurance claim were tried in Mauritius, then, in the eyes of English conflicts of laws rules, the wrong proper law and thereafter the wrong principles of law would be applied to all the issues that arise in this case as between the Reinsurers and MUA. If this is so, then it seems to me to be legitimate for the Reinsurers to say, first: that it is justifiable for them to try and ensure that the correct proper law and principles determine the issues as between them and MUA; and, secondly, that it is reasonable for them to institute proceedings in England for a negative declaration as to liability and for a further declaration that the contract was properly avoided in order to ensure that those issues are decided in a court where the correct proper law and principles will be applied.^[73]
80. The "Vesta v Butcher" point

This aspect of the argument was elaborated particularly by Mr Kealey and was adopted by Mr Malek. The argument runs thus: even if the court concludes that the excess reinsurance is governed by English law, the construction and meaning of the 72 hour discovery clause, relied on so heavily by the Reinsurers, must depend on the meaning of that clause as it is construed in the direct insurance, according to Mauritius law, by analogy with the analysis of all three courts in Vesta v Butcher. Therefore, on a critical question of coverage, English law will have a significantly less important role to play than Mauritius law. (This argument assumes, therefore, that the 72 hour discovery clause, as interpreted by Mauritius law, would be significantly different to its construction under English law). So, it is argued, the importance of English law is much reduced in deciding what is the most appropriate forum for the resolution of the dispute between MUA and the Reinsurers.

81. In Vesta v Butcher the original insured was a Norwegian fish farmer. He insured his fish farm with Vesta, a Norwegian insurance company. That contract was governed by Norwegian law. It contained a "Stock control clause" by which the insured agreed to maintain a written record of stock. It also contained a warranty that a 24 hour watch would be kept on the fish. Neither clause was fulfilled by the insured. Vesta reinsured 90% of its risk on the London Market. It was expressly agreed that the reinsurance was to be on the same terms and conditions as the original insurance. There was a violent storm and many of the fish being farmed escaped. The insured's claim against Vesta was settled. Vesta sued the reinsurers. The reinsurers denied liability on the ground (amongst others) that neither warranty had been kept. So, as a matter of English law, which they argued was the proper law of the reinsurance, they were entitled to avoid the reinsurance, despite the fact that neither breach of warranty was causative of the loss of the fish. Hobhouse J held that under Norwegian law the breach of warranty would not have entitled the insurers to avoid the policy of insurance. The questions that therefore arose in relation to the reinsurance were: (a) what was the proper law of the reinsurance; and (b) if it was English law, could the reinsurers avoid the reinsurance for breach of the warranties?
82. Hobhouse J held that the reinsurance was governed by English law. But he held that he had to take into account the fact that the parties to the reinsurance must have contemplated that the original insurance was governed by Norwegian law so that:

"…the parties intended the construction of the [relevant warranty terms] shall be governed by Norwegian law. Whether one chooses to categorize this conclusion as an application of the English substantive law of construction of an English law contract or as the application of the English choice of law rules does not matter".^[74]

Accordingly, he held that the reinsurers could not rely on the breach of warranties to avoid the reinsurance and they were liable to pay Vesta. The Court of Appeal and the House of Lords reached the same result, although their reasoning was not quite the same as that of Hobhouse J.

83. In the House of Lords the principal speech was given by Lord Lowry. Lord Templeman gave a shorter speech, also dismissing the reinsurers' appeal. Lord Bridge and Lord Ackner agreed with Lord Lowry and Lord Templeman. Lord Griffiths also did so, although he added reflections of his own concerning aspects of insurance and reinsurance and the obscurity of the reinsurance form used in that instance.^[75]
84. The problem facing all the courts was that the direct insurance was governed by Norwegian law, which treated a breach of warranty in one way, and a reinsurance of that risk (as to 90%) under English law, which treated a breach of warranty in the opposite way; so how could the two be reconciled? The answer that Lord Lowry gave, with which all the other Law Lords agreed, was to treat the problem as "one of construing the words in the reinsurance contract and not one involving an imputed choice of law."^[76] He held that there was no need to treat the reinsurance contract as partly governed by Norwegian law, "except in the special sense that one must resort to Norwegian law in order to interpret and understand the meaning and effect of the [relevant warranties] in both contracts."^[77] The essence of Lord Lowry's reasoning is that the real intention of the parties to the reinsurance contract was that the words which were common to both contracts, in particular the warranties, should be construed in the same way and in accordance with "a Norwegian legal dictionary" to ascertain the meaning of the relevant terms and conditions.^[78]
85. If I proceed by analogy with the analysis of Lord Lowry in Vesta v Butcher, then I have to ask: what, on the material currently available, appears to the intention of the parties to the Excess Reinsurance as to the construction of the 72 hour discovery clause in that policy? There is no evidence from either Ms Seago or Mr Gooding concerning the surrounding circumstances leading to the inclusion of that clause in the slip policy wording for 2002. The situation is not the same as in Vesta v Butcher, because there the wording of the reinsurance incorporated the wording of the direct insurance; whereas in this case the wording incorporated is that of the primary reinsurance policy. The latter policy does not contain a 72 hour discovery clause at all. Therefore, on the material currently available I cannot conclude that there is even a "good arguable case" that the parties to the Excess Reinsurance would have intended that the 72 hour discovery clause in the excess reinsurance should be interpreted in the same way as that in the Excess All Risks Physical Loss and Damage direct insurance and "in accordance with a Mauritius law dictionary". This is quite apart from the fact that it appears to be Mr Montocchio's evidence that the principles of construction of contracts under Mauritius law are, (as it seems to me), similar to those of English law.
86. Therefore, my conclusion that the Excess Reinsurance is (or may well be) governed by English law is, in the circumstances of this case, a powerful factor in favour of England being the most appropriate forum in which to decide the reinsurance dispute.
87. The Preliminary Issues argument

Mr Swainston argued that, as between MUA and the Reinsurers, the present case cries out for preliminary issues to be determined and it is obvious that this should be done in England. It will be recalled that there are three construction issues that the Reinsurers raise.^[79] Mr Swainston argues that these can be determined quickly and easily in the Commercial Court, which is used to dealing with such issues. Moreover, insofar as Reinsurers allege that there is a "London Market understanding" as to the meaning of the 72 hour discovery clause, that can best be dealt with in England, where evidence of "market understanding" is to be found. Mr Swainston submits that this case is similar to New Hampshire Insurance Company v Philips Electronics North America Corporation (No1).^[80] There the Court of Appeal concluded that there were issues of construction that could be decided on assumed facts and that the English court was the appropriate forum in which to determine those issues. Although the court found that Illinois would be the appropriate forum to determine the facts, they approved the judge's conclusion that, taken overall, England was the most appropriate forum.

88. Mr Malek and Mr Kealey did not appear to dispute that these preliminary issues of construction of the excess reinsurance could be determinative of MUA's claim against the Reinsurers. But they relied on the evidence of Mr Montocchio QC, ^[81] who stated that the Mauritius court can hear and determine preliminary issues prior to the trial "on the merits", particularly if those issues might be determinative of the dispute between the parties. If relevant, the "London Market understanding" evidence could be adduced in the Mauritius court.^[82]
89. It seems to me, on the present material, that there is a strong argument in favour of a court determining these three points of construction or "coverage" at an early stage. The facts could probably be taken as those set out in the pleadings of MCB in the Fraud Action and the Mauritius Insurance Action. There would be no need for further evidence. If the matter were being dealt with in the English court it would obviously be imperative to deal first with the threshold question of the proper law of the Excess Reinsurance. That would need evidence, but not a great deal and the principal witnesses would be Ms Seago and Mr Gooding who reside in England. All four preliminary issues could be decided quickly.
90. However, as Phillips LJ pointed out in the New Hampshire Insurance case (at page 64), the fact that preliminary issues of construction can be quickly and easily decided in the court of what is or may be the proper law of the contract does not determine that, overall, that court is the most appropriate forum. This will depend on the importance of the preliminary points in relation to the rest of the case. So I cannot determine the weight of the "preliminary issues factor" as a point in favour of England being the most suitable forum at this stage. I must next consider the other aspects of the reinsurance claim, those concerning non – disclosure and misrepresentation.
91. Non – Disclosure and Misrepresentation

In essence there are three aspects to the non – disclosure and misrepresentation case put forward by the Reinsurers against MUA. These are: (a) non – disclosure of actual irregularities with MCB; (b) non – disclosure of press and other reports of alleged irregularities within MCB; and (c) fraudulent misrepresentations in the Proposal Form answers made by MCB but presented by MUA to the London market. It is clear that the Reinsurers are not confining their case to non – disclosure of allegations, in the press or elsewhere, of impropriety within MCB. If they were, then there would be no need to investigate the truth of the allegations, only whether they had been made and whether they were known or ought to have been known to MUA. The Reinsurers are making a wide – ranging assault on MCB's conduct as a bank and its regulatory regime (or lack of it). The allegations concern a number of MCB's clients, its directors, officers and employees and they cover the period from 1991 to 2003.

92. Mr Malek and Mr Kealey made it plain that the factual allegations made by the Reinsurers are hotly contested. In this respect MUA is obviously dependent on MCB to deal with the allegations. MCB does not accept the contents or conclusions of the Tan Report. It denies that the irregular transactions alleged were committed with its knowledge. It denies that there were fraudulent misrepresentations in the Proposal Form.
93. In these circumstances, it seems to me that Mr Swainston was unrealistic when he argued that many of the factual issues concerning non – disclosure and misrepresentation would either disappear or could easily be resolved on the documents. If the alleged non – disclosures and misrepresentations have to be investigated, there will have to be a detailed factual inquiry and many witnesses will have to be called and many documents considered. All the relevant witnesses and documents are in Mauritius.
94. Therefore, so far as the factual investigation of the non – disclosure and misrepresentation aspects of the Reinsurance case go, it is clear, in my view, that the balance of convenience (as between MUA and the Reinsurers) lies in the case being tried in Mauritius.
95. The multiplicity of proceedings issue.

This was raised by both Mr Malek and Mr Kealey. However it seems sensible to consider it after I have dealt with all the other aspects of the case between MUA and the Reinsurers and MCB and the Reinsurers.

96. Other factors pressed by the Reinsurers

Mr Swainston submitted that there were two other factors that demonstrated that England was clearly the appropriate forum for the trial of the issues as between MUA and the Reinsurers. These were, first: the time to trial; and secondly, an apparent reluctance on the part of MCB and other Mauritius authorities to investigate thoroughly the irregularities at MCB that had led to the siphoning off and fraudulent misappropriation of funds belonging to MCB. In her first witness statement, Miss Andrewartha states that press reports concerning the Air Mauritius and NPF Affairs suggest that both have "political dimensions", with the implication that there is widespread corruption at the highest level in Mauritian institutions.^[83] Miss Andrewartha even hints that this corruption may extend to the judiciary, although she does so by wounding, but fearing to strike, saying: "Even if the corruption in Mauritius does not extend to the judiciary…".^[84]

97. I reject both of these arguments. As to the first, there is no evidence that the trial of these matters would be unduly delayed if they took place in Mauritius. It may be that the process would be slower than in the Commercial Court, but that in itself does not add anything to the scales in making England clearly the more appropriate forum. As to the second, I regard it as most unfortunate that these statements were made at all by Miss Andrewartha. It is very well established law that allegations of political, governmental or judicial impropriety in other jurisdictions should not be made and will be rejected out of hand unless there is clear and cogent evidence to support them. Here there is no more than press or political comment, which is wholly unsubstantiated by independent evidence. Moreover, whatever the evidence about press and Opposition comment concerning the role of politicians and other authorities, there is not a shred of evidence to suggest, let alone clearly demonstrate, that there is any impropriety amongst the judiciary in Mauritius.
98. "The Overall Test"^[85]

At this stage I believe I have dealt with all the factors that arise as between MUA and the Reinsurers. But before I consider the "overall test" to decide whether the Reinsurers have satisfied me that England is clearly the appropriate forum for the trial of the issues between those parties, I must look at the position as between the Reinsurers and MCB. Having done so I should apply "the overall test" in relation to all parties.

IX The Spiliada principles: their application as between MCB and the Reinsurers.

99. The bulk of the argument between MCB and the Reinsurers concerned the proper law of the torts alleged to have been committed by MCB. It is alleged that MCB answered and signed the Proposal Form that was then given to its brokers in Mauritius, City Brokers Ltd, who presented the form to MUA, who sent it to BRS, who presented it to the London Market as part of the renewal of MUA's reinsurance programme. The Reinsurers say that the answers were fraudulent; that they relied on them to conclude the excess reinsurance and they have suffered loss as a result, or will do of they have to pay on the excess reinsurance.
100. There was less argument about other factors, although Mr Kealey naturally urged the point that the Fraud Action and the Mauritius Insurance Action had begun in Mauritius and would continue whatever happened in England. Mr Swainston repeated his argument that the factual issues concerning the alleged fraudulent misrepresentations in the Proposal Form could be dealt with largely on the documents. Mr Kealey argued to the contrary. I have already rejected Mr Swainston's submission on that point and I need not say more about it.
101. The Proper law of the alleged tort

It is accepted by both sides that this has to be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (hereafter "PILA"). Sections 11 and 12 provide:

"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 the 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".

102. Mr Kealey accepted that the events constituting the torts alleged took place in both Mauritius and England. But he submitted that the most "significant" events took place in Mauritius. That was where the negligence and dishonesty allegedly occurred and where the negligent or dishonest statements on the Proposal Form were made. It was in Mauritius that the alleged irregularities took place and allegedly came to the knowledge of officers and directors of MCB. So the substance of the alleged wrongdoing was in Mauritius.^[86] Mr Kealey also submitted that it was significant that the Proposal Form was completed in connection with two insurances. First, the direct insurance, which is governed by Mauritius law; and secondly, a reinsurance whose putative proper law was, he submitted, Mauritius law.
103. Mr Swainston submitted that by far the most significant element in the torts alleged is the presentation of the misrepresentations in the answers in the Proposal Form to the Reinsurers in London and their reliance on them here. He relied on the analysis of Mance LJ in Morin v Bonhams & Brooks.^[87] That case concerned a misrepresentation made in a catalogue for a car auction in Monaco. The claimant received the catalogue in England, but, armed with the catalogue, he went to the auction in Monaco to buy the Ferrari advertised. He did so. But the car suffered mechanical faults and he sued for damages for misrepresentation. The question was: was the law applicable to the tort English or Monagasque law? Mance LJ said, at paragraph 16 of the judgment:

"16. Section 11 of the 1995 Act adopts a geographical test. Where elements of the events constituting a tort occur in different countries, then [other than in cases of personal injury or death]…it selects the law of the country "in which the most significant element or elements of those events [ie. those constituting the tort] occurred". What is required is an analysis of all the elements constituting the tort as a matter of law and a value judgment regarding their "significance", in order to identify the country in which there is either one element or several elements, which taken alone or together, outweighs or outweigh in significance any element or elements to be found in any other country. The governing law under s.11(2) will be the law of that country". [Mance LJ's emphasis in bold].

104. I would respectfully add that "significant element or elements" cannot simply mean those elements which involve the most elaborate factual investigation. It is the significance of the particular element or elements in making up the tort alleged that counts.
105. It seems to me that there are six significant elements that make up the torts alleged in this case, ie. deceit and fraudulent or negligent misrepresentation. First there is the situation in MCB during the period 1991 to 2002 as it actually existed; were there irregularities and failures in regulation and did officers and directors of MCB know of them? That element is connected to Mauritius. Secondly, there is the completion of the Proposal Form by the directors and officers of MCB, which is said to have been done fraudulently. That was all done in Mauritius. Thirdly, there is the transmission of the Proposal Form to City Brokers Ltd in Mauritius and then to BRS in England, with the implication that MCB were content that the answers given should be used for presentation to the Reinsurers. That continuing representation took place in both Mauritius and England. Fourthly, there is the presentation of the Proposal Form by BRS to the Reinsurers as part of the renewal programme for 2002, with the continued implication that MCB continued to stand by the statements made in the Proposal Form. The presentation took place in England. Fifthly, there is the reliance by the Reinsurers (so it is said) on the Proposal Form, so as to conclude the Excess Reinsurance. That took place in England. Sixthly, there is any loss that the Reinsurers have suffered or will suffer as a consequence of the alleged deceit. If loss is suffered, it will be in England.
106. What is the proper "value judgment" regarding the significance of those six elements? In considering this I think I must assume for the present that the alleged torts did occur; I cannot see how one can proceed otherwise. That is not to say that I must reach a concluded view on the law applicable to the torts; other facts may come to light at a trial which change the analysis. But, in my view the most significant elements of the torts of deceit or fraudulent misstatement are those which concern making the untrue statements in the Proposal Form (knowing them to be so), presenting the untrue statements to the other person with the intent that he should rely on it and then the actual reliance by that person on the untrue statement to his loss. Although the first of these elements starts in Mauritius, it is continued in England, because the Proposal Form, with the MCB signatures, comes to England and MCB continues to make the fraudulent misrepresentations here. The intention that the Reinsurers should rely on them continues to operate here in England where the Reinsurers receive the Proposal Form. The reliance, which is the most significant element of all, in my view, takes place in England.
107. The antecedent facts concerning the true situation in MCB are important, but it is what is done with those facts that really matters so far as the tort of fraudulent misrepresentation or deceit is concerned. In short, it is (on the assumptions I have made) MCB's decision not to tell the facts as they are and to continue to mislead that matters most, not the true facts themselves.
108. On this basis the proper law of the torts alleged will be English law, applying section 11(2)(c) of PILA.
109. Mr Kealey appeared to rely on the fact that, as he submitted, the Excess Reinsurance is governed by Mauritius law, in order to invoke section 12 of PILA. I have held, provisionally, that the proper law of the Excess Reinsurance is English law. But even if I had concluded to the contrary, that would not help him establish that the law applicable to the torts of MCB is Mauritius law. I must confess to finding section 12(1) difficult to apply in relation to all the issues in this case. Section 12(1) appears to say that, if having considered the matter under section 11(2(c) you decide that the most significant elements lead to the proper law of the tort being that of country A, nevertheless, you may consider it more appropriate to conclude that the proper law should be that of country B ("the other country"), bearing in mind the factors set out in section 12(2). But, in this case at least, that involves considering precisely the same elements all over again. In any event, the fact that the fraudulent misrepresentations were made in order to induce the Reinsurers to enter the Excess Reinsurance whose proper law would be that of Mauritius seems to me to have nothing to do with the tort in question. Nor does the fact that the Proposal Form was also used in respect of the direct insurance, which is governed by Mauritius law.
110. The significance of the proper law of the tort being English law

My provisional conclusion that the law applicable to the tort is English law is significant for two reasons: first, as Mr Poisson^[88] and Mr Montocchio^[89] make clear, the Mauritius court would apply French based private international law rules to decide the proper law of the tort alleged. Neither Mr Poisson nor Mr Montocchio gives an opinion on the likely view of the Mauritius courts on the which law it would apply to the alleged torts of MCB. But it seems fair to conclude that there is at least the danger that the Mauritius court would conclude that the proper law of the tort is that of Mauritius. Secondly, it is also clear from the evidence of Mr Poisson and Mr Montocchio that the Mauritius courts will apply, essentially, the French Civil Code to determine all civil claims. Mr Poisson expressly states that the Misrepresentation Act 1967 is irrelevant in Mauritius.^[90] That implies that, even if the proper law of the tort were to be regarded as English law by the Mauritius courts, the English statute would not be applied. Mr Poisson does go on to say that there are remedies in tort under the general principle of "faute", so that remedies for deceit or misrepresentation do exist in Mauritius law. So, if the English proceedings were stayed, the Reinsurers might be able to obtain a remedy against MCB in Mauritius, but there is a danger that the wrong proper law would be applied and I have no evidence of how Mauritius law would consider the tort claim against MCB.

111. The multiplicity of proceedings issue.

Mr Kealey submitted that a very important matter in deciding on the appropriate forum was the fact that two related actions in Mauritius are already proceeding, ie. the Fraud Action and the Mauritius Insurance Action, and in those actions MCB are claimants. He said, correctly, that the Supreme Court of Mauritius is the only forum in which all the disputes between all the parties could be decided together. He observed, correctly in my view, that neither the Fraud Action nor the Mauritius Insurance Action should be brought in England. Mr Kealey pointed out, again correctly in my view, that, in order to recover under the Excess Reinsurance (at least if it is governed by English law), MUA will have to demonstrate (as against the Reinsurers) that it took all available defences open to it in the claim by MCB. Those defences will include both the "coverage" points and the non – disclosure and misrepresentation points. Therefore all the issues raised by the Reinsurers against MUA will have to be raised in MUA's defence against MCB, in particular in relation to the facts concerning the alleged fraudulent misrepresentations. Thus, he submitted, if the Reinsurance Action continues in London (as against MCB), there is a strong danger of two courts reaching inconsistent views on the same facts raised in those proceedings and the Mauritius Insurance Action.

112. Mr Kealey and Mr Malek relied strongly on the general policy of English courts to discourage litigation of the same issues between the same parties in different jurisdictions. They reminded me of the observations of Lords Diplock and Brandon in The Abadin Daver.^[91] However, I must also recall the observation of Bingham LJ in Du Pont v Agnew^[92] that "the general undesirability of such concurrent proceedings is, however, but one consideration to be weighed as part of the overall assessment…The policy of the law must nonetheless be to favour the litigation of issues once only, in the most appropriate forum".
113. What is the relationship between the Reinsurance claim, the Mauritius Insurance Action and the Fraud Action?

The relationship between these claims depends on two factors. First, what factual issues are common to two or more claims; secondly, the law by which the claims have to be considered. Thus, as I have already stated, I accept that, in order that MUA can recover under its Excess Reinsurance, MUA will have to adopt, as against MCB, all the "coverage" and avoidance defences that the Reinsurers have advanced against MUA. Although the "coverage" issues are largely matters of construction, in relation to the non – disclosure and misrepresentation issues, the Reinsurance claim and the Mauritius Insurance Action would have to cover the same factual ground. However, the legal basis on which all these issues are to be decided will depend on the court's decision as to the law applicable to the Excess Reinsurance.^[93] The direct insurances are governed by Mauritius law, which, as I have pointed out, has a very different approach to the right of an insurer to avoid for either non – disclosure or misrepresentation. There may also be differences on issues of construction as between Mauritius and English law.

114. There is no "follow the settlements" clause in the Excess Reinsurance, so that whatever the outcome of the claim between MCB and MUA, it will be for MUA to prove (as against the Reinsurers) that MUA was liable to MCB under the direct policies. If both the Insurance and the Reinsurance claims were to be dealt with in the Mauritius courts, then it appears likely (given the advice of Mr Montocchio) that the Mauritius court would treat the Excess Reinsurance as also being governed by Mauritius law. If so, then the same principles will be applied in relation to the construction issues. Furthermore, the Mauritius law principles relating to the obligations of a Reinsurer to "follow the fortunes" of the reinsured, will be applied. But if the court trying the Excess Reinsurance claim concluded that the reinsurance is governed by English law, then the approach to construction, non – disclosure and misrepresentation in relation to the Excess Reinsurance may be markedly different. Further, if the English reinsurance action continues and holds the Excess Reinsurance is governed by English law and the Defendant in Guarantee proceedings continue in Mauritius and that court holds that the excess reinsurance is governed by Mauritius law, then it is almost certain that there would be inconsistent conclusions on the Excess Reinsurance claim.
115. As between MCB's Fraud Action and the Reinsurers' action against MCB, there will be some overlap of the facts, but I suspect very little. MCB's aim is to recover money which it claims it can trace into the hands of the defendants to that action. It is not directly concerned with whether there were irregularities in the internal dealings of MCB. The danger of inconsistent conclusions here is minimal.
116. Mr Swainston argued that one factor in favour of England as the appropriate forum for the Reinsurers case against MCB was that MCB was pursuing Mr Appasamy in proceedings in this country. This is not a strong factor. The claim is on guarantees. Mr Appasamy has, so far, not raised active defences. On the material I have at present it seems unlikely that there will be any substantial overlap between that action and the Reinsurers' case against MCB.

X The Overall Test: Is England clearly and distinctly the more appropriate forum for the resolution of the Reinsurers' claim against MUA and/or MCB?

117. I must now try and draw up a balance sheet of all the aspects of the case, although for convenience of analysis I will keep the claims of the Reinsurers against MUA and MCB separate.
118. Reinsurers against MUA: the factors in favour of the English forum

These are the following:

(1) There is a good arguable case that the law applicable to the Excess Reinsurance is English law.

(2) The Mauritius Court would not use the Rome Convention to decide upon the applicable law for the Excess Reinsurance. On the evidence of Mr Montocchio there is a danger, at the least, that the Mauritius court would conclude that the proper/applicable law for the Excess Reinsurance is Mauritius law. On the basis of English conflicts of laws rules that would (or may well be) the wrong result.

(3) Because of this danger it is legitimate of the Reinsurers to seek declaratory relief in the English courts as to their non – liability to MUA on the construction and non – disclosure and misrepresentation issues.

(4) The Mauritius courts would apply Mauritius law to issues of construction of the direct insurances and also to issues of avoidance of those insurances because of non – disclosure or misrepresentation, because the direct insurances are undoubtedly governed by Mauritius law. On the evidence of Mr Montocchio there appears to be a danger, at the least, that none of the defences based on the construction of the direct insurances or non – disclosure or misrepresentation would succeed before the Mauritius court.

(5) If the Mauritius court were to hold that MCB succeeded against MUA on the direct insurances, then if the Defendant in Guarantee proceedings of MUA against the Reinsurers continued in Mauritius, on the evidence of Mr Montocchio the Mauritius courts would be likely to hold that: (a) the Excess Reinsurance is governed by Mauritius law; and (b) the Reinsurers must "follow the fortunes" of MUA and therefore would have to pay under the Excess Reinsurance if MCB succeeded against MUA. If this is the approach of the Mauritius court, it gives little or no effect to independent defences that the Reinsurers may have (under English law at least) on construction and non – disclosure and misrepresentation in relation to the Excess Reinsurance. The analysis of the English court (applying English law) would require MUA to prove that it was liable to MCB and would enable the Reinsurers to run any independent defences on construction, non – disclosure and misrepresentation.

(6) There is a powerful case for the three points of construction of the Excess Reinsurance being taken as preliminary issues together with the issue of the proper/applicable law of the Excess Reinsurance. Given my provisional view that the proper/applicable law of the Excess Reinsurance is English law, it is much more appropriate that those should be dealt with by the English court.

119. I regard all these factors as being strongly in favour of England being the forum to try the case between MUA and the Reinsurers.
120. Reinsurers against MUA: the factors against England being the appropriate forum

(1) The centre of gravity for factual matters concerning non – disclosure and misrepresentation is Mauritius. It is unlikely (as I think Mr Swainston conceded) that there would be much argument over reliance by the underwriters in England so that the only likely witnesses from England would be those concerning the placing of the Excess Reinsurance in May/June 2002.

(2) The Mauritius Insurance Action has been begun and MUA is likely to have to raise in that action the defences being run by the Reinsurers against MUA in relation to the Excess Reinsurance. However, it seems to me likely that those defences would have been bound to be run even if the English Reinsurance Action had not been started, but the Reinsurers had simply stated their reasons for rejecting any claim on the Excess Reinsurance by MUA (ie. the construction and non – disclosure and misrepresentation points). As it is, the Defendant in Guarantee proceedings by MUA against the Reinsurers were started in response to the Reinsurers' issue of proceedings against MUA in England.

(3) The MCB Fraud Action will continue in Mauritius. However, this action is completely independent of the insurance/reinsurance actions and its focus on the factual and legal issues is very different.

(4) If the English Reinsurance Action continues and the Mauritius Insurance Action continues together with the Defendant in Guarantee proceedings, there is a danger that the two courts will reach inconsistent conclusions in relation to (a) points of construction of the 72 hour discovery clause; and (b) facts concerning the alleged non – disclosures and misrepresentations. However, this danger may not be a point in favour of Mauritius as the appropriate forum if (a) the proper/applicable law of the Excess Reinsurance is English law; and (b) the Mauritius court would not apply English law to the Excess Reinsurance issues.

121. In relation to the MUA/Reinsurers dispute, in my view the weight of the factors in favour of England as the appropriate forum is far greater than the weight of the factors against. But before making a final decision I must go on to consider the position as between the Reinsurers and MCB.
122. Reinsurers against MCB: the factors in favour of England as the appropriate forum

(1) There is a good arguable case that the proper/applicable law of the torts alleged against MCB is English law.

(2) The Mauritius court would not use the same conflicts of laws rules to decide the proper/applicable law of the torts. Although there is no express evidence on the likely decision of the Mauritius court on the proper/applicable law of the tort if the matter were being litigated there, the tenor of the evidence of Mr Poisson and Mr Montocchio suggests that the conclusion would be Mauritius law.

(3) If the proper/applicable law of the torts is English law, then the English courts would give relief and damages under the Misrepresentation Act 1967. There is a danger that, if the matter were heard in the Mauritius court, there would be no such remedy. Damages for "faute" can be claimed under the principles of the French Civil Code, although it is not clear what those might be.

(4) If the Reinsurance Action continued in the English courts, the same court could deal with the issues of misrepresentation under the same proper/applicable law, ie. English law.

123. Reinsurers against MCB: the factors against England being the appropriate forum

(1) The centre of gravity of the factual investigation in relation to the alleged misrepresentations is Mauritius.

(2) The Mauritius Insurance Action and MCB's Fraud Action are bound to continue in Mauritius. The only court where all the disputes can be tried together is Mauritius.

(3) If the Reinsurers/MCB action continues in England and the Insurance Action continues in Mauritius (in which all the Reinsurers' defence points on misrepresentation have to be raised) there is a danger of inconsistent findings of fact in relation to alleged misrepresentations. However the legal basis on which those findings are made will be different; ie. Mauritius law in the Insurance Action and English law in the Reinsurers/MCB action in England.

124. The Overall Position as between Reinsurers and MCB

If the Reinsurers/MCB action were being considered on its own, then I would conclude that the Reinsurers have satisfied me that England is clearly and distinctly the appropriate forum in which try that matter. The key factor in that decision is the proper/applicable law of the tort. But I think it right to consider the Reinsurer/MCB action in the light of the fact that I have concluded that the Reinsurers have satisfied me that England is clearly the appropriate forum for the Reinsurers/MUA dispute. The fact that it is clearly appropriate for the latter to be heard in England makes it clearly more appropriate to hear the Reinsurers/MCB dispute here as well, because the same factual issues will arise in both cases. In that sense also MCB is, I think, clearly a "necessary and proper party" to these proceedings.

125. Conclusion

Overall I have concluded that England is the forum in which the actions of the Reinsurers against both MUA and MCB can be most suitably tried for the interests of all the parties and the ends of justice.^[94] I recognise that this conclusion means that the general policy of the English courts, to favour litigation once and in the most appropriate forum, cannot be upheld. But, as Bingham LJ stated in Du Pont v Agnew, that is only one consideration to be weighed as part of the overall assessment. In my view it does not add decisive weight against my conclusion in these cases. Therefore I must dismiss the applications of MUA and MCB to stay the English action and set aside the permission to serve the proceedings out of the jurisdiction.

126. I am conscious of the fact that this conclusion rests squarely on my decision that the proper/applicable law of the Excess Reinsurance and the alleged torts is (or may well be) English law and rests on the analysis which results from that decision. If that view is wrong, then the balance alters radically in favour of Mauritius. As I said in the course of argument, it may be sensible for the English court to consider urgently – and first of all - the proper/applicable law points. If, in the end, the appropriate law is Mauritius law, then it seems to me possible that MUA and MCB could re-apply to stay the English actions. I know of no legal reason to prevent such an application at a later stage.

XI The Anti – suit and Anti – anti – suit injunctions/undertakings

127. The injunctions were obtained without notice after Clydes, solicitors for the Reinsurers, had been notified that MUA intended to join the Reinsurers to the Mauritius Insurance Action as Defendants in Guarantee.^[95]
128. The Reinsurers are entitled to an anti – suit injunction if the court is satisfied that the pursuit of the Defendant in Guarantee proceedings in the Mauritius Insurance Action is vexatious and oppressive. The fact that there would be proceedings in two courts, England and Mauritius, is not in itself, evidence of vexation and oppression. But such action may be vexatious and oppressive if (a) England is the "natural forum" for the trial of the dispute; and (b) justice does not require that the party who wishes to pursue the foreign proceedings should be allowed to do so. Moreover the English court must have regard to comity when deciding whether to restrain a party from proceeding in a foreign court. Therefore the English court will be reluctant to take upon itself the task of deciding whether the foreign forum is inappropriate.^[96]
129. I have concluded that England is the more appropriate forum than Mauritius for the Reinsurance Action to be tried. But is the action of MUA in starting the Defendant in Guarantee proceedings "vexatious and oppressive"? I do not regard it as such, in the circumstances in which MUA was already defending the claim by MCB. As the cases emphasise, the fact of two concurrent proceedings relating to the same subject matter is not itself vexatious or oppressive. There is no other evidence on which the Reinsurers can say that the Defendant in Guarantee proceedings are vexatious and oppressive.
130. Therefore, quite apart from the factor of comity, I am satisfied that I was wrong to grant the ex – parte anti – suit and anti – anti – suit injunctions and they and the undertakings that replaced them, must be discharged.

Note 1    Because this type of insurance and the size of the risk was not covered under MUA’s existing insurance treaties, MUA had to obtain 100% facultative reinsurance cover. Its Mauritian brokers, City Brokers Ltd, introduced the London brokers, Butcher, Robinson and Staples International Ltd (BRS) to MUA. BRS proposed the reinsurance package to MUA: Poisson para 11: File 1/Tab 3/page 9.    [Back]

Note 2    File 2/Tab 6/page 165.    [Back]

Note 3    [1987] 1AC 480 at 465G.    [Back]

Note 4    See: File 2/page 65    [Back]

Note 5    Seago (1) par 12: File 6/Tab 4/page 77    [Back]

Note 6    File 1/Tab 5/page 32.    [Back]

Note 7    Gooding para 6: File 1/Tab 5/page 27.    [Back]

Note 8    Seago (2) para 14: File 1/Tab 11/page 187.    [Back]

Note 9    File 1/Tab 14/page 246.    [Back]

Note 10    File 9/page 13.    [Back]

Note 11    File 2/Tab 6/page 168.    [Back]

Note 12    Fraud Action Plaint with Summons para21.2: File 6/Tab 4/page 60    [Back]

Note 13    Ibid. para 21.12.    [Back]

Note 14    File 2/Tab 10/page 188    [Back]

Note 15    Montocchio para 69: File 1/Tab 9/page 113.    [Back]

Note 16    File 4/Tab 9/page 134.    [Back]

Note 17    File 8/Tab 3/page 38.    [Back]

Note 18    Para 26: File 8/Tab 3/page 45.    [Back]

Note 19    Para 29.    [Back]

Note 20    Para 54.    [Back]

Note 21    Para 47 of the draft amended Particulars of Claim: File 8/Tab 3/page 62    [Back]

Note 22    Para 71.    [Back]

Note 23    The test reconfirmed by the House of Lords in Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1AC 438.    [Back]

Note 24    The wording used by Lord Bingham of Cornhill in the latest leading case on enforcement of jurisdiction clauses: Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 at para 24.    [Back]

Note 25    The burden being on the Reinsurers, because proceedings can only be brought by serving them on MUA out of the jurisdiction.    [Back]

Note 26    Spiliada Maritime Corporation v Cansulex [1987] AC 460 at 480 – 481.    [Back]

Note 27    As Longmore LJ points out in O.T Africa Line v Magic Sportswear [2005] 2 Lloyd’s Rep 170 at para 22, now that England is a party to the Rome Convention, it may be that the term “applicable law” rather than “proper law” should be used. But there is no difference in substance and I have continued to use the phrase “proper law”.    [Back]

Note 28    See: Article 2(1)(d): “[The rules of this Convention] shall not apply to: ….(d) arbitration agreements and agreements on the choice of court;”    [Back]

Note 29    For the common law position see: Cie. Tunisienne v Cie d’Armament [1971] AC 572 at 596 per Lord Wilberforce and 604 per Lord Diplock. For the position under the Rome Convention see: Egon Oldendorff v Libera Corp [1996] 1 Lloyd’s Rep 380 at 388 – 390 per Clarke J; Marubeni Corporation v Government of Mongolia [2002] 2 All ER (Comm) 873.     [Back]

Note 30    File 1/TAB 9    [Back]

Note 31    As performed by the House of Lords did in the Tunisienne case.    [Back]

Note 32    As analysed by Clarke J in the Egon Oldendorff case.    [Back]

Note 33    See: Hutton v Mofarrij [1989]1 WLR 488 at 495 per Kerr LJ    [Back]

Note 34    See: S11-127, and fn 23.    [Back]

Note 35    [2000] 2 All ER 566    [Back]

Note 36    See para 40 of the judgment.    [Back]

Note 37    Both the original insured and the insurer/reinsured were Greek companies.     [Back]

Note 38    [2001] 2 Lloyd’s Rep 268.    [Back]

Note 39    See: paras 24 and 27 respectively of the judgment on page 273.    [Back]

Note 40    [2002] 1Lloyd’s Insurance and Reinsurance Reports 480 at 484 – 5.    [Back]

Note 41    The wording is: “To follow all terms and conditions of the primary policy together with riders and amendments applicable thereto covering the identical subject matter and risk”.    [Back]

Note 42    See per Evans LJ at para 40 as quoted in paragraph 49 above.    [Back]

Note 43    B1/Tab 4/para 10 at page 21.    [Back]

Note 44    B2/Tab 2/pages 161 and 162. This was led by Munich Re. It was placed in London and scratched by the underwriter on 17 June 2002: see page 164.    [Back]

Note 45    [2002] 1 Lloyd’s Rep 425 at para 24 and 25 per Lord Bingham of Cornhill.    [Back]

Note 46    As explained by Waller LJ in Canada Trust Co v Stoltzenberg (No 2) [1998] 1 WLR 547 at 555F-G, approved by Lord Steyn in the House of Lords at [2002] 1 AC 1 at page 13H.    [Back]

Note 47    The Spiliada case: at page 481 per Lord Goff of Chieveley.    [Back]

Note 48    See: Dicey & Morris on The Conflict of Laws, 13th Ed. para 32 – 092, page 1229, quoting the Giuliano – Lagarde Report, which the court can consider when ascertaining the meaning of the Rome Convention: s.3(3)(a) of the Contracts (Applicable Law) Act 1990.     [Back]

Note 49    This was done in: Marubeni Hong Kong and South China Ltd v Mongolian Govt [2002] 1 All ER (Comm) 873 at para 42 on page 885, per Aikens J.    [Back]

Note 50    He relied on the evidence of Mr Richard Morris, underwriter of one of the following insurers of the excess reinsurance, Wurtt: B5/Tab 6/para 9 at page 90.    [Back]

Note 51    [1986] 2 Lloyd’s Rep 179 at 196; in the HL reported at [1989] 1AC 852: hereafter “Vesta v Butcher”.    [Back]

Note 52    [1999] Lloyd’s Insurance and Reinsurance Reports 472    [Back]

Note 53    See: page 480, left hand side.    [Back]

Note 54    That is the one that was taken to be a choice of Taiwanese law for the direct insurance contract.    [Back]

Note 55    See: page 480, right hand side to 481 left hand side.    [Back]

Note 56    [1936] P 90, particularly at 104 and 107.    [Back]

Note 57    [1976] 1 Lloyd’s Rep 8, particularly at page 12 per Lord Denning MR, with whom Roskill and Ormrod LJJ agreed on this point.    [Back]

Note 58    See page 12. The Bill of Lading incorporated: “All the terms whatsoever of the said charterparty except for the rate and payment of freight”. But the actual charterparty was not identified in the Bill of Lading. The Court of Appeal held that the terms of the voyage charterparty, and by implication, its proper law, which was English law, were incorporated.    [Back]

Note 59    I cannot accept this argument at all. Vesta v Butcher was cited to the CA in the Gan case and Beldam LJ refers to it extensively. The Njegos had been referred to in both the CA and the HL in Vesta v Butcher: see the speech of Lord Lowry at page 906G-H. Therefore the CA in Gan could not have been ignorant of the principle established by The Njegos.    [Back]

Note 60    The ability to identify easily the characteristic performance of a reinsurance contract means that the first part of paragraph 5 of Article 4 is irrelevant, because that only applies if the characteristic performance of the contract cannot be determined.    [Back]

Note 61    See the Spiliada case at page 481H, per Lord Goff of Chieveley.    [Back]

Note 62    Montocchio para 47: File 1/Tab 9/page 105    [Back]

Note 63    This is also stated by MUA’s witness, Mr Gilbert Poisson: File 1/Tab 3/page 11 para 22.    [Back]

Note 64    See paras 48 – 65: ibid pages 106 – 111.    [Back]

Note 65    See paras 38 – 39.    [Back]

Note 66    Para 40.    [Back]

Note 67    Montocchio para 16. He states that the wording originates from the Code Civil du Quebec.    [Back]

Note 68    Montocchio para 22, referring to Articles 1983 12 and 14 and the case of Bungaroo v The Swan Insurance Co [1995] MR 71; also para 29.    [Back]

Note 69    Montocchio para 29: Code Art. 1983 – 30.    [Back]

Note 70    Montocchio para 33.    [Back]

Note 71    Montocchio para 34.    [Back]

Note 72    Montocchio para 67.    [Back]

Note 73    Compare the approach of Longmore J in Tiernan v The Magen Insurance Co Ltd [2000] IL Pr 517 at paras 18 and 19.    [Back]

Note 74    [1986 2 Lloyd’s Rep 179 at 193.    [Back]

Note 75    Lord Bridge associated himself with Lord Griffiths’ views regarding the relationship normally to be found between insurance and reinsurance and the obscurity of the then standard form of Reinsurance on the London Market: page 890D.    [Back]

Note 76    See page 911 at C.    [Back]

Note 77    See page 911 at E/F.    [Back]

Note 78    See page 911 at E.    [Back]

Note 79    That is: (i) the losses claimed are not “physical loss and damage”, but a fraud claim, represented by cheques drawn on and paid from MCB accounts over an 11 year period; (ii) None of the many losses occurred in the 72 hours prior to the fraud’s discovery in February 2003; (iii) the Premises and Transit cover in the excess reinsurance that is the subject of the English proceedings is excess of MuR 50 million any one loss. Only one cheque is greater than that figure and that loss was outside the 72 hour period.    [Back]

Note 80    [1999] 1 Lloyd’s Insurance and Reinsurance 58, particularly per Phillips LJ at page 64.    [Back]

Note 81    File 1/Tab 9/page 114 para 71    [Back]

Note 82    I am very far from being convinced that evidence of “London Market understanding” could be adduced in evidence if the construction issue is to be determined by English law. “Understandings” in the London Market are notoriously varied and are not the same as a trade custom, which must be reasonable, certain, universally acquiesced in and not contrary to law or the express terms of the contract.    [Back]

Note 83    Andrewartha (1), paras 73 – 76: File 5/Tab 3/pages 34 – 5.    [Back]

Note 84    Ibid: para 77.    [Back]

Note 85    Spiliada: page 485B.    [Back]

Note 86    In this regard, Mr Kealey relied on three pre – PILA cases, all of which were dealing with leave to serve out of the jurisdiction in cases of alleged torts: Cordova Land Co Ltd v Victor Brothers Inc [1966] 1 WLR 793 at 800 – 810 per Winn J; Diamond v Bank of London & Montreal [1979] QB 333 at 348 – 9 per Stephenson LJ; Metall under Rohstoff AG v Donaldson Jufkin & Jenrette Inc [1990] 1 QB 391 at 442 E – F, per Slade LJ. Although helpful in analysing the elements of the tort of deceit or fraudulent misrepresentation, I do not find them helpful in deciding the proper law of the tort using the principles set out in PILA.     [Back]

Note 87    [2004] 1 Lloyd’s Rep 702 in particular at para 16.    [Back]

Note 88    File 1/Tab 3/page 12 para 23    [Back]

Note 89    Montocchio para 47.    [Back]

Note 90    Poisson para 23.    [Back]

Note 91    [1984] AC 398 at 412D, per Lord Diplock ( “a recipe for confusion and injustice”), at 423G per Lord Brandon (“one or other of two undesirable consequences may follow…two conflicting judgments…or an ugly rush to get one action decided ahead of the other…”).    [Back]

Note 92    [1987] 2 Lloyd’s Rep 585 at 589.    [Back]

Note 93    Mr Swainston accepted, in argument, that if the excess reinsurance is governed by Mauritius law, then the law governing non – dlsclosure and misrepresentation would be governed by that law as well.    [Back]

Note 94    Spiliada at page 480G per Lord Goff of Chieveley.    [Back]

Note 95    Letter from Guy Rivalland to Clyde & Co 11 February 2005: File 2/Tab 13/page 246.    [Back]

Note 96    See the summary of principles set out in the judgment of Evans Lombe J in Royal Bank of Canda v Centrale Raiffnssen – Boerenleenbank BA [2004] 1 Lloyd’s Rep 471 at 474 – 5; Mance LJ at page 479 – 480.    [Back]