QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
Markel Capital Limited |
Claimant |
|
- and - |
||
(1) Gothaer Allgemeine Versicherung AG |
Defendants |
|
Continentale Sachversicherung AG and Bloemers & Partners Limited |
Part 20 Defendant |
____________________
Andrew Neish (instructed by Clyde & Co LLP) for the Defendants
Fiona Sinclair (instructed by Mills & Reeve LLP) for the Part 20 Defendant
Hearing date: 9 October 2008
____________________
Crown Copyright ©
Mr Justice Andrew Smith :
i) the reinsurance contract provided in a Claims Co-operation Clause ("CCC") that it was a condition precedent to any liability under it that if the Reinsureds knew of any circumstances which may give rise to a claim against them, they should advise Markel within 30 days;ii) on 28 October 2008 VOV GmbH ("VOV") learned of such circumstances about the Box Clever claim;
iii) the knowledge of VOV amounted to knowledge of the Reinsureds for the purposes of the condition precedent; and
iv) the Reinsureds did not advise Markel of the circumstances until 2 December 2004.
The only live issues concern stages i) and iii).
"Notwithstanding anything contained in the Reinsurance Agreement and/or Policy wording to the contrary, it is a condition precedent to any liability under the policy that-
(a) the Reinsured shall upon knowledge of any circumstance which may give rise to a claim against them, advise the Reinsurers immediately, and in any event no later than 30 days;
(b) The Reinsured shall co-operate with the Reinsurers and/or their appointed representatives in the investigation and assessment of any loss and/or circumstances giving rise to the loss;
(c) No settlement and/or compromise shall be made or liability admitted without prior approval of the Reinsurers."
Agreement of the Claims Co-operation Clause
Did the knowledge of VOV trigger the condition precedent?
"Is the definition of the Reinsured … an agreement between the Claimant and the Defendants that VOV would act as the Defendants' agent for all purposes in connection with and relating to the Reinsurance?
Alternatively …, did VOV when receiving and giving notice of the Box Clever claim have ostensible authority to act as the Defendants' agent for that and all purposes in connection with and relating to the Reinsurance by reason of the definition of the Reinsured in the Reinsurance?"
Conclusion