Insurance Law Monthly

In Greene Wood McLean LLP v Templeton Insurance Ltd (No 2) [2010] EWHC 2679 (Comm) Cooke J explored the relationship between after the event insurers and the solicitors appointed by the assured to bring the claim which is funded by the insurers. In outline, Cooke J held that: (a) ATE insurers are required to indemnify the solicitors if they are obliged to pay the assured’s costs when the ATE insurers have wrongfully refused to do so; and (b) the solicitors do not owe any duty of care to the insurers.

The compulsory motor insurance regime within the European Union ensures that the victim of a road traffic accident anywhere in the EU can bring a claim against the negligent driver’s motor insurers in the courts of the member state in which the victim is domiciled. As an alternative, the victim is entitled under EU rules to bring an action against the Motor Insurers’ Bureau established in the member state of the victim’s domicile. That right is extended to the situation in which the driver is uninsured or unidentified. The question in Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208 was whether the damages awardable to the victim by the MIB in a case involving an uninsured driver were to be assessed by the law of the country of his domicile or by the law of the country in which the accident occurred.

Where the parties have agreed to subject their contract to English law, and an issue as to whether the English courts should assert jurisdiction over any dispute arises, the fact that English law is the applicable law will generally make it appropriate for the English courts to hear the action. However, that is not an absolute rule, and there may be cases in which the dispute is factual and the relevant evidence is outside England. In such a situation, as long as the English court is satisfied that English law will be applied by the foreign court seised of the action, there is no particular basis for an assertion of jurisdiction by the English court. Such a case was Mujur Bakat Sdn Bhd and Anr v Uni Asia General Insurance Berhad and Ors [2011] EWHC 643 (Comm).

In Masefield AG v Amlin Corporate Member Ltd [2011] EWCA Civ 24, the Court of Appeal was asked to overturn David Steel J’s conclusion that the detention of goods by pirates had not amounted to actual total loss. The decision is discussed by David Turner QC of 4 New Square.

There is no modern authority on the effect of an external event, such as war, on a contract of insurance made between an English insurer and a policyholder who has subsequently become an enemy alien, although there is a body of early marine authority relating to various events such as the Napoleonic wars. It is likely that such a contract is rendered illegal and that no future performance is possible. In Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Ltd [2010] EWHC 2661 (Comm) the question was rather a narrower one, of whether Government regulations restricting dealing with particular bodies other than for limited purposes operated to render illegal, or to frustrate, a P&I Club insurance. The outcome turned on the proper construction of the regulations.