Jurisdiction

In Thwaites v Aviva Assurances, a decision of the Mayors and City of London Court in February 2010, the issue was whether a direct action could be brought in England against the liability insurers of a French organisation which had allegedly committed a tort against the claimant in France. English law did not permit such an action, but the court’s ruling was that the law applicable to determining the existence or otherwise of a direct action was the law applicable to the policy, which in the present case was French law: because French law permitted such an action, it could go ahead in England.

Thwaites: the facts

On 12 August 2008 the claimant, who was domiciled in England, along with his family visited the Camors Adventure Forest in Camors, France. He suffered serious leg injuries while he was descending on a wire slide. The defendants were the liability insurers of the Forest, under a policy governed by French law. The claimant commenced proceedings against the insurers in England. It was not disputed that under French law the claimant had a direct action against the insurers. It was also common ground that English law did not permit a direct action in such circumstances: English law allows a direct action against liability insurers only in motor cases, or where the assured has become insolvent. The issue was whether the English court possessed jurisdiction to hear the action or whether proceedings had to be brought in a French court of competent jurisdiction.