XL INSURANCE COMPANY SE V AXA CORPORATE SOLUTIONS ASSURANCE

[2015] EWHC 3431 (Comm), Queen's Bench Division, Commercial Court, His Honour Judge Waksman QC, 27 November 2015

Insurance (liability) - Conflict of laws - Jurisdiction of the English courts - Claim for contribution - Whether claim a was a matter relating to a contract - Whether the claim was a matter relating to a tort - Brussels Regulation Recast, article 7

On 12 September 2008 in California, there was a collision between a freight train and a passenger train operated by a Delaware company, Connex, on behalf of Metrolink. 24 people died and many more were injured. Proceedings on behalf of the victims were commenced in California against Metrolink and Connex. XL insured Metrolink under three liability policies in 2008, and Connex was an insured party. AXA insured the Veolia group to which Connex belonged. A Federal Interpleader Fund of US$200 million was established, for distribution to victims. Metrolink's insurers paid US$146 millon into the Fund, of which US$65 million came from XL. AXA refused to pay on the basis of policy wording under which AXA was relieved from liability where the amount of indemnity due from local insurers exhausted the total liability, here US$200 million. XL claimed that there was double insurance, and sought contribution from AXA. Proceedings were commenced in England. AXA claimed that as a French company it could be sued only in France under article 2 of the Brussels Regulation Recast, European Parliament and Council Regulation 1215/2012. AXA claimed that the action was a matter related to a contract within article 7(1), but that the English courts had no jurisdiction because the place of performance of the "obligation in question" was not England. XL argued that the claim was not within article 7(1), but rather was a claim in tort under article 7(2) and the place where the harmful event occurred was England so that there was jurisdiction under that provision. Alternatively, if the claim was within article 7(1), the place of performance of the obligation in question was England.