LACKEY V MALLORCA MEGA RESORTS SL AND ANOTHER

[2019] EWHC 1028 (QB), Queen's Bench Division, Master Davison, 30 April 2019

Insurance (liability) - Claimant injured hotel in Spain - Whether claimant could sue insurers in England - Whether hotel could be joined to English proceedings - Insurance jurisdiction rules - Whether victim contracted as consumer - Brussels Regulation Recast, (EU) No 1215/2012, articles 13, 17 and 18

BL was one of a party of 22 friends who went on holiday to a hotel in Mallorca. The holiday was booked by DB, one of the friends. BL sustained an accident in the pool on 5 May 2017 when the wave machine was activated: she was upended and landed on her neck, causing her serious spinal injuries and rendering her tetraplegic. Her losses were claimed to be some £9 million. She commenced proceedings against the hotel's liability insurers in England, in pursuance of a direct right of action conferred by Spanish law. The amount of the claim greatly exceeded the cover under the policy, and the question was whether the hotel could be joined to the English proceedings against the insurers under the Brussels Regulation Recast. Article 13 of the Regulation provided that: (1) the insurer may, if the law of the court permits it, be joined in proceedings which the injured party has brought against the assured; (2) the principle in article 11 that an insurer may be sued in the courts of the member state where the claimant is domiciled applies to direct actions against the insurer where they are permitted; and (3) if the law governing such direct actions provides that the assured may be joined as a party to the action, the same court shall have jurisdiction over them.