HUTCHINSON V MAPFRE ESPANA COMPANIA DE SEGUROS Y REASEGUROS SA AND ANOTHER

[2020] EWHC 178 (QB), Queen’s Bench Division, Mrs Justice Andrews DBE, 4 February 2020

Jurisdiction – Direct claim against liability insurer – Consumer jurisdiction against defendant marketing in consumer’s jurisdiction of domicile where the purchase had been made in the defendant’s domicile – Insurance contract clause ostensibly defining the risk but operating with the effect of a jurisdiction clause –Brussels I Regulation Recast 1215/2012

The claimant, H, had been seriously injured in a pool at an entertainment venue in Ibiza which was owned by the second defendant, IM. He sought damages in contract and tort and for breach of statutory duty. The first defendant was the liability insurer of IM and was sued in England in accordance with a Spanish direct-action statute. Both defendants challenged the court’s jurisdiction. The venue was promoted on social media with a view to attracting customers from the UK, and H had seen those social media posts, but had purchased his ticket locally in Ibiza. The liability insurer pointed in support of its challenge to a “Territorial scope” clause in its policy that provided that the insurer would only be liable for claims submitted within the Spanish jurisdiction. The liability insurer said that this defined or delimited the risk under the policy while the claimant argued that it restricted the rights of the insured after a risk had materialised.