English claimants injured overseas - rights to bring proceedings in home courts against foreign insurers

14 August 2009

In Jones v AGF SA (Mayor’s & City of London Court, 31 July 2009) His Honour Judge Birtles provided valuable clarification of the rights of English claimants injured overseas to bring proceedings in their home courts against the foreign insurers of the alleged tortfeasor. In a novel attempt to circumvent the well known decision of the European Court of Justice in FBTO Schadeverzekeringen NV v Jack Odenbreit (Case C/463/06 13 December 2007) the French insurers challenged the jurisdiction of the English court to hear Miss Jones’s claim on the basis that Odenbreit required a claimant to establish that the direct right of action against defendant insurers existed by the law of the forum, rather than by the law applicable to the claim. It was their contention that this was what was meant by the reference to ‘national law’ in paragraph 30 of Odenbreit. Since English law, namely the European Communities (Rights against Insurers) Regulations 2002, only provides for direct actions in respect of accidents in England, it was submitted that the English court did not have jurisdiction under the Judgments Regulation (Council Regulation 44/2001). HHJ Birtles dismissed the application. AGF’s application confused issues of jurisdiction and choice of law. Odenbreit made it plain that the direct right of action had to be established by the law applicable to the claim. Since there was no dispute that French law provided for Miss Jones to sue AGF directly, she was entitled to bring that claim pursuant to Articles 9(1)(b) and 11(2) in an English court. Miss Jones (who was represented by Katherine Deal instructed by Irwin Mitchell) was awarded her costs on the indemnity basis to reflect the application’s lack of merits.