TATLA Newsletter: February 2022

From Keefe to Tattersall and section 3 of Brussels I recast: expansion and contraction in “matters relating to insurance“

Introduction

1. Prior to 13 December 2007 an English solicitor seeking compensation for an English client injured elsewhere in the European Union would have advised that client to pick up the ‘phone to a personal injury lawyer in France, Spain, Italy, Greece etc. A claim against the tortfeasor domiciled outside England would have run into the jurisdictional sand of Article 2 of Regulation No 44/2001, the special jurisdictional rules for tort/delict claims would not have assisted for a harmful/tortious event outside England and a claim against the tortfeasor’s insurer would also have faced an insurmountable jurisdictional obstacle. While attempts had been made to expand the jurisdictional reach of the English Courts (at least as to a claim against a tortfeasor’s insurer) in cases like Pimblett Kevil v Clelland & Ethinki Insurance SA [2005] (QB) and Patterson v Carden [2000] (QB), such attempts had consistently failed. Then (specifically, on 13 December 2007 when judgment was handed down), FBTO Schadeverzekeringen NV v Jack Odenbreit [2007] Case C 463/06 happened. In certain circumstances, it became possible for an English Claimant to sue a tortfeasor’s insurer in the courts of his (the injured party’s) domicile: that is, in England. This became possible not because section 3 of Regulation No 44/2001 (now, section 3 of recast Brussels I Regulation No 1215/2012) said so in terms (if that had been the case, then decisions like Pimblett Kevil would have gone the Claimant’s way). Instead, this jurisdictional possibility became a reality because the Court of Justice of the European Union told us so: a “teleological” interpretation of the legislation permitted a Claimant-friendly result in which the jurisdictional boundaries of section 3 of the Regulation were expanded. As we shall see, the expansionist approach of the Court of Justice was also adopted by the Court of Appeal in England before – in a neat piece of chronological symmetry – another December judgment of the Court of Justice slammed shut the jurisdictional door.

Read the February 2022 TATLA Newsletter in full here.