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You are here: BAILII >> Databases >> The Law Commission >> Third Parties –Rights Against Insurers [2001] EWLC 272(8) (July 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/272(8).html Cite as: [2001] EWLC 272(8) |
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PART 8
CASES WITH A FOREIGN ELEMENT
1 Introduction
8.2 The consultation paper discussed the issue of how a new Act should apply in cases with a foreign element: for example, where one of the parties is domiciled abroad, or the insurable event occurred abroad, or the insurance policy is governed by foreign law. The 1930 Act is silent as to its applicability in such cases and there is little authority on the point.[1]
8.3 The draft Bill seeks to resolve this uncertainty. It provides that its applicability does not depend on the existence of any "connection" with England and Wales or Scotland, except as expressly provided.[2] Thus, the only necessary connection is that provided by clause 1 itself, which defines the events or situations in which a transfer takes place, all of which arise under English or Scots law.[3]
2 Applicability
3 Consultation
8.5 In the consultation paper we asked whether a new Act should clarify when it applies in cases with a foreign element.[4] A substantial majority of those who responded agreed that it should.
8.6 We also asked what criterion should be used in the new Act to determine whether it applied. We gave the following options:[5]
(1) the insured has been declared bankrupt or wound up in this country;
(2) the insurance proceeds are payable in this country;
(3) the law governing the insurance contract is English or Scots law;
(4) the courts have jurisdiction in respect of the tort or delict or breach of contract committed by the insured;
(5) the insurer is subject to the jurisdiction of a court in the United Kingdom.
8.8 We also asked whether the rule chosen for determining applicability of a new Act should always override a conflicting contractual provision in the insurance contract.[6] A majority of those who responded thought that it should.
4 Reform proposals
8.9 We agree with consultees that a new Act should clarify when it applies in cases with a foreign element. In our view this is particularly important in the light of the recent increase in both cross-border insurance[7] and merger activity in the insurance market.[8]
8.10 We also agree with the view of the majority of consultees who thought that a new Act should apply if the insured has been made bankrupt or wound up in England and Wales or Scotland.[9] This seems to us the most appropriate option since it is consistent with the principal aim of the draft Bill, namely to provide a remedy to third parties who would otherwise suffer from the domestic insolvency regime. In addition, in England and Wales, it will make the draft Bill widely applicable, given the wide discretion of the courts to grant winding-up orders against foreign insureds.[10] The Scottish courts have no power to grant winding-up orders against foreign insureds.[11]
8.11 Although we did not specifically consult on how the draft Bill should apply when a statutory transfer occurs without a bankruptcy or winding-up,[12] the same principle should in our view apply. In the draft Bill, this result is achieved by a provision making clear that the only criteria for application of the draft Bill are those contained in clause 1 itself, regardless of any other connection of the parties, or the liability, with England and Wales or Scotland.[13]
8.12 Finally, we also recommend that a provision in the insurance contract disapplying the law of England and Wales, or Scotland (either in respect of the whole contract or a part of it), should be disregarded for the purposes of determining whether the draft Bill applies (though not for any other purpose).[14] We did not think it right that an insurer and insured, who choose that their insurance contract should be governed by foreign law, should thereby disapply the new Act and nullify its important effects on the rights of the third party during a domestic insolvency.[15]
5 UNCITRAL model law on cross-border insolvency
to assist states to equip their insolvency laws with a modern, harmonised and fair framework to address more effectively instances of cross-border insolvency. Those instances include cases where the insolvent debtor has assets in more than one State or where some of the creditors of the debtor are not from the State where the insolvency proceeding is taking place.[16]
(1) prevent a statutory transfer under the draft Bill; or
(2) prevent a third party from using transferred rights.
8.16 In the vast majority of cases in which an insured is subject to a foreign winding-up the model law will have neither of these effects. Particularly important is the provision which preserves the right of a third party to commence a domestic winding-up even if one has already been started abroad.[17]
8.17 However, the model law provides for certain "mandatory effects" which come into force once foreign insolvency proceedings are recognised as "main proceedings"[18] in the enacting country. If such recognition were to occur before a transfer of rights under the draft Bill then it is possible that the third party's rights would be compromised in both of the ways listed above as follows:
(1) the suspension of the right to "transfer, encumber or otherwise dispose of any assets of the debtor"[19] might prevent a transfer of rights under the draft Bill (for example it might prevent a voluntary arrangement or the crystallisation of a floating charge);
(2) the prohibition on "commencement or continuation of individual actions ... concerning the debtor's ... liabilities" [20] might prevent a third party from proving the insured's liability in his action against the insurer.
8.18 In our view these effects of the model law should be avoided. In other words, a third party should not be deprived of the benefits which the draft Bill would otherwise give him, simply because the insured is subject to a foreign winding-up procedure. We therefore recommend that, if the model law is enacted, claims by third parties under rights transferred by the draft Bill are specifically excluded from the operation of the above provisions.[21]
6 Jurisdiction
8.19 In the consultation paper we discussed the relevant rules governing the jurisdiction of the domestic courts[22] and asked for views on whether the existing rules were broad enough to found jurisdiction under a revised Act.[23] As we explained, the answer to this question, in both England and Wales, and Scotland, was affected by an unresolved issue as to whether the Brussels Convention[24] applied to proceedings under the 1930 Act, or was excluded by the "bankruptcy exception".[25] The Council of the European Union has recently adopted a Regulation[26] (the "new EC Regulation") revising the Brussels Convention, with effect from 1st March 2002.[27] It is also necessary to consider the special rules for allocating jurisdiction between England and Wales on the one hand, and Scotland on the other.[28]
8.20 To the extent that the Brussels Convention does not apply, jurisdiction of the English courts will depend on the application of the rules for service out of the jurisdiction.[29] We recommend an amendment to clarify the application of the rules to cases under the draft Bill. We make no parallel recommendation for Scotland where there is no procedure corresponding to service out of the jurisdiction.
7 Application of Brussels Convention
bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings (the "bankruptcy exception") [30]
8.22 As we have explained, the issue as to whether proceedings under the 1930 Act fall within the bankruptcy exception has not to our knowledge come before the courts.[31] Our considered view is that proceedings under the 1930 Act fall outside the exception. Although the events listed in section 1 which may bring about a statutory transfer are related to the statutory insolvency regime, the purpose of the 1930 Act is to take proceedings to which they apply outside the insolvency regime altogether. Thus the proceedings themselves are not bankruptcy proceedings and do not "relate" in any direct way to the insolvency regime.[32] We proceed therefore on the basis that the Brussels Convention does apply to proceedings under the 1930 Act.[33]
8.23 Under the Brussels Convention there is a special section dealing with "matters relating to insurance".[34] In respect of liability insurance, the effect appears to be that a third party to whom rights are transferred under the 1930 Act may sue the insurer in the courts of the domicile of the insurer or of the insured; or in the courts of the place where the harmful event occurred;[35] but not in the courts of the third party's own domicile (unless, of course, one of the other conditions is fulfilled).[36] Since these rules are not susceptible to amendment by United Kingdom legislation, the draft Bill does not alter the position.
8 Different parts of the United Kingdom
8.24 There are separate rules under domestic legislation for allocating jurisdiction as between different parts of the United Kingdom, where the subject-matter is within the scope of the Brussels Convention, and the defendant or defender is domiciled in the United Kingdom.[37] In such cases the Brussels Convention takes effect in the modified form set out in Schedule 4 to the 1982 Act. The special section of the Brussels Convention (section 3) relating to insurance matters does not apply. Allocation of jurisdiction therefore depends on whether the proceedings fall within any of the rules specified in the Schedule. Since this issue is governed by domestic legislation, it is open for consideration whether express provision should be made to resolve any uncertainty in the application of these rules to cases under the draft Bill.
8.25 Although we did not discuss this issue in the consultation paper, we referred to a Scottish case, Davenport v Corinthian Motor Policies at Lloyd's,[38] which illustrates the problem in an analogous context. That case concerned an action for damages brought by a lady injured by a car in a traffic accident. Having obtained judgment against the driver, she failed to obtain payment. She then attempted to raise an action in Glasgow Sheriff Court against the English insurer under RTA 1988, section 151.[39] It was argued that Scottish courts did not have jurisdiction. This contention was upheld by the Court of Session. For the purposes of Schedule 4, the claim against the insurance company could not be characterised as delictual. It was a separate statutory right. Accordingly, the only relevant jurisdictional basis of the action in Schedule 4 was Article 2,[40] the domicile of the defender namely England. Therefore the claim had to be brought in the English and not the Scottish courts.
8.26 Before considering the position of a third party under the 1930 Act or draft Bill, it is necessary to consider how these special rules apply to the insured, whose rights are to be transferred. The two categories in Article 5 of Schedule 4, which might be considered relevant, are (1) "matters relating to a contract", and (3) "matters relating to tort, delict or quasi-delict". In the former case, the action is to be brought in "the courts for the place of performance of the obligation in question"; in the latter, "in the courts for the place where the harmful event occurred or ... is likely to occur." [41] If neither applies, allocation is governed by the default rule under Article 2.[42]
8.27 It seems clear that the insured's own right of action against the insurers, as one founded directly on the contract of insurance, falls within article 5(1).[43] As between England and Scotland, jurisdiction is therefore determined by "the place of performance...". Under English and Scots law, the normal rule, governing the "place of performance", in the case of an obligation to pay money,[44] is that the debtor must "seek the creditor in order to pay him at his place of business or residence".[45] Thus in Davenport, for example, the Scottish insured would have been able to sue the English insurer in Scotland.
8.28 The position in respect of rights transferred under the 1930 Act or the draft Bill is less clear. In the Davenport case, the Court of Session, following decisions of the European Court of Justice,[46] held that the categories in Article 5 were to be interpreted restrictively. It rejected a contention that the proceedings "related to delict", because of the link between the pursuer's original delictual claim and her cause of action against the insured; instead, the latter claim was "based upon the statutory provision and upon nothing else".[47] Article 5 did not apply and the action against the insurer had to be brought under Article 2.
8.30 The question arises whether, as part of the present project, we should recommend any change to this position. It is not part of our terms of reference to review the application of Schedule 4 to insurance contracts generally. In particular, it is not our function to examine the policy reasons for excluding the special insurance section of the Brussels Convention in relation to issues of jurisdiction as between different parts of the United Kingdom.[48]
8.31 On the other hand, there seems no reason to perpetuate any uncertainty in the application of these rules to proceedings by third parties under the draft Bill, in so far as it lies within the power of the United Kingdom legislature to remove it. Further, we see no reason why, as between different parts of the United Kingdom, there should be any restriction on the right of the third party to bring proceedings in the courts with which he has the closest connection. There seems no policy justification for reproducing the result of the Davenport case in the draft Bill. The simplest and clearest way to avoid uncertainty is to provide specifically that the third party (in addition to any rights under Schedule 4) may bring the action in the courts of his domicile (regardless of any specific provision in the insurance contract). The draft Bill so provides.[49]
9 Claims not governed by the Brussels Convention
10 England and Wales
8.32 To the extent that the Brussels Convention does not apply,[50] jurisdiction in England and Wales will depend on the common law rules, and the rules relating to service out of the jurisdiction.[51]
8.33 Consultees were asked[52] whether the rules of court then in force were already broad enough to allow service out of the jurisdiction under an amended Act, and if not, whether express provision should be made. A majority of consultees[53] favoured express provision. The consensus was that, in claims under the new Act to which the Brussels (and Lugano) Conventions do not apply, the English and Welsh courts should be able to exercise jurisdiction over insurers located abroad.
8.34 In our view, the rules relating to service should ensure that a third party with rights under the new Act is able to enforce those rights effectively in the courts of England and Wales. We agree with consultees that the procedural rules (now CPR 6.20) will not always be broad enough to allow service out of the jurisdiction.[54]
8.35 Consequently we recommend that grounds for service out of the jurisdiction with the permission of the court (under CPR 6.20), be amended by the addition of a new category expressly related to the jurisdiction of the court under the amended Act. The court will retain its discretion to refuse permission in appropriate cases.[55]
11 Scotland
12 Jurisdiction in arbitration
8.38 The insurance contract may contain an agreement to foreign arbitration.[56] In England and Wales, one of the aims of the Arbitration Act 1996 was to limit the ability of parties to go to court when they had expressly agreed that certain matters should be resolved by arbitration, and where they had provided how and where that arbitration should proceed. Under section 9(4) of the 1996 Act,[57] the court must grant a stay to a party to an arbitration agreement against whom court proceedings are brought, unless that agreement is null and void, inoperative or incapable of being performed. Similarly, in Scotland, an arbitration clause suspends the jurisdiction of the courts and commits the parties to arbitrate the dispute.[58] The draft Bill does not alter this position.
13 Jurisdiction clauses
8.39 It has become common in insurance contracts for the insurer and insured to agree that the courts of a particular country should have exclusive jurisdiction to hear disputes in relation to the contract. Courts in the United Kingdom will typically uphold such clauses.[59] As a general rule, the third party, to whom the rights of the insured are transferred, will be subject to the same constraint. We have recommended one exception to this principle, in relation to inter-jurisdictional issues within the United Kingdom, to allow a Scottish third party to sue an English insurer in Scotland (and vice versa).[60]
14 Summary of recommendations
8.40 To summarise the position under the draft Bill and our proposed amendment of the rules of court:
(1) A third party will receive a statutory transfer if the insured is wound up, or becomes subject to one of the other procedures specified in clause 1.[61] All of these procedures are governed by (and are part of) the law of England and Wales or Scotland. No other connection is required. If and when the UNCITRAL model law on cross-border insolvency is brought into force, we recommend that claims by third parties under the draft Bill should be excluded from provisions which would have a contrary effect.
(2) Where the Brussels Convention (or, when it comes into force, the new EC Regulation) applies, a third party will be able to bring proceedings in a court in England and Wales, or in Scotland, if that is where the insured or insurer is domiciled, or that is where the event giving rise to the liability of the insured occurred. Our proposals will not alter this position.
(3) A third party domiciled in England and Wales, or in Scotland, faced with an insurer elsewhere in the United Kingdom, will be able to sue in the courts of his own domicile. The third party's right to do so will not be affected by an exclusive jurisdiction clause in the contract of insurance.
(4) To the extent that the Brussels Convention does not apply, or does not allocate jurisdiction, then, in England and Wales, a third party will be able to apply to the court, under an amended CPR 6.20, for permission to serve out of the jurisdiction. In Scotland, where there is no equivalent to the provisions for service out, no change is proposed.
(5) The third party's right to bring proceedings in a court in Great Britain will, as at present, be subject to any valid arbitration agreement in the insurance contract, even if that arbitration agreement provides for a foreign arbitration.
Note 1 Consultation paper, paras 8.4-8.5. The only relevant English authority on the issue, The Irish Rowan [1991] 2 QB 206, is inconclusive. Staughton LJ suggested a number of alternatives without deciding the matter. [Back] Note 2 Clause 17. In particular, applicability does not depend on where the liability was incurred, the domicile of the parties, the law of the contract of insurance, or the place of payment under the contract: ibid (a)-(d). [Back] Note 3 We draw attention to the likely impact of the UNCITRAL model law on cross-border insolvency, when it is brought into force in this country, and make a recommendation for a derogation to protect the position under the draft Bill: see para 8.18 below. [Back] Note 4 Consultation paper, para 16.2. [Back] Note 5 Consultation paper, para 16.16. [Back] Note 6 Consultation paper, para 16.16. [Back] Note 7 Two recent international agreements may promote this trend: (1) In March 1999 the General Agreement on Trade in Services (“GATS”), concluded by the World Trade Organisation (“WTO”) between nearly 100 countries, came into effect. Its aim is to dismantle cross-border barriers to trade in financial services, including insurance; (2) The EU Convention on Insolvency Proceedings (mentioned in the consultation paper, para 16.2, n 2) will now come into force as EC Regulation No 1346/2000 on 31 May 2002. [Back] Note 8 For example, the acquisition by Denmark’s Tryg-Baltica Insurance Company of Colonia Baltica Insurance Ltd, a subsidiary of AXA Colonia, an English company (Lloyd’s List Insurance Day, 19.11.99). These trends have been confirmed by the ABI in their annual publication “Insurance Facts, Figures and Trends” published in November 1999. [Back] Note 9 As we have explained, the draft Bill does not extend to Northern Ireland but, should the draft Bill be enacted, parallel legislation there is likely. See para 2.52 above. If this does occur, the two new Acts would apply in all cases in which the insured was made bankrupt or wound up anywhere in the UK. [Back] Note 10 A winding-up order may be granted if the company has some assets within the jurisdiction, including a possible right of action under the Act: Re Compania Merabello San Nicholas SA [1973] Ch 75. The court may in some circumstances wind up a foreign company without any assets in this jurisdiction, though it will only do so if inter alia there is a “sufficient connection” with England and Wales (Re Latreefers Inc, Stocznia Gdanska SA v Latreefers Inc [1999] 1 BCLC 271, upheld on appeal in the CA, Independent 15.2.00). The court is less likely to grant a bankruptcy order: a petition may not be granted unless the debtor has or had some more permanent link with the jurisdiction. The power of the courts to make winding-up and bankruptcy orders will, however, be restricted when the European Union Insolvency Convention comes into force as a Regulation on 31 May 2002 (see para 8.9, n 7 above). The Regulation will allocate jurisdiction to a particular Member State in insolvency proceedings and will restrict the right of courts in other Member States to conduct parallel proceedings. The Regulation provides for recognition of foreign proceedings in other Member States (Article 17). Recognition reproduces the effect of the foreign judgment in the recognising State. However, recognition will not cause a transfer of rights under either the 1930 Act or the new Act. The power of the courts in this area may be further restricted when the UNCITRAL Model Law on Cross-Border Insolvency comes into force (see paras 8.13-8.18 below). [Back] Note 11 The court’s jurisdiction in relation to insolvency and bankruptcy is restricted to the statutory criteria viz IA 1986, ss 120 and 221 (insolvency); Bankruptcy (Scotland) Act 1985, s 9 (sequestration). [Back] Note 12 See paras 2.7-2.8 above. [Back] Note 15 An insurer would typically be in a position to dictate such a term; and the insured would have no interest in opposing it. We recognise that currently, in practice, it is more common for insurers to contract into than out of English and Scots law; but they do so for reasons unconnected with the 1930 Act. [Back] Note 16 Wording taken from: UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment (1997) UNCITRAL, Part 2, I (available at http://www.uncitral.org). [Back] Note 18 Under Article 17(1). [Back] Note 19 Article 20(1)(c). [Back] Note 20 Article 20(1)(a). [Back] Note 21 Article 20(2) provides a “blank” clause in which States may make derogations such as that suggested in the text. [Back] Note 22 Consultation paper, para 8.21 ff. [Back] Note 23 Ibid, para 16.17 ff. [Back] Note 24 The EC Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, applied by the Civil Jurisdiction and Judgments Act 1982 (the “1982 Act”). The Brussels Convention only applies when the case involves EU States. When a case involves an EFTA State the broadly parallel provisions of the Lugano Convention 1988 may apply. The latter Convention is not discussed in detail in this Part. [Back] Note 25 Consultation paper, para 8.21 ff. [Back] Note 26 Council Regulation (EC) No 44/2001 of 22nd December 2000. [Back] Note 27 Ibid, Article 76. [Back] Note 28 Contained in the Civil Jurisdiction and Judgments Act 1982, s 16, Sched 4. See paras 8.24-8.31 below. [Back] Note 29 See para 8.32, n 51 below. [Back] Note 30 The new EC Regulation is in the same terms. [Back] Note 31 Consultation paper, para 8.23. [Back] Note 32 Cf Gourdain v Nadler [1979] ECR 733 (in which it was held that a claim against a director of an insolvent company to contribute to the assets of the company under French law fell within the bankruptcy exception); the court said (at p 744) that the action must “derive directly from the bankruptcy or winding-up and must be closely connected with the proceedings for the ‘liquidation des biens’ or ‘reglement judicaire’ [bankruptcy order]”. [Back] Note 33 Support for this conclusion can be found in the Jennard Report (OJ 1979 C59/1) and Schlosser Report (OJ 1979 C59/72), which suggest (at p 12 and pp 91-92 respectively), that the exception should only extend to actual bankruptcy proceedings. Under s 3(b) of the Brussels Convention, the Jennard and Schlosser Reports may be used as aids to interpretation (see also Agnew and Others v Lansforsakringsbolagens AB [2000] 2 WLR 497 at p 503). See also the new EC Council Regulation on Insolvency Proceedings (see para 8.9, n 7 above), which defines “insolvency proceedings” for each country, by reference to a list (in Annex A); it does not include the 1930 Act. [Back] Note 34 Section 3 (Articles 7 to 12A). The justification, it appears, is that the insured’s bargaining power is likely to have been weaker than that of his insurer: Briggs and Rees, Civil Jurisdiction and Judgments (2nd ed 1997) p 120, n 630. Articles 7- 12A do not apply to reinsurance, but they apply to all forms of insurance, whatever the status and strength of the insured: see Agnew v Lansforsakringsbolagens [2000] 2 WLR 497. [Back] Note 35 The general rule is that an action against the insurer may be brought in the courts of the domicile of the insurer or of the policy-holder (Article 8). In respect of “liability insurance”, there are further extensions: the insurer may also be sued in the courts of the place where the harmful event occurred (Article 9); and Articles 7 to 9 are applied to actions brought by the injured party directly against the insurer, where such actions are permitted by the law of the court (Article 10). [Back] Note 36 It seems clear that the third party is not to be regarded as a “policy-holder” for this purpose: see Jennard Report (OJ 1979 C59/1) p 31 (“policy-holder” means the other party to the contract of insurance); Schlosser Report (OJ 1979 C59/72) p 117 (transfer of rights to a third party will not make the third party a policy-holder). This position appears to be unaffected in substance by the new EC Regulation (see para 8.19 above). This preserves, in modified form, the special rules for “matters relating to insurance” (Articles 8-14). Although Article 9(1)(b) adds a right to sue in the domicile of “a beneficiary”, this term does not seem apt to cover an injured party to whom rights are transferred by law (cf Article 11(2)). [Back] Note 37 Civil Jurisdiction and Judgments Act 1982, s 16, applying Sched 4 (“Title II of 1968 Convention as Modified for Allocation of Jurisdiction within UK”). It is enough that the subject-matter of the proceedings is within the scope of the Convention, whether or nor the Convention actually applies to the proceedings:ibid, s 16(1)(a). [Back] Note 38 1991 SC 372. See consultation paper, para 8.6. [Back] Note 39 Section 151(5), in respect of a judgment to which the section applies, requires the insurer to “pay to the persons entitled to the benefit of the judgment... as regards liability in respect of death or bodily injury, any sum payable under the judgment in respect of the liability...”. [Back] Note 40 Art 2 provides: “Subject to the provisions of this Title, persons domiciled in a part of the United Kingdom shall be sued in the courts of that part”. [Back] Note 41 Ibid, Sched 4, Article 5(1),(3). [Back] Note 42 The domicile of the defendant (or defender). [Back] Note 43 See Kleinwort Benson Ltd v Glasgow City Council [1999] 1 AC 153 at p 163 per Lord Goff, for a summary of the principles established by the European Court of Justice (applied by the 1982 Act s 16(3)(a)). [Back] Note 44 Subject to any express provision in the contract. [Back] Note 45 Chitty on Contracts (28th ed Vol 1) para 22-054; see also Dicey and Morris, Conflict of Laws (13th ed 2000) para 11.251. For Scots law, see Bank of Scotland v Seitz 1990 SLT 584. [Back] Note 46 In particular, Kalfelis v Bankhaus Schroder Munchmeyer Hengst & Co [1988] ECR 5565. See also Kleinwort Benson Ltd v Glasgow City Council [1999] 1 AC 153 at p 164A. [Back] Note 47 Davenport at p 379, per Lord Prosser. [Back] Note 48 Any such consideration would need to take account of the changes made by the new EC Regulation: see para 8.19 above. [Back] Note 49 Clause 13. Although the problem is more likely to arise in Scotland, the amendment will (in line with the other provisions of Sched 4) apply equally both sides of the border. Clause 13(4) is designed to bring Northern Ireland within a single set of rules, applying throughout the United Kingdom, if and when equivalent legislation is introduced in Northern Ireland. [Back] Note 50 The Lugano Convention 1988 may be relevant if the case involves an EFTA State. See para 8.19, n 24 above. [Back] Note 51 The rules are contained in CPR 6 and the Practice Direction attached to that rule. In summary, a claim form may be served on a defendant out of the jurisdiction without the permission of the court if the claim is one which the court has been given a power to determine by statute (CPR 6.19). A claim form may be served out of the jurisdiction with the permission of the court if the claim falls within one or more of a number of categories (CPR 6.20) and the case is a proper one for service out under the common law rules. The Court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim: CPR 6.21(2A). For the principles governing the court’s discretion, see The White Book Service (2001 Vol 1) para 6.21.16, summarising the principles derived from the cases, in particular Seaconsar (Far East) Ltd v Bank Markazi Jomhouri Islam Iran [1994] 1 AC 43 and The Spiliada [1987] AC 460. [Back] Note 52 Consultation paper, para 16.18. [Back] Note 53 Those who took a different view relied on RSC O 11, r 1(1)(d) (contractual claims) (now CPR 6.20); some commented that, if the insured could have served the insurer, so could the third party as his statutory assignee. [Back] Note 54 For example, liability might arise under an insurance contract made abroad, and not governed by English law, in circumstances not falling within CPR 6.20(5), or any other part of the rule. [Back] Note 55 See para 8.32, n 51 above. [Back] Note 56 The application of the 1930 Act to contracts containing Arbitration clauses, and our proposals for reform, are discussed at paras 5.39-5.44 above. [Back] Note 57 This section does not apply in Scotland. [Back] Note 58 See F Davidson, Arbitration (2000), para 7.18; Sanderson v Armour & Co. 1922 SC (HL) 117 at p 126 per Lord Dunedin. [Back] Note 59 In claims governed by the Brussels Convention, the courts are obliged to recognise exclusive jurisdiction clauses which meet certain requirements (Article 17 of the Brussels Convention and Article 23 of the new EC Regulation). Cf the position in claims within the United Kingdom governed by Sched 4 of the Civil Jurisdiction and Judgments Act 1982, Article 17 of which provides that such clauses confer, but do not exclude, jurisdiction. [Back]
