LORD JUSTICE RIX:
1. The claimant, A. I. SA-NV (formerly C. I. C. of Europe SA-NV, “A.”),
has commenced these proceedings for a declaration of non-liability under
a contract of reinsurance made with the first defendant, Z. I. Company
(“ZIC”). When subsequently it learned of ZIC’s assignment of all rights
and liabilities under the contract, as part of an overall carving out of
the business of ZIC’s US branch, to the newly formed Z. A. I. Company
(“ZAIC”), A. joined the latter as second defendant. ZIC, which is a Swiss
company, and ZAIC, which is a New York company, have applied to have
these proceedings stayed on the ground of forum non conveniens in
favour of proceedings in Texas. This is an appeal from the judgment of L.
J, who acceded to that application [2000] 2 Lloyd’s Rep 423.
2. There are two main issues. Logically, the first is whether the power to
stay proceedings on the ground of forum non conveniens is consistent
with the Lugano Convention, of which both the UK and Switzerland are
signatories. On behalf of A., Mr L. QC submits that it is not. If that were
the case, then jurisdiction in England against at least ZIC would be
maintained, and it is not seriously disputed by Mr M. QC on behalf of the
defendants that there is no virtue in separate proceedings concerning ZIC
and ZAIC respectively. Their cases, it might be said, stand or fall together.
The second issue is whether the proceedings should be stayed in favour of
Texan jurisdiction. On both issues L. J decided in favour of the defendants.
3. The original insured is a Texan company by the name of N. I. Inc
(“N.”). It and its associated companies were insured by a fronting
insurance company called S. I. Ltd (“So.”) and So. reinsured with ZIC.
ZIC’s policy ran for 36 months from 1 April 1996 and covered physical
damage and business interruption on a worldwide basis. It contained (in
condition 32) a Texan jurisdiction clause under which ZIC and So. waived
any objection to the state or federal courts of Texas on the ground of
improper venue or forum non conveniens. Other terms relevant to the
present dispute are conditions 24 and 36 and the blow out preventer
(“BOP”) warranty. Condition 24 (“Assignment of Insurance”) stated
that “This insurance shall be void if assigned or transferred without the
prior written consent of Underwriters”. Condition 36 (the “Claims Co-
operation Clause”) provided inter alia that it was a “condition precedent
to any liability hereunder that the Reinsured/Original Insured shall as
soon as practicable…give written notice” of any claim to ZIC and should
“cooperate with [ZIC] in the appointing of adjusters, assessors and
surveyors and the negotiating and/or adjusting and/or settling of all
claims…” The BOP warranty stated that “A blowout preventer of standard
make will be set on the surface casing per usual industry practice, same
to be installed and tested in accordance with usual practices…”
4. The reinsurance slip contract by which ZIC was reinsured by A. (strictly
speaking a retrocession, but I shall call it reinsurance) covered only part
of what ZIC’s policy had covered. Thus it was for a shorter period (from 4
May 1998 to 1 April 1999), excluded USA and Canada, and was limited to
60% of a sum insured of $10 million any one occurrence. Its “Conditions”
read as follows:
“As original and/or as original following the original in all respects
including claims settlement. Full R/I clause (LM 1) NMA 1735…Service of
Suit Clause NMA 1998…”
The Reinsurance Clause provided inter alia that –
“…this Contract reinsures the Reinsured’s interest in payments made
within the terms and conditions of the Original Policy…”
5. The Service of Suit Clause provided inter alia that –
“It is agreed that in the event of the failure of the Underwriters hereon
to pay any amount claimed to be due hereunder, the Underwriters
hereon, at the request of the Insured (or Reinsured), will submit to the
Jurisdiction of a Court of competent jurisdiction within the United States.
Nothing in this Clause constitutes or should be understood to constitute
a waiver of Underwriters’ rights to commence an action in any Court of
competent jurisdiction in the United States, to remove an action to a
United States District Court, or to seek a transfer of a case to another
Court as permitted by the laws of the United States.”
6. The clause went on to make provision for service either upon a specific
name, which had to be inserted, or upon the officers designated by any
statute in any state or district of the United States for the service of such
process.
7. On 26 May 1998 one of N.’ associated companies, N. S. Ltd (“N.”),
suffered a loss when a well blew out in Saudi Arabia. The blow out
preventer was in the process of being installed. There is now a dispute
as to whether this was being done in accordance with usual practice. For
present purposes, it is accepted (as sufficiently arguable) that ZIC did not
give immediate written notice of N.’ claim to A. and gave no notice until
January 1999. In the meantime ZIC had appointed loss adjusters and
investigated the claim for itself, but without A.’s input, and had settled the
claim for some $11 million. $7,624,000 was paid in November 1998 in
respect of the physical damage, $3,667,947 in December 1998 in respect
of business interruption, and in June 1999 a further $1,138,023 in respect
of additional physical damage.
8. A. disputed the claim, raising issues under the claims co-operation
clause and the BOP warranty. On 8 September 1999 A. was first into the
field of litigation, claiming a declaration in these proceedings that it had
no liability to ZIC because of breaches of both those terms, which it said
were incorporated into its contract.
9. ZIC’s response was (wholly mistakenly) to assert that it was not a
party to the contract of reinsurance, that the contract was made instead
with a company called Z. I., and that the Z. Illinois contract contained an
arbitration clause. On 19 January 2000 ZIC therefore applied to set aside
service of A.’s claim form on these grounds.
10. In the course of further investigation into these issues ZIC for the
first time, in April 2000, brought to A.’s attention the fact that and
documentation under which the contract of reinsurance in question had
been transferred with all the rest of ZIC’s US branch’s business to ZAIC.
This transfer had been achieved by means of a Domestication Agreement
made on 17 December and taking effect on 31 December 1998. Clause
1 of that Agreement provided for the transfer of “all of the business,
assets and liabilities of the United States Branch”. The transfer appears
to have taken place subject to and in accordance with the Insurance Law
of New York and seems to resemble some form of statutorily endorsed
universal succession by ZAIC to ZIC’s American business. News of this
development led to the further allegation by A. that its reinsurance is
void under the prohibition of assignment or transfer without prior written
consent contained in condition 24 of the underlying policy, also said to be
incorporated into the reinsurance contract.
11. On 28 April 2000, shortly before the hearing of ZIC’s challenge to the
jurisdiction in England, ZIC and ZAIC commenced their own proceedings
in Texas, in the district court of Harris county, pursuant to the service of
suit clause, claiming an indemnity under the contract of reinsurance.
12. On 3 May 2000 ZIC’s challenge to the jurisdiction in England came
before Thomas J. The parties had already agreed an order in the following
terms, which was then made by the judge:
“1. Subject to the following provisions of this order, there be no order
on the application of [ZIC]…save that…[ZIC] be at liberty to make such
further application pursuant to CPR Part 11…as it may be advised to make
and as it may be entitled to make on grounds other than those set out in
the said Application…
“2. The Claimant have permission to add [ZAIC] as Second Defendant to
this action;
“3. Without prejudice to the right of the [ZAIC] to apply…to have such
permission revoked, the Claimant do have permission on a without notice
basis…to serve [ZAIC] out of the jurisdiction…”
13. Pursuant to that order ZIC and ZAIC applied on 14 June 2000 for
a declaration that the English court would not exercise its jurisdiction
against them and for a stay of these proceedings, on the ground of forum
non conveniens and the existence of a distinctly more appropriate forum
in the district court of Harris, Texas.
14. That application came before L. J on 18 July 2000. On the same day
ZIC entered a new acknowledgment of service. ZIC there stated that it
intended to defend the claim and left the box, which was there to indicate
that it intended to contest the jurisdiction, unticked. However, Mr L. does
not submit that this prevented ZIC from arguing before L. J that “the
court should not exercise its jurisdiction” (see CPR 11(1)(b)).
15. L. J acceded to the defendants’ application to stay the proceedings;
he also set aside the leave granted to serve ZAIC out of the jurisdiction.
On the question of whether the court had power to stay a claim on
the ground of forum non conveniens brought against a domiciliary of a
contracting state under the Brussels-Lugano Conventions in a jurisdiction
sanctioned by those Conventions, he held that he was bound by the
decision of this court in In Re Harrods (Buenos Aires) Ltd [1992] Ch 72
to say that he did have that power. He did not regard Mr L.’s submission,
that the fact that the defendant in that case was domiciled in England
whereas the defendant here, ZIC, is domiciled in another contracting
state, viz Switzerland, enabled the Harrods decision to be distinguished,
was valid. Therefore, he was entitled to consider the forum non
conveniens argument on the application of ZIC as well as ZAIC. On the
merits of that argument, he found in favour of the defendants: although
he expressed the view that the proper law of the reinsurance contract was
English law, he thought that the significance of that was counterbalanced
by the relevancy of Texan law to issues under the underlying contract; as
to issues of fact, witnesses and other such matters, he thought that there
was little to choose between the convenience of London and Texas; and
he concluded that in these, otherwise evenly weighted circumstances, the
decisive factor or critical feature was the service of suit clause, which as
a matter both of commercial principle and of legal authority (he referred
to Excess Insurance v. Allendale Mutual Insurance Co (CA, 8 March 1995)
pointed to Texas.
16. In this court Mr Layton challenges both those conclusions. I will
consider the Convention point first.
Is a stay of A.’s claim against ZIC on grounds of forum non conveniens
consistent with the Lugano Convention?
17. ZIC is domiciled in Switzerland, a signatory, like the UK, to the Lugano
Convention on Jurisdiction and the Enforcement of Judgments in Civil
Matters (the Lugano Convention, which was given the force of law in
England by the Civil Jurisdiction and Judgments Act 1991 (the “1991
Act”)). The Lugano Convention is of course closely modelled on the 1968
Brussels Convention, save that it is not possible to refer questions to
the European Court of Justice. Subject to a reservation under which it is
permitted to argue its point on forum non conveniens, ZIC has submitted
to the jurisdiction of the English court. It is common ground, therefore,
that the English court has jurisdiction in this case over ZIC under article
18 of the Lugano Convention, which provides –
“Apart from jurisdiction derived from other provisions of this Convention,
a court of a Contracting State before whom a defendant enters an
appearance shall have jurisdiction.”
18. A. also asserts that it has jurisdiction over ZIC under article 5(1),
but by common assent it has not been necessary to debate that question
because of the common ground on article 18.
19. However, section 49 of the Civil Jurisdiction and Judgments Act 1982
(the 1982 Act), as amended by the 1991 Act, provides –
“Nothing in this Act shall prevent any court in the United Kingdom from
staying, sisting, striking out or dismissing any proceedings before it, on
the ground of forum non conveniens or otherwise, where to do so is not
inconsistent with the 1968 Convention [the Brussels Convention] or, as
the case may be, the Lugano Convention.”
The question therefore arises whether the staying of these proceedings as
against ZIC would be “inconsistent” with the Lugano Convention.
20. I will deal with this point more briefly than its interest and the erudite
submissions of Mr L. and Mr M. deserve, because in my judgment this
court is bound by previous authority to say that the staying of these
proceedings against ZIC would not be inconsistent with the Lugano
Convention.
21. In In Re Harrods (Buenos Aires) a company incorporated in England,
but doing business exclusively in Argentina, was at any rate nominally
defendant to a petition brought by the minority shareholder against the
majority shareholder (both of whom were Swiss companies) pursuant
to section 459(1) of the Companies Act 1985 on the ground that it was
being unfairly prejudiced by the latter’s conduct of the company’s affairs.
At that time, prior to the Lugano Convention, the UK was a signatory to
the Brussels Convention, but Switzerland was not. Jurisdiction against
the English company existed under article 2 of the Brussels Convention.
Nevertheless, the court of appeal decided that it had an inherent power,
preserved by section 49 of the 1982 Act, to stay proceedings in England
in favour of the natural forum in Argentina.
22. Dillon LJ said (at 93D/E):
“It is implicit in [section 49], in my judgment, that the court cannot stay
or strike out or dismiss any proceedings on the ground of forum non
conveniens or otherwise where to do so would be inconsistent with the
Convention, and that covers all cases where the defendant in proceedings
in England is domiciled in England and the conflict of jurisdiction is
between the jurisdiction of the English court and jurisdiction of the courts
of some other contracting state.
“The crucial question in the present case is whether the English court
can stay, strike out or dismiss proceedings on the ground of forum non
conveniens, where the defendant in the English proceedings is domiciled
in England, but the conflict of jurisdiction is between the jurisdiction of the
English court and the jurisdiction of the courts of a state which is not a
contracting state, no other contracting state being involved.”
23. Dillon LJ sought to answer that question by considering first, article
220 of the Treaty of Rome, and then the case of a defendant domiciled in
a non-contracting state. He said (at 96C/G):
“As I see it the starting point in approaching the construction of the
Convention must be article 220 of the E.E.C. Treaty, since the Preamble
to the Convention shows as the starting point the desire of the parties
to implement that article. The object of article 220 was to secure the
simplification of formalities governing the reciprocal recognition and
enforcement of judgments of courts or tribunals between the member
states of the Community.
“To achieve such recognition and enforcement it was evidently decided
that the contracting states should have a common basis of international
jurisdiction – or jurisdiction in the international order – in the matters
which fall within the scope of the Convention. But the common basis of
jurisdiction envisaged does not apply worldwide since under article 4, if
a defendant is not domiciled in a contracting state the jurisdiction of the
courts of each contracting state is to be determined by the national law.
The desideratum expressed in Professor Schlosser’s report, Official Journal
1979 No. C. 59/71. p/97, para. 78, that
“A plaintiff must be sure which court has jurisdiction. He should not have
to waste his time and money risking that the court may consider itself
less competent than another.”
is thus very obviously not met where the defendant is not domiciled in a
contracting state. Indeed the following passages in paragraph 78 appear
to show that the Professor was only concerned in the paragraph with the
protection of persons domiciled in the contracting states and with choices,
which should not be on the ground of forum conveniens, between the
courts of several contracting states having jurisdiction.”
24. Thus the case of the defendant domiciled in a non-contracting state
was used to illustrate, with the assistance of article 4 (“If the defendant
is not domiciled in a Contracting State, the jurisdiction of the courts of
each Contracting State shall, subject to the provisions of Article 16, be
determined by the law of that State”), the limitations of the interests and
purposes of the Convention.
25. Dillon LJ next drew attention to various anomalies which in his
judgment would arise if the English court lacked a power to stay on the
ground of forum non conveniens. Thus despite the provisions found in
articles 21/22 for dealing with lis alibi pendens in the courts of contracting
states, the English court would be powerless to refuse to entertain an
action in England founded on the Convention where a lis was pending in
the courts of a non-contracting state. Similarly, despite article 17, the
English court would be unable to give effect to an exclusive jurisdiction
clause in favour of the courts of a non-contracting state. He concluded (at
97H/98A) –
“Such results would, in my judgment, be contrary to the intentions of the
Convention. Since the Convention is merely an agreement between the
contracting states among themselves, I do not agree with Hobhouse J.
that the framework of the Convention would be destroyed if there were
available to the English court a discretion to refuse jurisdiction, on the
ground that the courts of a non-contracting state were the appropriate
forum, in a case with which no other contracting state is in any way
concerned. I do not accept that article 2 has a very wide mandatory effect
which Hobhouse J. would ascribe to it where the only conflict is between
the courts of a single contracting state and the courts of a non-contracting
state.”
26. Bingham LJ agreed (at 103E) but also developed his own judgment.
He set himself to adopt “an international and communautaire, not a
national and chauvinistic approach” (at 99B). He too drew on article 220,
the preamble to the Convention, and the case of the defendant domiciled
in a non-contracting state. In that respect he referred to the Jenard report
(Official Journal 1979 No C 59/1) at p13 where it is said –
“Everything possible must therefore be done not only to eliminate any
obstacles to the functioning of this market, but also to promote its
development. From this point of view, the territory of the contracting
states may be regarded as forming a single entity: it follows, for the
purpose of laying down rules on jurisdiction, that a very clear distinction
can be drawn between litigants who are domiciled within the Community
and those who are not.”
27. Bingham LJ then considered a range of wider argument (at 101) and
two first instance decisions to the effect that the power to stay on the
ground of forum non conveniens was inconsistent with the Convention’s
mandatory jurisdiction under article 2. Both those cases (S & W Berisford
Plc v. New Hampshire Insurance Co [1990] 2 QB 631 (Hobhouse J) and
Arkwright Mutual Insurance Co v. Bryanston Insurance Co Ltd [1990] 2
QB 649 (Potter J)) were concerned with defendants domiciled (or treated
under article 8 as being domiciled) in England. Bingham LJ then continued
and concluded (at 103A/D) as follows:
“[Those cases] have, however, provoked a critical note bearing the very
considerable authority of Mr. Lawrence Collins in (1990) 106 L.Q.R. 535. I
would for my part adopt his conclusion, at pp. 538-539:
“When the European Court comes to consider the application of the
Convention to non-contracting states, it should seek the answer in treaty
interpretation, and ultimately in public international law. The Convention
was intended to regulate jurisdiction as between the contracting
states. Thus the Convention provides that in principle domiciliaries of a
contracting state should be sued in that state, subject to important and
far-reaching exceptions, and not in other contracting states. Once a court
in a contracting state has jurisdiction it is entitled vis-à-vis other states,
to exercise that jurisdiction and other courts cannot. But the states which
were parties to the Convention had no interest in requiring a contracting
state to exercise a jurisdiction where the competing jurisdiction was in a
non-contracting state. The contracting states were setting up an intra-
Convention mandatory system of jurisdiction. They were not regulating
relations with non-contracting states.”
Section 49 of the Act preserves the power of the English court to stay or
dismiss any proceedings before it, on the ground of forum non conveniens
or otherwise, where to do so is not inconsistent with the Convention of
1968. The ultimate question, therefore, is whether the exercise of the
discretionary power here in issue in the present situation, where the only
alternative forum is in a non-contracting state, is inconsistent with the
Convention of 1968. I conclude that it is not and accordingly accept the
argument of Intercomfinanz on this point.”
Stocker LJ agreed with the judgments of both Dillon LJ and Bingham LJ.
28. That this decision is a controversial one is not in dispute. The House
of Lords gave leave to appeal, and after hearing argument for a number
of days referred six questions to the European Court of Justice. The
questions can be found stated in the Official Journal of the European
Communities (1992) OJ C219/4 (26.8.92). They included two questions
as to whether the petition in the Harrods case fell within the terms of
article 16(2), which grants exclusive jurisdiction to the courts of the
contracting state where a company has its seat in proceedings which have
as their object (inter alia) the dissolution of companies or the decisions
of their organs. Article 16(2) had not been raised in the court of appeal.
Ultimately, however, the reference to the European Court of Justice did
not proceed as the appeal to the House of Lords was compromised.
Lord Bingham of Cornhill CJ (as he then was) himself referred to the
controversy in the subsequent case of Haji-Ioannou v. Frangos [1999] 2
Lloyd’s Rep 337 at 346, where he said, speaking for the court –
“The decision has excited considerable controversy and may no doubt
be overruled or varied hereafter. But it is at present authority binding
upon us for whatever the case decided. The case must be taken to have
decided that, where the choice is between the exercise of jurisdiction
properly conferred on the English Court and the exercise of jurisdiction by
a foreign Court in a non-Contracting State, the power to stay on grounds
of forum non conveniens is not excluded by the Convention.”
29. The point was reargued before the House of Lords in Lubbe v. Cape
Plc [2000] 1 WLR 1545, where again the defendant was domiciled in
England, but their Lordships did not consider it necessary to resolve it.
If they had, they would again have referred it to the European Court of
Justice (at 1562B).
30. Mr Layton was prepared to submit in this court, as he had done before
Longmore J, that the present case, where the defendant is domiciled
not in England but in another contracting state could be distinguished
from In re Harrods. For these purposes he emphasised those passages
in the judgments of both Dillon LJ and Bingham LJ where the case of
the defendant domiciled in a non-contracting state was distinguished
from that of the defendant domiciled in a contracting state. And he
emphasised in particular those passages in the judgment of Dillon LJ
which in his submission were deliberately inserted to guard against
the extension of the decision in that case to a different situation where
another contracting state was involved – see at 93E (“no other contracting
state being involved”), at 97H (“in a case with which no other contracting
state is in any way concerned”) and at 98A (“where the only conflict is
between the courts of a single contracting state and the courts of a non-
contracting state”). He also referred to Bingham LJ’s remark at 102A
concerning “the absence of any conflict or potential conflict of jurisdiction
between contracting states” (emphasis added).
31. That distinction did not appeal to Longmore J (see paragraphs 20/21
of his judgment), and is inconsistent both with Bingham LJ’s adoption
of the analysis of Mr Lawrence Collins (as he then was) at 103B/C and
with Lord Bingham’s statement in Haji-Ioannou v. Frangos as to what In
re Harrods (Buenos Aires) had decided (albeit that statement was in an
obiter part of the court’s judgment).
32. Be that as it may, Mr L.’s difficulties were redoubled when the further
court of appeal authority of Eli Lilly and Company v. Novo Nordisk A/S
[2000] 1 L Pr 73, which was not cited below, surfaced on this hearing.
For in that case the defendant was Danish and therefore a domicilary
of another contracting state, and even so this court held both that In re
Harrods had decided that “the Brussels Convention does not apply so as
to regulate the jurisdictional issues between the courts of Contracting
States and the courts of non-Contracting States” (at 78), and that it was
not inconsistent with the Convention in that case to conclude that the
courts of New Jersey were the appropriate forum for the resolution of the
disputes between the parties (at 79).
33. Mr L. was driven therefore to submit (i) that In re Harrods was
wrongly decided; (ii) that it was decided per incuriam; and (iii) that Eli
Lilly was also decided per incuriam.
34. His first submission is only relevant if his second and third
submissions were to bear fruit. As to In re Harrods, Mr L. submitted that
it was decided per incuriam because article 16(2) was overlooked in the
court of appeal, which would have given exclusive jurisdiction to the
English courts in any event. Mr M. was prepared to submit, and made a
powerful argument, that the claim in In re Harrods was not within article
16(2) in any event. In my judgment, however, it is unnecessary to decide
that point since, even if article 16(2) did apply, that might merely mean
that the result was wrong, but would not in itself impugn the reasoning of
the court in the absence of article 16(2).
35. It is possible that Mr L. also intended to submit that In re Harrods was
decided per incuriam because the result did not follow from the reasoning,
ie that the case of a competing jurisdiction in a non-contracting state was
not analogous to the case of a defendant domiciled in a non-contracting
state at any rate where the defendant was domiciled in a contracting state
other than the UK. But quite apart from the fact that in my judgment
that submission would not do justice to the reasoning of the court, the
point is in any event bad, since it is merely another way of saying that the
reasoning is flawed and wrong, not that the decision was per incuriam.
36. That applies equally to Mr L.’s submission that Eli Lilly was decided
per incuriam. In effect Mr L. was saying that the court of appeal in Eli
Lilly was wrong to read In re Harrods in the way that it did, and wrong
to apply the reasoning of that case to the situation of a defendant in
a contracting state other than the UK. That, however, does not make
the decision per incuriam. The situation is quite unlike the examples of
decisions reached per incuriam discussed in Young v. Bristol Aeroplane
Company Limited [1944] 1 KB 718.
37. There, in the famous judgment of this court given by Lord Greene MR,
the following is found at 729:
“Where the court has construed a statute or a rule having the force of a
statute its decision stands on the same footing as any other decision on
a question of law, but where the court is satisfied that an earlier decision
was given in ignorance of the terms of a statute or a rule having the
force of a statute the position is very different. In cannot, in our opinion,
be right to say that in such a case the court is entitled to disregard the
statutory provision and is bound to follow a decision of its own given when
that provision was not present to its mind Cases of this description are
examples of decisions given per incuriam. We do not think that it would
be right to say that there may not be other cases of decisions given per
incuriam in which this court might properly consider itself entitled not
to follow an earlier decision of its own. Such cases would obviously be
of the rarest occurrence and must be dealt with in accordance with their
special facts. Two classes of decisions per incuriam fall outside the scope
of our enquiry, namely, those where the court has acted in ignorance of a
previous decision of its own or of a court of co-ordinate jurisdiction which
covers the case before it – in such a case a subsequent court must decide
which of the two decisions it ought to follow; and those where it has acted
in ignorance of a decision of the House of Lords which covers the point –
in such a case a subsequent court is bound by the decision of the House
of Lords.”
38. That was not intended to be an exhaustive categorisation of decisions
given per incuriam, but it is still clear that the present cases of In re
Harrods and Eli Lilly fall outside the rationale of any such rule. The terms
of the Convention were before the court of appeal in both cases; no
binding or authoritative decisions have been identified or even suggested
as having been overlooked. It is simply that the decisions are said to
have been wrong, that in In re Harrods the court misinterpreted the
Convention, and that in Eli Lilly the court misinterpreted In re Harrods.
39. In my judgment In re Harrods and Eli Lilly cannot be said to have
been decided per incuriam but are binding on this court, and therefore
Mr L.’s submissions on the merits of those decisions do not arise. I
can record, however, that those submissions embraced what in Haji-
Ioannou v. Frangos at 347 Lord Bingham himself recognised to be “the
erudite and judicious consideration of the subject” by Briggs & Rees in
Civil Jurisdiction and Judgments, 2nd ed, 1997, particularly at paras
2.225/231. Even so, Lord Bingham went on to say (ibid) -
“Having reviewed the arguments both ways, in a manner which calls for
careful reading but cannot be fairly summarized, the authors incline to
the opinion that there is in the present situation no discretion to stay
on the grounds of forum non conveniens. It does not, however, appear
to us that the exercise of jurisdiction to stay on grounds of forum non
conveniens is subversive of the Convention regime, and in appropriate
circumstances we consider that recognition of a power to stay or dismiss
may promote that due administration of justice which must be the
ultimate and paramount concern of all Contracting States.”
40. Mr L. also submitted that the problem of articles 17, 21 and 22 which
had exercised Dillon LJ in the Harrods case (because they were confined
to lis alibi pendens in the courts of a contracting state (articles 21/22)
or to jurisdiction agreements in favour of contracting states (article 17))
was to be overcome by applying those articles by analogy (or in what is
termed “reflexive” mode) in the case of non-contracting states. This would
be to find a solution to the problem within the terms of the Convention
itself, rather than by a doctrine of forum non conveniens which is foreign
to the Convention. The matter is discussed in Briggs & Rees at paras
2.233/5, Dicey & Morris, The Conflict of Laws, 13th ed, 2000, at para
12.019. Mr M. was inclined to agree that, as an alternative to his primary
submission, such articles of the Convention should at the very least be
applied by analogy in such situations. Thus he categorised as absurd
the possibility that the English courts could not stay a late invocation
of Convention jurisdiction in England, after a foreign trial to which the
English claimant was a party had been proceeding a long way.
41. There was therefore a degree of unanimity that exclusive jurisdiction
clauses of the kind countenanced by article 17 should be applied even
where the clause in question was in favour of a non-contracting state.
The difficulty was that Mr L. and Mr M. were not agreed as to whether
the service of suit clause in the present case would or would not have
fallen within article 17 if it had provided for jurisdiction in a contracting
state rather than in Texas. Mr M., relying on Kurz v. Stella Musical GmbH
[1992] Ch 196 at 203/4, characterised the service of suit clause as one
that would have been within article 17 if it had provided for jurisdiction in
Paris. Mr L., however, submitted that, because the service of suit clause
did not have what he called preclusive effect, in the sense that it did not
preclude either party from commencing litigation in courts which would
otherwise have jurisdiction under the Convention, therefore it was not
supported by the reasoning of Hoffmann J in Kurz v. Stella Musical nor did
it come within the terms of article 17. Longmore J did not feel it necessary
to resolve this issue, merely remarking at para 21 of his judgment that:
“It would be even odder if an agreement to submit to the jurisdiction of
the courts of a non-contracting State had to be treated as ineffective in
any Convention country. That is, however, the effect of Mr L.’s argument
if, as he argued, article 17 has no application because pursuant to Excess
v. Allendale the Service of Suit clause was not an exclusive clause.”
42. In the light of my acceptance of the argument that this court is bound
by its previous decisions to give effect to applications based on forum non
conveniens, I need not resolve this issue either, and would be reluctant
to do so on the basis of the brief arguments addressed on it. However,
this issue does indicate how narrow, in one sense, is the divide between
the parties. In another sense, of course, they are divided by different
conceptions of the nature of the Convention.
43. I would record that there was no submission that the argument which
divided the parties was affected in any way by the fact that (not only
was the defendant domiciled in Switzerland but) the claimant, A., was
also domiciled in yet a third contracting state, namely Belgium. Although
the contract in question was made in London through A.’s office here,
article 8, which would have deemed its domicile to be in England had the
contract been one of insurance rather than reinsurance, has no application
to the case of reinsurance: see Agnew v. Länsförsäkringsbolagens AB
[2000] 2 WLR 497 and Group Josi Reinsurance Company SA v. Universal
General Insurance Company (Case C-412/98) [2000] 3 WLR 1625.
44. For these reasons, as a matter of authority binding on this court, it is
permissible to consider ZIC’s application to stay these proceedings on the
ground of forum non conveniens on its merits.
Forum non conveniens
45. In the judgment below and in Mr L.’s submissions on appeal the
issue of forum non conveniens was considered first. I have reversed the
order, because it seems to me that logically the Convention question
takes priority. In taking this course, I have been struck by the thought
that, even though the Convention may not preclude the application of
the doctrine of forum non conveniens where the competing forum lies
in a non-contracting state, nevertheless it may be relevant to consider,
as part of the question of forum non conveniens, the presence and
nature of jurisdiction in England under the Convention. In the event,
however, this approach has been bypassed in the submissions in this court
by a combination of dealing with the forum non conveniens argument
first and by ZIC’s (contingent) submission to the jurisdiction of the
English court. The latter has obscured the question whether any special
jurisdiction under the Convention such as jurisdiction under article 5(1),
as distinct from jurisdiction by way of submission, applies in this case.
I say this because, as between A. and ZIC, who are both domiciliaries
of separate contracting states, it might perhaps have been said that
the fact that England is bound (albeit where a competing jurisdiction
in a non-contracting state is concerned, subject to considerations of
forum non conveniens) to recognise the special jurisdictions of the
Convention, should play some role, and possibly not an insignificant
role, in the exercise of its discretion to stay on the basis of forum non
conveniens. However, the Convention factor was only brought into play
on the Convention issue above. It is true that Mr L. did at times rely in
the context of forum non conveniens on the establishment of jurisdiction
in England by consent (in circumstances where it was common ground
that that provided Convention jurisdiction under article 18). However, no
special Convention point was being made at this stage of the argument,
and it seems to me that, subject to the different question as to whether
ZIC’s willingness to enter an appearance before the English court can
be said to have waived reliance on the service of suit clause, in all
other respects ZIC’s appearance here under a reservation of forum non
conveniens takes the argument, for the purposes of that doctrine, no
further. I therefore leave the Convention out of account for present
purposes.
46. Mr L.’s approach on this part of the case was rather as follows: first,
to attempt to show that Longmore J had erred in principle and not merely
as a matter of degree in failing to find in the English proper law of the
reinsurance contract a reason for concluding that England was a more
convenient forum than Texas; and secondly, to discount the significance
of the service of suit clause (which it will be recalled that Longmore J had
treated as the critical factor) on the basis inter alia that ZIC had waived it
by submitting to the jurisdiction in London.
The significance of English proper law
47. I turn therefore to the first prong of Mr L.’s attack, which was to
seek to promote the importance of English law in A.’s claim under the
reinsurance contract and thus to undermine Longmore J’s view that its
significance was counterbalanced by the relevancy of Texan law to issues
under the underlying contract of insurance. Longmore J, dealt with this
issue briefly. He said (at para 9):
“I will say, however, that, in my view, the proper law of the reinsurance
contract is English law…That does not mean that an English Court will not
have regard to the law of Texas; that is because the liability reinsured is
a liability under Texas law. Texas law will therefore be relevant and which
ever Court decides the case will have to know or be informed of Texas
law. The fact, therefore, that the proper law of the reinsurance contract is
English is not of any significant weight in concluding where the case is to
be tried."
48. Longmore J had already referred (at paras 5(3) and 6(1)) to the
competing submissions before him: on the part of Mr M. that Texan
law would have to be looked at, as the law of the underlying insurance,
pursuant to the teaching of Forsikringsaktieselskapet Vesta v. Butcher
[1989] AC 852; and on the part of Mr L. that questions of Texan law could
not arise under an English law contract. On that issue, the judge had
preferred the submission of Mr M..
49. In Vesta v. Butcher the House of Lords had to consider an original
policy, under which a Norwegian insurer had insured a fish farm in
Norway, and a reinsurance policy made in the London market which was
treated as incorporating all the provisions of the underlying contract and
also contained a “follow the settlements” clause. The Norwegian policy
was governed by Norwegian law and the London policy was governed by
English law. The original assured suffered a loss while in breach of two
warranties, one requiring the keeping of detailed stock records, the other
promising continuous surveillance. However, the breaches of warranty
were not causative of the loss. In those circumstances Norwegian law
provided no defence, although English law did. The reinsured settled with
the original assured without reference to the reinsurer. The reinsurer
declined liability in reliance on a claims control clause, also treated as
incorporated into the reinsurance policy, which provided that failure
to comply with any of the warranties would render the policy null and
void. Under Norwegian law the latter provision did not bite on a failure
which was not causatively relevant. Was English law or Norwegian law to
prevail? The effect of their Lordships’ judgment was that Norwegian law
was to prevail, essentially on the basis that where a reinsurance contract
was intended to provide back to back indemnity for any liability under
the underlying contract, English law would construe identical clauses in
the two contracts in the same way as they were construed under the
underlying policy (at 892C and 911E).
50. It has been suggested (in Kluwer’s reinsurance law, at B.1.2-06/16)
that the concession in Vesta v. Butcher that the warranties and
claims control clause were incorporated into the reinsurance contract
unnecessarily complicated the reasoning in that case, and that the
problem might have been more easily resolved if permission had been
granted at first instance to amend to plead no incorporation of such
terms: in that case the reinsurers’ liability would simply have been to
follow the settlement. A distinction is made (at B1.2.06), on the basis
of decided cases, between the incorporation of insuring wording, which
presents no problems, and the incorporation of terms and conditions
applicable to the original policy, such as obligations of the assured during
the currency of the policy or on making a claim, which may be irrelevant
or even repugnant to the reinsurance policy: it is suggested that the
incorporation of such terms should require clear wording. In Vesta v.
Butcher Lord Griffiths (at 894/7) went a certain distance to consider what
arguments might have arisen if permission to amend had been granted;
and Lord Lowry referred more briefly and cautiously to the issue (at
912F). Similar arguments would arise in the present case, but are not
for resolution at this stage. Mr L.’s starting position, however, is that the
three terms he relies on, ie the assignment of insurance clause (condition
24), the claims cooperation clause (condition 36) and the BOP warranty,
are all incorporated.
51. In this court Mr L. has sought to maintain his submission below that
Texan law nevertheless has no relevance, but he has faced a difficult task.
He was inclined to concede that the BOP warranty would, on Vesta v.
Butcher principles, receive the same construction under English and Texan
law, but in the case of that term he submitted that there was unlikely to
be any difference as a matter of law, and that the real controversy lay in
narrow issues of fact, based on the existing evidence as to what occurred,
as to whether what was being done was in accordance with usual industry
practice, a matter essentially for expert opinion. It must follow in my
judgment that as to that term at any rate Mr L. can derive no advantage
out of English law.
52. As to condition 24 and the prohibition on assignment, Mr Layton
submits that this term is incorporated into the reinsurance contract
and renders it void on the basis that ZIC assigned or transferred its US
business, including its liability under its policy and its rights under the
reinsurance policy, to ZAIC without A.’s prior consent. He submits that the
effect of the condition, once an assignment prohibited by it is proved, is a
pure matter of English law – and a straightforward one at that. He seeks
to avoid the effect of Vesta v. Butcher by submitting that since condition
24 refers to a different “insurance” and different “Underwriters” when
read in the underlying policy and in the reinsurance contract respectively,
the doctrine of that case cannot apply.
53. ZIC/ZAIC for their part deny that condition 24 is so incorporated
into the reinsurance contract, but, on the assumption that it is, say,
on the basis of the evidence of their US law expert, that under New
York law, being the law governing the assignment and the proper law
of the Domestication Agreement, a transfer of an insured’s business
and assets by operation of law (under the Insurance Law of New York)
having no effect on the risk or hazard of loss does not violate a non-
assignment provision such as condition 24. Copious authority is cited
for this proposition, and it is said that it would be followed by a Texan
court. The expert adds: “This rule effectuates the intent of the parties
to the insurance contract, that is, to prohibit only those assignments
that increase the risk of loss to the insurer.” In this connection it was to
be noted that the risk had materialised in May 1998 (and been almost
entirely paid by December 1998), whereas the transfer only took effect
on 31 December 1998: New York law also held that a non-assignment
provision did not prohibit assignment after the date of loss. Finally,
New York law (and a Texan court) would, if necessary, give effect to
a clause in the Domestication Agreement whereby nothing done was
intended to impair ZIC’s or ZAIC’s rights: so that even if, for the sake
of argument, a court were to be minded otherwise to forfeit their rights
under the reinsurance contract, it would instead “reform or rectify” the
Domestication Agreement so as to carve out the reinsurance contract
from the transfer so as to effectuate the intent of the parties not to impair
their rights. Mr L. was prepared to concede that the effect of the transfer,
including the issue of rectification, would be a matter for New York law,
even under an English law contract.
54. In the circumstances, I do not see how condition 24 is of much
assistance to Mr L. for the purposes of his submission that English law has
a qualitatively superior significance in this litigation. Even if the condition
is incorporated, and even if it is to be given a construction different from
and wider than New York law would give it or Texan law or a Texan court
would recognise, it would be impossible to avoid looking to New York law
both for the effect of the transfer and for the issue of rectification. As it is,
with the issues of incorporation and of the effect of Vesta v. Butcher both
in contention, it would be impossible at trial in England to avoid looking to
evidence of New York law for the whole gamut of submission relevant to
the condition.
55. Thirdly, Mr L. relies on condition 36 as providing the context for
the importance of English law. He again submits that it is incorporated
and that the doctrine of Vesta v. Butcher is avoided since under the
reinsurance contract the claims cooperation clause has a content different
from that which it would have under the original insurance: under the
reinsurance contract it would impose an obligation on ZIC for A.’s benefit,
not an obligation on the original assured for ZIC’s benefit. Again, however,
both issues are in dispute (as well as the factual issue as to whether
prompt notice was actually given). Mr M. submits that condition 36 is not
incorporated and that it is a simple question of A.’s obligation to follow
the settlement; but that even if that were not so, because condition
36 was incorporated, either condition 36 would have no effect because
under Texan law it provided no defence in the absence of prejudice, or
it would still be open to the respondents to prove that they had made a
reasonable settlement. In that last respect, he has some support from
what Lord Lowry (citing Hobhouse J at first instance) said in Vesta v.
Butcher at 912H/913F for a submission that it would always be open
for the respondents to seek to prove that they were liable under ZIC’s
policy and thus to enforce liability under the reinsurance contract. In
this connection, the respondents had pointed out to A. in the course of
correspondence in May 1999 that they could hardly have left the claim
to go to trial in Texas, where N. was domiciled, with the endemic risk
of facing punitive damages: “To deny this loss on that basis [the BOP
warranty] would certainly be considered arbitrary, in the least.” But quite
apart from those considerations, Mr M. is able to point to evidence of
Texan law to the effect that untimely notice will not defeat a reinsurance
claim in the absence of prejudice to the reinsurer, and that a “settlement-
without-consent exclusion” would only be construed to operate in favour
of a reinsurer who has suffered prejudice.
56. Mr L. is able to say, correctly, that all issues of incorporation or as to
the extent of the doctrine in Vesta v. Butcher would be matters of English
law. Nevertheless, he remains at any rate prima facie under the difficulty
that either the claims cooperation clause is incorporated, in which case
one has to look at least arguably to Texan law, or it is not incorporated, in
which case cadit quaestio.
57. These considerations, which, in deference to Mr L.’s argument, I have
taken at greater length than the judge, who was perhaps faced with
briefer submissions below, have left me utterly unconvinced that English
law has a qualitatively more significant role to play than Texan and/or
New York law, or that the judge was wrong to find that the fact that the
proper law of the reinsurance contract might be English “is not of any
significant weight in concluding where the case is to be tried”.
The significance of the service of suit clause
58. I therefore turn to the second main plank in Mr L.’s attack on the
judgment below on this part of the case, which is to seek to discount the
significance of the service of suit clause, which Longmore J had treated as
a critical factor. The relevant part of the clause is set out above (at para
5). The critical wording is that “the Underwriters hereon, at the request
of the Insured (or Reinsured) will submit to the Jurisdiction of a Court of
competent jurisdiction within the United States…”
59. Longmore J treated the clause as critical in large part under the
influence of what this court had said in Excess Insurance v. Allendale.
There, as here, the reinsurer sought to bring proceedings against his
reassured in England and was first into the field. The reinsurance contract
contained a service of suit clause in materially identical terms. The judge
at first instance Saville J, who refused to maintain leave to serve out
under RSC Order 11 at the inter partes hearing, was interpreted as
having decided in effect that, even though at that time there had been
no request to submit to the jurisdiction of a US court, the reinsurer
had broken his contract by starting his proceedings in England. On that
basis, the clause would be viewed as an exclusive jurisdiction clause.
On appeal, Hobhouse LJ, who gave the leading judgment with which the
other members of this court agreed, said that that was mistaken. The
clause is not an exclusive jurisdiction clause: either party may sue the
other wherever it has the right to do so. However, by the time that case
had reached the court of appeal, the reassured had commenced suit in
the courts of Rhode Island and had requested the reinsurer pursuant to
the clause to submit to the Rhode Island court’s jurisdiction. In the result,
the appeal failed. Hobhouse J said:
“In my judgment, on the facts which now exist, it is inevitable that the
discretion should be exercised in the same way as Saville J exercised it.
This is not a suitable case in which, on the facts as they presently exist,
to give leave to serve out of the jurisdiction. The writ was one which
appears to raise bona fide arguable claims and to raise an arguable basis
under Order 11 r1. But it is an action which will now be proceeding in
parallel with the proceedings that have been started in the Rhode Island
court. The proceedings in the Rhode Island court have been properly
started as a matter of jurisdiction. That is the effect of the Service of Suit
clause and no one has argued before us to the contrary. The Rhode Island
court will have to consider whether in the exercise of its own jurisdiction
it should stay the proceedings before it. It is suggested that it may be
persuaded to do so on the basis that the United Kingdom courts are a
more convenient forum than the courts of Rhode Island. It is for the
judge in the Rhode Island court to determine whether he considers that
is the case. If he decides that it is not the case, then the proceedings
will continue in Rhode Island. The question of liability will have to be
determined in Rhode Island. It is not proper or appropriate that the courts
of this country should at the same time try to determine, on an Order 11
basis, the matters which, within the jurisdiction of the Rhode Island court,
are being determined by that court. There, on that hypothesis, this is not
a suitable case to give leave to serve out of the jurisdiction.”
60. Mr L. submits, however, that the present case is distinguishable. First,
by submitting to the jurisdiction of the English court, ZIC has waived its
right to enforce the clause. Secondly, because ZIC has submitted to the
jurisdiction in England, the burden is on ZIC to justify a stay, rather than
on the reinsurer to justify service out. Thirdly, a service of suit clause is
never decisive, and may be outweighed by the obvious convenience of
having the substantive issues tried in England.
61. In my judgment, however, none of these submissions prevails. As to
the first of them, ZIC’s acceptance of English jurisdiction (a) came only
after it (and ZAIC) had already filed its action in Texas on 28 April 2000
and (b) was subject to their application for a stay of the proceedings here
on the ground of forum non conveniens. That application invoked the
Texas action and the service of suit clause as among the grounds why
the English court should not exercise its jurisdiction over them. In such
circumstances it is impossible to say that there has been any waiver of
any rights under the service of suit clause.
62. As for Mr L.’s second and third submissions, I can take them together.
It is of course true that, by reason of the acceptance of jurisdiction in
England, ZIC faces a burden which, in Excess Insurance v. Allendale,
fell entirely, under RSC Order 11, on the claimant. Nevertheless, A.’s
agreement in the service of suit clause to submit itself to the jurisdiction
of a court of competent jurisdiction within the United States effectively
reverses the burden of persuasion once again. If a party agrees to submit
to the jurisdiction of the courts of a state, it does not easily lie in its
mouth to complain that it is inconvenient to conduct its litigation there (ie
to assert that the agreed forum is a forum non conveniens). As Waller J
pointed out in British Aerospace Plc v. Dee Howard Co [1993] 1 Lloyd’s
Rep 368 at 376, speaking of matters of convenience in the context of a
non-exclusive jurisdiction clause, it is necessary to point to some factor
which could not have been foreseen in order to displace the bargain which
has been agreed. In such a case that party must show some good reason
or special cause why it should not be held to its agreement to submit to
the agreed jurisdiction; and if it cannot do so, there seems no reason why
the English court should entertain parallel proceedings here, with their
attendant evils – duplication of expense and the danger of inconsistent
decisions. In the present case, however, there is no reliance by Mr L.
on anything unforeseen, no suggestion of any strong or special cause,
no identification of some matter which lies beyond considerations of
convenience and goes to a matter of justice. On the contrary, what this
court has been pressed with, like Longmore J below, are the usual and
straightforward factors of an argument on convenience – the nature of
the issues, the relevance of English as against Texan or New York law,
the whereabouts and nationality of witnesses of fact or expertise, cost
and delay, and such like. The balancing of such factors, however, are
essentially a matter for the judge’s discretion, and there has been no
suggestion, other than the arguments which I have dealt with above, as
to why Longmore J’s disposal of his discretion was in some way at fault
such as to render it susceptible to review or to call for the exercise of a
fresh discretion in this court.
63. Therefore I see nothing different or special about this case to
distinguish it from the approach taken by this court to the service of
suit clause in Excess Insurance v. Allendale. In reaching this conclusion,
however, I would briefly mention two factors which arise from the
language of the clause, but which have not been made the subject of
particular submission or evidence. I refer to the wording from the clause:
“at the request of the Insured (or Reinsured)”; and “a Court of competent
jurisdiction”. There is I believe no evidence before the court, or none at
any rate which has been brought to its attention, to the effect that A.
was requested to submit to the jurisdiction of the Texan state court in
Harris County. However, no point has been made as to this requirement,
perhaps because it is common ground that it has been fulfilled, or perhaps
because the mere service of the Texan proceedings amounts to such a
request within the meaning of the clause. I therefore say nothing more
about it, other than this. Until ZIC’s request pursuant to the clause, there
could be no complaint, based on the clause, about A. proceeding in this
court. Therefore, on my understanding of the evidence, there could have
been no challenge to the English action prior to the commencement of the
Texan action on 28 April 2000 and communication of that fact to A.. By
that time this action had been in being for nearly 9 months, albeit it had
made little progress. Clearly, the longer that an English action had been
in progress, and the more advanced it had become, before the service
of suit clause should have been invoked, the weaker, potentially, is the
case for staying the earlier case in favour of the later. However, no special
feature has been made of this point in this case.
64. The second requirement, of a court of competent jurisdiction, is
perhaps an unusual feature of the clause. Frequently a jurisdiction clause
will simply seek to render the agreed forum competent by means of
its own stipulation. Thus in English law there is generally no difficulty
about an English jurisdiction clause being given its effect, even if the
parties and their dispute have no other connection with England. Of
course, the English court has a residual discretion even so to stay
proceedings brought pursuant to such a clause, on the grounds of forum
non conveniens. That, however, is not to say that the court was not
competent to hear the matter.
65. In the present case there is neither submission nor evidence from
A. that the Texan state court is not a court of competent jurisdiction.
The respondents’ evidence reveals that at one stage A. had removed the
Texan state court action into the federal district court for the Southern
District of Texas, on the basis of diversity of citizenship. ZIC and ZAIC
had responded by applying to remand their action back into the state
court on the basis of lack of subject matter jurisdiction in the federal
court. That application went unopposed by A. and the motion to remand
was granted, on 27 June 2000. Reference is made in the papers in the
federal court to some intention on the part of A. to challenge in personam
jurisdiction in the state court after the case was remanded. However,
nothing whatsoever is known about the basis of that challenge, or its
progress. There is no reason therefore to think that the Texan state court
is not a court of competent jurisdiction. In Excess Insurance v. Allendale
Hobhouse LJ made a similar point when he said that the proceedings
in the Rhode Island court had been properly started as a matter of
jurisdiction and that no one had argued to the contrary. Even so, the
court of appeal in that case had been told that within the last twenty-four
hours the reinsurer there had filed a motion in the Rhode Island court to
stay the claim there on the ground of forum non conveniens. As to that,
Hobhouse LJ said that it was for the judge in Rhode Island to determine
that application. Whatever may be the status of any challenge to the
jurisdiction of the Texan state court in the present case must similarly
be a matter for that court. That issue has simply not entered into the
debate on this appeal. What the position might be if a reinsurer sought
in England to dispute the effectiveness of the service of suit clause by
raising a challenge to the competency of a court in the United States must
await that argument. Similarly, what might happen if ultimately the Texan
state court should decline jurisdiction over A. would lie in the future: a
possibility is that A. might then apply for the stay of these proceedings to
be lifted.
66. For these reasons, I would reject the second limb of Mr Layton’s
attack on Longmore J’s conclusion that these proceedings should be
stayed on the ground of forum non conveniens.
Conclusion
67. It follows that this appeal should in my judgment be dismissed.
MR JUSTICE JACOB:
68. I agree.
LORD JUSTICE KENNEDY:
69. I also agree.
Order:
1. Subject to the following provisions of this order the appeal be
dismissed:
2. Paragraphs (1), (2) and (3) of the order of Mr Justice Longmore
be replaced by an order that the action be stayed as against the First
Defendant and service of the amended Claim Form on the Second
Defendant be set aside;
3. The Appellant to pay the costs of this appeal, to be the subject of a
detailed assessment;
4. The Appellants’ application to appeal to the House of Lords be
dismissed.
(This order does not form part of approved judgment