Aon UK Ltd v Lamia Corporation Srl & Others
| Jurisdiction | England & Wales |
| Judge | Mr Simon Salzedo |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3323 (Comm) |
| Docket Number | Case Nos: CL-2020-000467 |
| Court | King's Bench Division (Commercial Court) |
[2022] EWHC 3323 (Comm)
Mr Simon Salzedo KC
(sitting as a Judge of the High Court)
Case Nos: CL-2020-000467
CL-2020-000522
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Rolls Building, Fetter Lane, London, EC4A 1NL
Andrew Mitchell KC and Laura Newton, instructed by CMS Cameron McKenna Nabarro Olswang LLP, for the Claimant in claim number CL-2020-00046
Richard Southern KC and Koye Akoni, instructed by DLA Piper UK LLP, for the Claimants in claim number CL-2020-000522
Ben Elkington KC and Ben Smiley, instructed by Penningtons Manches Cooper LLP, for the 6th to the 48th Defendants in claim number CL-2020-000467 and the 7th to 49 th Defendants in claim number CL-2020-000522
Hearing dates: 20 – 21 September 2022
Approved judgment
This judgment was handed down remotely at 10.30am on 21 st December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Simon Salzedo KC (sitting as a Judge of the High Court):
I have heard argument at the return date for applications for interlocutory anti-suit injunctions (the “ Applications”) made by the claimants in each of these two actions, in which final anti-suit relief is amongst the relief claimed.
The Parties
In Claim No CL-2020-000467 (the “ Aon Action”), the 6 th to the 48 th defendants are certain individuals (the “ Individuals”) who are also the 7 th to 49 th defendants in Claim No CL-2020-000522 (the “ TMK Action”).
These 43 Individuals include the only six survivors of an aeroplane crash (the “ Accident”) in which another 71 persons died. The other 37 Individuals are personal representatives of some of the deceased. The Accident occurred in the early hours of 29 November 2016 when LaMia Flight CP 2933 from Viru Viru International Airport, Bolivia (the “ Aircraft”) crashed into mountainous terrain a few kilometres from its intended landing at Jose Maria Cordoba International Airport in Colombia. In short, the Aircraft ran out of fuel and subsequent investigations have suggested that management and flight crew of LaMia Corporation SRL (“ LaMia”) were at fault in permitting this to occur and in failing to declare an emergency in time to save the situation.
LaMia is the first defendant in the Aon Action and the second defendant in the TMK Action. LaMia's civil liabilities during the period from 10 April 2016 to 10 April 2017 were insured under AVN1-C Policy No. 2000046 issued on 12 May 2016 (the “ Insurance Policy”). The insurer under the Insurance Policy was Bisa Seguros y Reaseguros SA (“ Bisa”), which is the first defendant in the TMK action.
At least in formal contractual terms, the Insurance Policy was placed with Bisa by LaMia's broker, Estratégica SRL Corredores de Seguros y Reaseguros (“ Estratégica”).
The Insurance Policy was 100% facultatively reinsured under Policy No. AF1639901 (the “ Reinsurance Policy”). The Reinsurance Policy was underwritten by a panel of 13 London underwriters who are the claimants in the TMK Action (the “ Reinsurers”) led by Tokio Marine Kiln syndicate 0510 at Lloyd's (“ TMK”).
The Reinsurance Policy was placed (again, at least in formal contractual terms) by Bisa through its local broker Aon Benfield Argentina SA (“ Aon BA”) and the wholesale broker in London, Aon UK Limited (“ Aon”). Aon is the claimant in the Aon Action.
Both Policies had an aggregate limit of indemnity of USD 25 million and both were governed by Bolivian law and subject to the exclusive jurisdiction of the courts of Bolivia. They were on back to back terms generally and it has been suggested (though I make no finding about this) that the arrangements could be described as fronting.
Aon and the Reinsurers apply for anti-suit injunctive relief against the Individuals in the circumstances I will describe in more detail below. The other defendants to the two Actions were not represented before me though I was informed that they were aware of the Applications.
Those other defendants to both Actions (the “ Other Defendants”) are: (i) LaMia CA, an associated company of LaMia, which was also an insured under the Insurance Policy; (ii) Kite Air Corporation Limited (“ Kite”) which owned the Aircraft; (iii) Mr Albacete, who is said to have owned Kite; (iv) Mr Rocha, who is said to have been an officer of LaMia. In addition, Bisa is a defendant to the TMK Action.
Facts and procedural history
On 30 March 2016, Ms Loredana Albacete of LaMia (“ Ms Albacete”, who was Mr Albacete's daughter) wrote by email to Mr Simon Kaye of Aon asking about the possibility of per trip insurance for a flight transporting a football team from Bolivia to Venezuela and back. Mr Kaye promised to approach underwriters, but noted that before they would offer terms underwriters would require a satisfactory proposal concerning LaMia's debt arising from unpaid premiums under earlier insurances. The emails suggest that LaMia was short of funds and looking to perform this one flight in the hope of winning more business from the same source and thus, from the sound of the emails, be able to return to operating generally. The emails also make clear that it was urgent to obtain cover if the potential contract was to be taken up by LaMia.
On 5 April 2016, LaMia paid the outstanding premiums and there was email correspondence involving Estratégica as well as Aon. LaMia made clear that it wished to take the minimum level of cover that was compatible with applicable regulations in order to keep the premium to the lowest possible level. At one point (on 5 April 2016), Mr Kaye advised Estratégica that the US Department of Transport would require a limit of at least USD 41,375,000, which would mean LaMia should purchase cover with a limit of USD 50 million, adding “ however, we would always recommend that they purchase the highest limit they can”.
A quotation was obtained from AIG on 6 April 2016, but LaMia considered it to be too expensive and asked Aon (both directly and through Estratégica) to seek more competitive terms. Later that day, Aon reported to LaMia that it had provided an alternative quote to Estratégica. Estratégica in turn reported to LaMia on available terms for a liability only policy, which might suffice to enable LaMia to take on the immediate contract. LaMia responded (to Estratégica, copying Aon) asking if the terms could ensure that the crew was covered and that war hull risk was included, but also asking if the premium could be reduced by reducing the limit of cover from US$ 50 million to US$ 25 million. Aon (through Mr Kaye) replied on 7 April 2016 stating that they would discuss with underwriters and seek to formalise the quote.
In an email on 7 April 2016 timed at 15:20, Mr Kaye of Aon wrote to Ms Albacete of LaMia as follows:
“For our compliance purposes, please kindly review the Important Information detailed below which is applicable to any placement effected via the Aon Global Broking Centre London. … Important Information We would like to draw your attention to the Client Information Document and Terms of Business Agreement (TOBA) attached.”
The email attached a document entitled “Terms of Business Agreement”, version 11.1 dated July 2015, (the “ TOBA”). The evidence suggests that a similar TOBA had been sent to Ms Albacete in March 2015 and that earlier versions had also been sent to LaMia in earlier years.
The TOBA included the following provisions:
“ 0. Introduction
0.3 These are our terms of business which together with any schedules, demands and needs statement and service level agreement shall govern our appointment by you. These terms of business apply to all Services (defined under the section below headed “Our Services”) that we provide to you after these terms of business come into force, including any future Services provided in connection with insurance contracts that were placed by us, or any subsidiary of Aon plc (“Aon Group Member”), for you before these terms of business came into force.
0.4 If you have any questions about these terms of business, in particular in relation to the “Our Obligations and Liability to You” clause set out below, please raise them with us within 30 days, otherwise we will assume you are in agreement with them. To the extent that you do not respond, your agreement will be deemed to have been given by the continuation of your normal business relationship with Aon UK Limited.
0.5 Our permitted business is advising customers on insurance contracts (recommending specific insurance policies to customers); arranging (bringing about) deals in insurance contracts (e.g. introducing a customer to an insurer); making arrangements with a view to transactions in insurance contracts (e.g. helping a customer to fill in a proposal form); dealing as agent in insurance contracts (entering into an insurance contract with a customer on behalf of an insurer); assisting in the administration and performance of an insurance contract (e.g. notifying insurance claims to an insurer and negotiating settlement of the claim on a customer's behalf); and agreeing to carry on any of the above regulated activities.
…
1 Client
1.1 These terms of business shall apply to you and to each member of your company, practice, partnership and/or any other legal and/or natural person who is either entitled as a matter of law to rely on the Services or we have agreed in writing may rely on the Services (“you/your”). You warrant that you have authority to enter into these terms of business on your own behalf and on behalf of the said members and persons (each a “Beneficiary”). If we place reinsurance for you, then where we refer in...
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...per Lord Bingham.” 29 The essential principles are the same whether the Court is granting interim or final relief, see Aon UK Limited v Lamia Corporation SRL [2022] EWHC 3323 (Comm) 1 at [95]: “The legal principles governing this primary basis for Aon's application were largely common grou......