Geoff Hill v Generali Biztositó ZRT
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 14 December 2021 |
| Neutral Citation | [2021] EWHC 3381 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Appeal Ref: BM00093A |
[2021] EWHC 3381 (QB)
IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE BIRMINGHAM
ON APPEAL FROM THE COUNTY COURT AT TELFORD
(HIS HONOUR JUDGE RAWLINGS)
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
THE HONOURABLE Mr Justice Pepperall
Appeal Ref: BM00093A
Bernard Doherty (instructed by DAC Beachcroft Claims Ltd) for the Appellant
Tom Collins (instructed by Hudgells Solicitors) for the Respondent
Hearing date: 30 November 2021
Approved judgment
I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
The issue in this appeal is whether a subrogated claim by an insurer can be brought in the name of an English motorist in an English court together with his claim for uninsured losses against a Hungarian insurer in respect of a pre-Brexit accident in Germany. The judge below held that it could not but acknowledged that the question was not free from doubt and granted the motorist permission to appeal.
The issue arises in a low-value claim proceeding in the County Court. When the case was argued before the judge, it was thought that it might be of some wider significance. I am told that there may be a number of cases awaiting the resolution of this issue. That may be so, but I am sceptical as to the true importance of the issue given that it has not troubled the senior courts before now and the proper application of EU law in England & Wales is now a matter of historical interest.
THE COUNTY COURT PROCEEDINGS
Geoff Hill is domiciled in England. On 18 December 2018, he was driving his car on a German autobahn when it was damaged in a collision with a car insured by the Hungarian insurer, Generali Biztositó Zrt. By this claim, Mr Hill sues Generali for the alleged repair costs of £4,073.27. His Particulars of Claim break his claim down into his uninsured loss of £350 (being the excess payable under his insurance policy) and his insured loss of £3,723.27 (being the balance of the repair costs that were paid by his motor insurer, Admiral Insurance). The claim is therefore brought both for his own benefit and in order to pursue Admiral's subrogated claim.
By an application dated 15 January 2020, Generali disputed the English court's jurisdiction in respect of the subrogated claim. Its application was heard by His Honour Judge Rawlings on 15 May 2020. By a reserved judgment handed down on 4 August 2020, the judge declared that the court had no jurisdiction in respect of the subrogated claim. Accordingly, he stayed that claim. Further, he stayed the balance of the claim for the recovery of the excess until 21 days after the determination of any appeal from his ruling.
THE RECAST REGULATION
The United Kingdom was of course a Member State of the European Union at the time of Mr Hill's accident and accordingly the question of jurisdiction is governed by the Recast Regulation (EU) No. 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil & Commercial Matters. The starting point is that Generali must be sued in Hungary or Germany:
5.1 Article 4(1) provides that persons domiciled in a Member State should be sued in the courts of that state.
5.2 Article 5(1) provides that such persons can only be sued in the courts of another Member State by virtue of the rules set out in Sections 2 to 7 of Chapter II of the Regulation.
5.3 Article 7(2) (which is within Section 2) provides that a person domiciled in one Member State might also be sued in tort in the Member State in which the “harmful event” occurred.
Article 10 provides that in matters relating to insurance, jurisdiction shall, with exceptions not relevant to this case, be determined by the rules in Section 3. Article 11(1) (which is within Section 3) then provides:
“An insurer domiciled in a Member State may be sued:
(a) in the courts of the Member State in which he is domiciled;
(b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the claimant is domiciled; or
(c) if he is a co-insurer, in the courts of a Member State in which proceedings are brought against the leading insurer.”
In addition:
7.1 Article 12 provides that the insurer may also be sued in the courts for the place where the “harmful event” occurred.
7.2 Article 13(2) provides that Articles 10, 11 and 12 apply to actions brought by the injured party directly against the insurer.
7.3 Article 14(1) provides that an insurer may bring proceedings only in the courts of the Member State in which the defendant is domiciled, irrespective of whether the defendant is the policyholder, the insured or a beneficiary.
Thus:
8.1 Generali can be sued in Hungary, being its place of domicile, or Germany, being the place of the accident: Arts 4(1), 7(2), 11(1)(a) and 12.
8.2 As the insured, Mr Hill can also sue Generali in England & Wales, being his place of domicile: Art. 11(1)(b).
8.3 As the insurer, and subject to being permitted to join an action already proceeding in another jurisdiction, Admiral cannot take advantage of the more favourable rules as to jurisdiction available to the policyholder, the insured and beneficiaries.
There is therefore no dispute as to Mr Hill's right to sue for his uninsured losses in England & Wales. The issue is whether Admiral's subrogated claim:
9.1 is a claim brought by the insured such that it may be pursued in England & Wales under Article 11(1)(b); or
9.2 is a claim that must be treated as brought by the insurer such that it cannot, subject to questions of joinder, be pursued in this jurisdiction.
In construing the Recast Regulation, it is necessary to consider four recitals that are pertinent to the issue in this case:
“15 The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor …
16 In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen …
18 In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.
21 In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions …”
As to these policies:
11.1 The policy of providing rules that are more favourable to weaker parties is given effect to by:
a) rules allowing the policyholder, the insured or a beneficiary to sue in his or her place of domicile (Art. 11(1)(b)), while otherwise insisting on proceedings being brought in the place of domicile of the defendant or the place of the accident (Arts 4(1), 7(2), 11(1)(a), 12 and 14);
b) provisions that protect such parties when sued from unintentionally conceding jurisdiction (Art. 26(2)); and
c) provisions that protect such parties from contracting out of the more favourable rules (Arts 15 and 31).
11.2 The policy of promoting predictability is furthered by provisions that determine when the more favourable rules are to be applied according to the class of litigant rather than by a case-specific enquiry as to whether one party is in fact weaker than another. Thus, policyholders, insured parties and beneficiaries are deemed to be weaker and gain the protection of Article 11(1)(b) regardless of whether they are private individuals or wealthy corporations, while insurance companies are deemed not to be weaker parties whatever their financial position.
11.3 The policies of allowing courts with a close connection to hear a case, of facilitating the sound administration of justice, of minimising concurrent proceedings and ensuring that irreconcilable judgments are not given, are furthered by the provisions:
a) allowing joinder of additional parties (Arts 8 and 13) and counterclaims to be pursued (Art. 14(2)) in a court in which related proceedings are already pending;
b) requiring courts to stay proceedings involving the same cause of action between the same parties in favour of the court of another Member State that was first seised of the case (Art. 29); and
c) permitting courts to stay “related” proceedings (being an action so closely connected with another action that it would be expedient to hear and determine the actions together to avoid the risk of irreconcilable judgments) in favour of the court of another Member State that was first seised of the case (Art. 30).
Not only are irreconcilable judgments undesirable, but they give rise to the risk that one or both judgments might be unenforceable:
12.1 The courts of a Member State shall refuse recognition of a judgment if it is irreconcilable with a judgment given between the same parties in that or another Member State: Art. 45(1)(c)-(d).
12.2 Where such grounds arise, the judgment shall not be enforceable: Art. 46.
THE JUDGMENT BELOW
Judge Rawlings concluded, at [44], that
“… a claim made by a directly injured party, the benefit...
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The Weekly Roundup: The Bucks Fizz Edition
...has two important case summaries for you this week, and we also bring you the news that Pepperall J, in Hill v Generali Biztosito ZRT [2021] EWHC 3381 (QB), has found on appeal that an English motorist can include in his claim against a foreign insurer a subrogated claim on behalf of his in......
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The Weekly Roundup: The Bucks Fizz Edition
...has two important case summaries for you this week, and we also bring you the news that Pepperall J, in Hill v Generali Biztosito ZRT [2021] EWHC 3381 (QB), has found on appeal that an English motorist can include in his claim against a foreign insurer a subrogated claim on behalf of his in......