PIL instrument(s)

Case number and/or case name

Royal & Sun Alliance Insurance plc & Ors v Rolls-Royce plc [2010] EWHC 1869 (Comm)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

21 July 2010

Appeal history

CJEU's case law cited by the court

Summary

The claimants, Royal & Sun, are insurers. The dispute between them, and the insured, Rolls-Royce, was with regard to the issue of indemnity under a policy of insurance. On 8th April 2009, Rolls-Royce filed a complaint in Florida, US, seeking a declaration that they were entitled to an indemnity. In June 2009, Royal & Sun brought a claim before the English court, seeking a non-liability declaration. The issue before the parties was whether there dispute should be heard and determined in England or Florida. In this context, the Owusu point was considered, but not fully addressed, by the English court. The English court refused the application for a stay on a ground of forum non-conveniens, though. Mr Justice Blair made the following observation: “16 It is clear that the full ramifications of the Owusu decision have yet to be worked out. The impact appears to arise particularly as regards common law Member States like England, which recognise the doctrine of forum non conveniens. It was held in Winnetka Trading Corp v Julius Baer International Ltd [2008] EWHC 3146 (Ch) by Norris J that Owusu did not prevent the stay of proceedings in England where there is a jurisdiction clause in favour of a non-Member State. There is no exclusive jurisdiction clause in the insurance policy in the present case. Though judgment was delivered by the ECJ in Owusu on 1 March 2005, first instance decisions on the question at issue on this application go both ways, and the question appears to remain undecided at the appellate level. In Catalyst Investment Group Ltd v Lewinsohn [2010] Ch 218 Barling J held that Article 27 of the Regulation could not be applied reflexively and that there was no jurisdiction to stay proceedings in a Member State in favour of prior proceedings in a non-Member State. A contrary conclusion was reached in JKN v JCN [2010] EWHC 843 (Fam) by Deputy Judge Theis QC. In Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2008] IEHC 90 Clarke J decided that a court in Ireland retains and must exercise a jurisdiction conferred upon it by Article 2, notwithstanding the fact that there may be proceedings in a non-Member State which are first in time. On appeal, this question was referred to the ECJ ([2009] IESC 7), but the case was resolved prior to the reference being heard.” [16].