"13. My interpretation of the state of the law and the three limb test is straightforwardly as follows: (i) In limb (i) the Court must decide if it can who has the better of the case. If it decides that the Claimant has the better of the case, he will have a good arguable case or a plausible evidential basis. If the defendant has the better of the case then the Claimant fails. (ii) Limbs (ii) and (iii). The judge may have to struggle because at the jurisdiction stage the evidence may be wholly uncertain and insufficient and, in particular, because there has been no testing of that evidence by cross-examination or otherwise, and usually no adequate disclosure of documents by either side. He or she may not be able to reach even a provisional conclusion as to which party has the better case, and even if the judge tried to do so he or she may well turn out to be wrong. In such a circumstance where the judge cannot decide, after conscientiously doing his or her best, who has the better of the case, then it is sufficient if the Claimant has a plausible evidential basis and that will suffice for a good arguable case."
"64. In summary: i) The onus is on ING to establish that they have a "good arguable case" that the English court has jurisdiction. ii) The burden is on them to show that it has the "better argument on the material available" (making due allowance for the limitations of the material available at an early stage of the case). iii) The standard is, for the purposes of the evidential analysis, between proof on the balance of probabilities (which is not the test) and the mere raising of an issue (which is not the test either). iv) The test is context specific and flexible and, if there is an issue of fact, the court must use judicial common sense and pragmatism , [5] not least because the exercise is to be conducted with due despatch."
"(13) There must be a connection between proceedings to which this Regulation applies and the territory of the Member States. Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a Member State……. (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. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction."
"(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."
"Article 62 1. In order to determine whether a party is domiciled in the Member State whose courts are seized of a matter, the court shall apply its internal law."
"(6) In the case of an individual who— (a) is resident in the United Kingdom, or in a particular part of the United Kingdom; and (b) has been so resident for the last three months or more, the requirements of sub-paragraph (2)(b) or, as the case may be, sub-paragraph (3)(b) shall be presumed to be fulfilled unless the contrary is proved."
"44. From the above cases, I would identify the following propositions:- (1) It is possible for a defendant to reside in more than one jurisdiction at the same time. (2) It is possible for England to be a jurisdiction in which a defendant resides even if it is not his principal place of residence (ie even if he spends most of the year in another jurisdiction). (3) A person will be resident in England if England is for him a settled or usual place of abode. A settled or usual place of abode connotes some degree of permanence or continuity. (4) Residence is not to be judged according to a "numbers game" and it is appropriate to address the quality and nature of a defendant's visits to the jurisdiction. (5) Whether a defendant's use of a property characterises it as his or her "residence", that is to say the defendant can fairly be described as residing there, is a question of fact and degree. (6) In deciding whether a defendant is resident here, regard should be had to any settled pattern of the defendant's life in terms of his presence in England and the reasons for the same. (7) If a defendant visits a property in England on a regular basis for not inconsiderable periods of time, where his wife and children live, in order to see his wife and children (including where the centre of the defendant's relationship with his children is 20 England), such property has the potential to be regarded as the family home or his home when in England, which itself is evidence which may go towards supporting the conclusion that England is for him a settled or usual place of abode, and that he is resident in England, albeit that ultimately it is a question of fact and degree whether he is resident here or not, having regard to all the facts of the case including any discernible settled pattern of the defendant's life or as it has also been put according to the way in which a man's life is usually ordered."
"29. I do not accept Mr Jacob's submission that, in determining whether a residence is a "usual" residence withinCPR 6.9 , the test to be applied is essentially one of merely comparing the duration of periods of occupation, taking little account of the nature or "quality" of use of the premises, and ignoring altogether that the premises are occupied permanently by the defendant's family and that the premises can fairly be described as the family home. Mr Jacob's suggested approach is too narrow and artificial. I agree with Mr Peter Shaw, counsel for Relfo, that the critical test is the defendant's pattern of life. In Levene v Commissioners of Inland Revenue[1928] AC 217 the House of Lords considered whether the taxpayer was "ordinarily resident" for the purposes of income tax. Viscount Cave LC said at page 225: "
"… Despite the requirement to give a restrictive interpretation to provisions which are exceptions to the domiciliary rule of general jurisdiction, there is no reason to suppose that it excludes claims which deny the existence or validity of a disputed contract………….. The natural interpretation of the policy which justified this provision is that disputes concerning a contract and its enforceability which may or may not be disputed, should gain the benefit of this provision. Any narrower interpretation would damage the proper interests of the weaker party."
"21 In order to determine the nature of the civil liability claims brought before the referring court, it is important first to check whether they are, regardless of their classification under national law , contractual in nature (see, to that effect,Case C-167/00 Henkel[2002] ECR I-8111 , paragraph 37)."
"26 It is therefore for the referring court to determine whether the purpose of the claims brought by the applicant in the case in the main proceedings is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract which binds the parties in the main proceedings, which would make its taking into account indispensable in deciding the action. 27 If that is the case, those claims concern 'matters relating to a contract' within the meaning of Article 5(1)(a) of Regulation No 44/2001. Otherwise, they must be considered as falling under 'matters relating to tort, delict or quasi-delict' within the meaning of Article 5(3) of Regulation No 44/2001."
"13 For the purpose of answering that question, it is necessary to bear in mind the principle, established by case-law ……….according to which the concepts used in the Convention, which may have a different content depending on the national law of the Contracting States, must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that the Convention is uniformly applied in all the Contracting States. This rule must apply, in particular, to the concept of "consumer" within the meaning of Article 13 et seq. of the Convention, in so far as that concept is the principal factor in the determination of rules governing jurisdiction."
"44. In contrast, where the statutory assignee of the rights of the directly injured party may himself be considered to be a weaker party, such an assignee should be able to benefit from special rules on the jurisdiction of courts laid down in those provisions. This is particularly the situation, as the Spanish Government states, of the heirs of the person injured in an accident."
"AG28. As a preliminary terminological remark common to the entire argument, I wish to stress that in this Opinion, I use the term "subrogation" in a general, neutral way, as generically referring to all kinds of legal "substitution". 7 It simply captures the situation of a person who steps into another person's shoes to enforce rights or assume obligations ."
"AG96. First, the Court has indeed already had the opportunity to examine whether the forum actoris of consumers is applicable to assignees of consumer claims that are not themselves parties to a contract. In the Henkel and Shearson Lehman Hutton judgments, the Court found that the special consumer jurisdiction was not applicable to legal persons acting as assignees of the rights of a consumer. However, the Court arrived at that conclusion not only because, as the applicant submits, those legal persons (a private company and a consumers' association) were not "weaker parties", but also, as clearly stated in both decisions, because those persons were not themselves parties to the contract. AG97. Secondly, according to the applicant, the case law of the Court relies on an abstract need of consumer protection as the determining element for establishing the forum, irrespective of the assigned nature of claims. In this regard, both the Austrian Government and the applicant have referred to the Court's judgment in Vorarlberger Gebietskrankenkasse , where it was stated that contrary to the social security institutions, "where the statutory assignee of the rights of the directly injured party may himself be considered to be a weaker party, such an assignee should be able to benefit from special rules on the jurisdiction of courts laid down in those provisions. This is particularly the situation … of the heirs of the person injured in an accident"
"35. First, it is to my mind important to note that the title to section 3 "
"…..The wording of both art.15 and art.16 of Regulation 44/2001 clearly stresses the importance of the identity of the parties to the concrete contractual relationship in the determination of the applicability of those provisions…."
"…..the CJEU in its jurisprudence has set its face against a case by case analysis of the relative strength or weakness of contracting parties as that would militate against legal certainty…."
"The injured party or his heirs will have direct action against the insurer to demand the fulfilment of the obligation to compensate, without prejudice to the insurer's right to repeat against the insured person, in the event that it is due to the malicious conduct of the latter, the damage or harm caused to a third party. The direct action is immune from the exceptions that may correspond to the insurer against the insured person. The insurer can, nevertheless, enforce the exclusive fault of the injured party and the personal defences that he has against the latter. For the purposes of the exercise of the direct action, the insured person is obliged to inform the injured third party or his heirs of the existence of the insurance contract and its content."
"Thus, the principle of party autonomy enables the policyholder, the weakest party to the contract, to waive either of the two forms of protection afforded by the Brussels Convention . However, by virtue of the overriding aim of protecting the economically weakest party, that autonomy does not extend so far as to allow such a policyholder to waive entitlement to the jurisdiction of the courts of his domicile. As the weakest party, he must not be discouraged from suing by being compelled to bring his action before the courts in the State in which the other party to the contract is domiciled."
"38. Consequently, a jurisdiction clause based onArt.12(3) of the Convention cannot in any event be accepted as enforceable against a beneficiary unless it does not undermine the aim of protecting the economically weakest party. 39. As the Advocate General observed in points AG62 and AG67 of his Opinion, the enforceability of such a clause would have serious repercussions for a third-party beneficiary domiciled in another contracting state. First, it would deprive that insured of the opportunity to bring proceedings before the courts for the place where the harmful event occurred or to bring proceedings before the courts of his own domicile, by compelling him to pursue the enforcement of his rights against the insurer before the courts of the latter's domicile. Secondly, it would enable the insurer, in proceedings against the beneficiary, to have recourse to the courts of his own domicile. 40. The result of such an interpretation would be to accept a conferral of jurisdiction for the benefit of the insurer and to disregard the aim of protecting the economically weakest party, in this case the beneficiary, who must be entitled to bring proceedings and defend himself before the courts of his own domicile."
"33. As regards whether an agreement on jurisdiction may be invoked against the victim of damage, it is apparent, firstly, that, under art.13, Point 5, of Regulation 44/2001, read in conjunction with art.14 , Point 2(a), thereof, it is possible to derogate by such an agreement from the provisions of s.3 of that Regulation, in particular in the case of insurance contracts covering all liabilities arising from the use or operation of vessels. 34. Secondly, it is not in dispute that art.11(2) of Regulation 44/2001, pursuant to which arts 8, 9 and 10 of that Regulation apply to direct actions brought by a victim against an insurer, does not refer to arts 13 and 14 of that Regulation and, accordingly, agreements of prorogation of jurisdiction. 35. It is therefore not apparent from the scheme of the provisions of Ch.II, s.3, of Regulation 44/2001 that an agreement on jurisdiction may be invoked against a victim. 36. In that regard, the Court has previously noted that, in matters of insurance, prorogation of jurisdiction is strictly circumscribed by the aim of protecting the economically weaker party (see, to that effect, judgment of12 May 2005 , Société financière et industrielle du Peloux (C-112/03) [2005] ILPr 32 , [31]). 37. Thus, art.13 of Regulation 44/2001 lists exhaustively the cases in which the parties may derogate from the rules laid down in its Ch.II, s.3."
" this policy will only cover claims submitted within Spanish jurisdiction for events that taken place in Spain leading to liability or other obligations imposed in accordance with the legal provisions in force within the territory of Spain."
"83. Article 15 is concerned with an agreement between a liability insurer and an insured who are domiciled or habitually resident in the same Member State " which has the effect of conferring jurisdiction on the courts of that state"
"98. At this stage, I find Mr Villacorta's argument far more persuasive. The object of liability insurance is the legal liability of the assured to pay compensation to third parties arising from a specified event or occurrence, and that liability will not be defined by the place where the injured party makes his claim. In fact, it will already have arisen before any claim is made. It is highly artificial to define the insured risk as "the risk of being liable to pay a Spanish judgment" or "the risk of being liable to pay a claim made in Spain" rather than "the risk of being liable to pay damages under Spanish law for an event that happened in Spain"."
"6. GEOGRAPHICAL LIMITATION The guarantee under this policy includes the liability of the insured derived from acts performed or damages caused within the geographic scope specified under the Specific Terms and Conditions, insofar as the claim is filed with the Spanish courts and pursuant to the Spanish law. Any indemnity and cost arising from this insurance shall be always paid in euros and in Spain. …….. This insurance guarantee is applicable and limited to the liability derived from damages caused within the Spanish territory and claimed or recognised by the Spanish courts as per the Spanish legal system."
"82. …………….Mr Doherty was constrained to accept that the substantive effect of the clause would be to compel an injured party with a direct right of action against Mapfre under Spanish law in respect of an accident in Spain for which Mapfre's insured is potentially liable in Spanish law, to sue both the insured and the insurer in Spain. If he did not bring the proceedings in Spain, he would lose his direct right of action. He would not be able to pursue a direct action against the insurer alone in the courts of his own domicile, or pursue claims against both insured and insurer there, as Mr Hutchinson has sought to do."