Insurance Law Monthly

Covid-19 test cases are now being decided in common law jurisdictions. The South African courts have reached decisions in Café Chameleon CC v Guardrisk Insurance Co Ltd [2020] ZASCA 173, Ma-Afrika Hotels (Pty) Ltd v Santam Ltd [2020] ZAWCHC 160 and Interfax (Pty) Ltd v Old Mutual Insure Ltd [2020] ZAWCHC 166. Café Chameleon at first instance pre-dated the Divisional Court’s ruling in FCA v Arch Insurance [2020] Lloyd’s Rep IR 527 and was decided on causation grounds. Ma-Afrika Hotels and Interfax both post-dated the UK decision and adopted much of the same reasoning.

In Re Society of Lloyd’s and Lloyd’s Insurance Co SA [2020] EWHC 3266 (Ch) Snowden J approved the arrangements put in place by Lloyd’s to deal with the removal of passporting rights with effect from 1 January 2021 by Brexit. The judgment clearly sets out how the new scheme is to work. The most important issue was the impact of the proposed Scheme on existing reinsurance arrangements, and the judgment contains interesting analysis of the nature of reinsurance agreements.

In Axis Corporate Capital UK II Ltd v Absa Group Ltd [2021] EWHC 861 (Comm) Nicholas Vineall QC, sitting as a Deputy Judge of the High Court, was faced with applications by reinsurers for anti-suit injunctions against an insurer bringing claims against them in South Africa. There were several different layers of reinsurance, each subject to different and poorly drafted jurisdiction provisions. The questions for the court were the meanings of those provisions and whether to grant injunctive relief in circumstances where the provisions had different effects for different layers of the reinsurance.