FARADAY REINSURANCE CO LTD V HOWDEN NORTH AMERICA INC AND ANR

[2011] EWHC 2837 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Beatson, 1 November 2011

Insurance (products liability) - Conflict of laws - Jurisdiction - Whether dispute under policy covering US liabilities should be heard in England - Jurisdiction - Applicable law - Whether England the most convenient forum - CPR Practice Direction 6B, para 3.1(6)

The defendant assured, HNA, obtained cover for asbestos liabilities under three consecutive excess of loss policies written by Faraday. The second and third policies were governed by UK law (which the court held to mean English law) and were subject to non-exclusive English jurisdiction, but the first policy was silent on both points. Proceedings were brought against HNA in 1999, and HNA commenced proceedings against US insurers in 2003 and again in 2009. In August 2010 NHA notified Faraday that no claims were being made against it at this stage, although they might be at some future point. In December 2010 Faraday issued a claim form seeking a declaration that the policies were governed by English law, and obtained permission to serve the claim form outside the jurisdiction but this was not served until 1 June 2011. Thereafter Faraday was made a defendant in the US proceedings. In the present case HNA sought to have permission for service out set aside.