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INSURANCE LITIGATION UNDER THE RECAST BRUSSELS REGULATION

Lloyd's Maritime and Commercial Law Quarterly

INSURANCE LITIGATION UNDER THE RECAST BRUSSELS REGULATION Patrick Dunn-Walsh * Aspen v Credit Europe The Supreme Court’s recent decision in Aspen Underwriting Ltd v Credit Europe Bank NV (The Atlantik Confidence) 1 provides a welcome reminder of the limitations of recitals in interpreting the Recast Brussels Regulation. 2 In a unanimous judgment (delivered by Lord Hodge), a seven-Justice panel of the Supreme Court 3 agreed on the majority of the issues with the judgments of Teare J (at first instance) 4 and of the Court of Appeal (delivered by Gross LJ). 5 However, it allowed the defendant bank’s appeal as regards the UK court’s (lack of) jurisdiction to try the claims brought against it. In the process, the Court rejected what Teare J had described as a particularly robust use of a recital, which he and the Court of Appeal had relied on to carve out an exception to the application of Section 3 of the Regulation, concerning matters relating to insurance. The consequence was that all of the underwriters’ claims against the Bank fell to be tried in the Netherlands, and an unwieldy bifurcation of claims in tort and unjust enrichment was avoided. The case arose from the sinking of the Atlantik Confidence off the coast of Oman following a fire. The vessel was valued at US$22m under its hull and * Barrister, 20 Essex Street, London. 1. [2020] UKSC 11; [2020] 1 Lloyd’s Rep 520; [2020] 2 WLR 919. 2. Regulation (EU) 1215/2012. 3. Lady Hale, Lords Reed, Kerr, Hodge, Lloyd-Jones, Kitchin and Sales. 4. [2017] EWHC 1904 (Comm); [2017] 2 Lloyd’s Rep 295. 5. [2018] EWCA Civ 2590; [2019] 1 Lloyd’s Rep 221. Moylan and Coulson LJJ simply agreed with Gross LJ. 28

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