AON UK LTD V LAMIA CORPORATION SRL AND OTHERS: TOKIO MARINE KILN SYNDICATES LTD AND OTHERS V BISA SEGUROS Y REASEGUROS AND OTHERS

[2022] EWHC 3323 (Comm), King’s Bench Division, Commercial Court, Simon Salzedo KC (sitting as a High Court Judge), 21 December 2022

Reinsurance – Conflict of laws – Anti-suit injunction – Quasi-contractual claim against brokers – Whether claim under Florida law against reinsurers vexatious and oppressive

In November 2016, a flight operated by LaMia Corporation SRL departing from Bolivia and heading to Colombia, carrying a Brazilian football team, crashed into mountainous terrain a few kilometres from the destination. 71 passengers were killed and there were only six survivors. The aircraft ran out of fuel, and subsequent investigations suggested that the management and flight crew of LaMia were at fault in permitting this to occur and in failing to declare an emergency in time to save the situation. Claims were brought against LaMia. LaMia was insured by Bisa, and Bisa was reinsured 100 per cent by a number of Reinsurers on back-to-back terms. The aggregate limit under both contracts was US$25 million. The reinsurance was placed by brokers Aon, and Aon had also assisted with the placement of the insurance under the terms of a terms of business agreement (TOBA) with Bisa which contained a non-assignment provision and stated also that it was governed by English law with the English courts having exclusive jurisdiction over all disputes. By a Deed of Release dated 20 February 2017 Bisa and the Reinsurers agreed that Bisa would decline coverage under the insurance, but the Reinsurers would establish and administer, without any admission of liability, a humanitarian assistance fund of US$25 million for the benefit of the victims. The Deed was governed by English law, subject to the exclusive jurisdiction of the English courts and stated that Bisa would not commence any proceedings against the Reinsurers and would indemnify the Reinsurers against any proceedings that might be commenced under or with respect to the Reinsurance Policy. Bisa duly declined liability under the insurance. Proceedings were commenced by the victims’ families in Florida. A claim against LaMia was settled in August 2020 under a settlement agreement under which LaMia assigned its rights against Aon to the victims. In August 2020 the victims commenced proceedings against the Reinsurers under Florida law seeking damages of US$844,100,000 on the basis that the Reinsurers had in bad faith failed to defend LaMia in the Florida proceedings. By April 2021 both Aon and the Reinsurers obtained interim anti-suit injunctions against the victims, preventing them from maintaining or continuing proceedings in Florida. The application in the present case was for continuation of the injunctions.