Summary
Where claims are brought against defendants within and outside the jurisdiction, the court must assess the dispute in the round. It must identify the jurisdiction with the most real and substantial connection, balancing all relevant factors rather than giving automatic priority to the first proceedings or to either group of defendants. A stay requires a clearly and distinctly more appropriate alternative forum, and it must remain just to deprive the claimant of an English trial. The court may entertain negative declaratory relief where declarations would usefully determine liability, but must scrutinise the proceedings for inappropriate forum shopping. A composite insurance policy may have a single governing law; at an interlocutory stage, competing good arguable cases may prevent a final determination of that law.
Factual background
The insurers sought declarations that a claim under a global insurance policy was excluded by a warranty or by late notification. They applied in England against Sun Life UK and, with permission, Sun Life Canada. Sun Life sought a stay in favour of proceedings it had begun in the Ontario Superior Court of Justice, where it claimed policy recovery and punitive damages.
The dispute concerned the policy’s governing law, the effect of Ontario relief-from-forfeiture legislation, the factual significance of UK regulatory dealings, the location of evidence and witnesses, and the utility and propriety of the English negative declarations.
Held
- Application dismissed. The court refused to stay the proceedings against Sun Life UK and refused to set aside permission to serve Sun Life Canada out of the jurisdiction.
- Article 2 of Council Regulation 44/2001 did not, on the authorities then binding on the court, remove the English court’s power to consider a stay in favour of a non-member State. Re Harrods remained binding, having been supported by the post-UGIC Court of Appeal authorities in Ace Insurance, American Motorists and Anton Durbeck. The contrary first-instance approach in Owusu, followed in DSM Anti-Infectives, was not followed.
- For the claim against the English defendant, the applicable forum non conveniens test required Sun Life UK to show a competent alternative forum clearly and distinctly more appropriate than England, and that it would not be unjust to deprive the insurers of an English trial. The position of both defendants had to be assessed in the round, following Du Pont.
- The policy was composite and multi-partite. It was not appropriate at this stage to divide it into different governing laws for different insureds or risks. There were good arguable cases for both English and Ontario law. The court therefore deferred final determination of the applicable law, while recognising that Ontario-law evidence might be required at trial.
- Ontario law differed materially on relief from forfeiture for imperfect compliance with an insurance policy and on punitive damages. Those differences did not give Ontario a decisive advantage. The pleaded punitive-damages claim appeared unlikely to meet the Whiten threshold and was treated as having been raised in terrorem.
- The central factual investigation concerned the UK regulatory history, the knowledge of relevant UK and Canadian personnel, notification, and expenses incurred in England. The evidence, witnesses and regulatory material overall favoured England. Negative declarations would usefully determine the two principal liability issues and were not improper merely because the insurers had commenced proceedings first.
- The dispute had its most real and substantial connection with England and would be more conveniently tried there. The proceedings were therefore continued in England.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
First-instance decision. The judgment records related proceedings in the Ontario Superior Court of Justice, but no appellate decision in the present English proceedings.
Key cases cited
26 authorities cited.
- Kuddus (AP) v. Chief Constable of Leicestershire Constabulary [2001] UKHL 29
- Connelly v RTZ Corpn Plc (No 3) [1998] AC 854
- Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460
- Eliades & Ors v Lewis [2003] EWCA Civ 1758
- Durbeck GmbH v Den Norske Bank ASA [2003] EWCA Civ 147
- American Motorists Insurance Co (Amico) v Cellstar Corp and another [2003] EWCA Civ 206
- Owusu v Jackson & Ors [2002] EWCA Civ 877
- HIH CASUALTY & GENERAL INSURANCE LTD v NEW HAMPSHIRE INSURANCE CO INDEPENDENT INSURANCE CO LTD [2001] Lloyd's Rep IR 596
- King & Ors v Brandywine Reinsurance Co (UK) Ltd. [2004] EWHC 1033 (Comm)
- DSM Anti-Infectives BV v SmithKline Beecham Plc [2004] EWHC 1309 (Ch)
- Lincoln National Life v Employers Reinsurance [2002] EWHC 28 (Comm)
- Whiten v Pilot Insurance Co. [2002] 1 S.C.R. 595 (SCC)
- Universal General Insurance Co (UGIC) v Group Josi Reinsurance Co SA (Group Josi Reinsurance Company SA v Universal General Insurance Company (UGIC).) Case C-412/98
- ACE INSURANCE SA-NV (FORMERLY CIGNA INSURANCE CO OF EUROPE SA-NV) v ZURICH INSURANCE CO AND ANOR [2001] Lloyd's Rep IR 504
- MESSIER DOWTY LTD. AND ANOTHER v. SABENA S.A. AND OTHERS [2000] 1 Lloyd's Rep 428
- Non-Marine Underwriters, Lloyd’s of London v Scalera [2000] 1 S.C.R. 551 (QL)
- NEW HAMPSHIRE INSURANCE COMPANY AND OTHERS v PHILIPS ELECTRONICS NORTH AMERICA CORPORATION (NO 1) [1999] Lloyd's Rep IR 58
- In re Harrods (Buenos Aires) Ltd [1992] Ch 72
- McNish and McNish v American Home Assurance Co [1991] O.J. No. 2256
- Falk Bros v Elance Steel Fabricating Co [1989] 2 S.C.R. 778 (QL)
- SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279
- Cie Tunisienne de Navigation SA v Cie d’Armement Maritime SA [1971] AC 572
- Burrows v Jamaica Private Power Co Ltd
- E.I Du Pont de Nemours & Co. v I.C. Agnew
- Canadian Newspapers Co. v Kansa General Insurance Co. [30 O.R. (3d) 257]
- Stuart v Hutchins 40 O.R. (3d) 321
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Cases citing this case
1 later case · 1 positive
Most senior citing decisions:
- CGU International Insurance Plc & Ors v Astrazeneca Insurance Company Ltd [2005] EWHC 2755 (Comm) followed
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