Dornoch Ltd. & Ors v The Mauritius Union Assurance Company Ltd. & Anor

On an application to stay proceedings on forum non conveniens grounds, the court must assess the dispute as a whole and determine whether another forum is clearly or distinctly more appropriate. A good arguable case that English law governs the contract or tort, especially where that law may materially affect the available defences and remedies, can be a powerful factor favouring England. General factual convenience and parallel proceedings remain relevant but are not decisive. A jurisdiction clause is not incorporated into a reinsurance contract merely by general words requiring the reinsurance to follow the terms and conditions of another policy, where the clause is unrelated to the insured risk. An anti-suit injunction requires vexatious or oppressive foreign proceedings; concurrent proceedings alone are insufficient.

The claimants were London-market reinsurers of policies issued by the first defendant to the second defendant. They sought declarations that an excess reinsurance policy had been avoided for non-disclosure and misrepresentation, declarations that the alleged losses fell outside the cover, and damages against the defendants.

The defendants applied to stay the English proceedings, set aside permission to serve out of the jurisdiction, and discharge anti-suit relief. Related insurance and fraud proceedings were continuing in Mauritius. The central issues were whether the excess reinsurance contained a Mauritius jurisdiction clause and, if not, whether Mauritius was clearly the more appropriate forum for the disputes.

1. Jurisdiction clause. The court applied English construction principles when deciding whether the excess reinsurance contained a jurisdiction clause, as part of identifying the applicable law under the Rome Convention. The words requiring the policy to follow the terms and conditions of the primary reinsurance did not incorporate a jurisdiction clause. Such a clause was unrelated to the insured risk. The separate words Jurisdiction Clause, without attached wording or agreed content, were meaningless for incorporation purposes. There was therefore no good arguable case that a Mauritius jurisdiction clause had been agreed.
2. Applicable law. Under Articles 3 and 4 of the Rome Convention, neither party had the better argument that an implied choice of law had been demonstrated with reasonable certainty. The English market placement, English brokers, London forms and standard clauses favoured English law, while the connection with the underlying Mauritius insurance favoured Mauritius law. Under Article 4, however, the characteristic performance of reinsurance was payment by the reinsurers, and the leading reinsurers were based in England. There was consequently a good arguable case that English law governed the excess reinsurance.
3. Forum conveniens. Applying the principles in Spiliada Maritime Corporation v Cansulex, [1987] AC 460, England was clearly and distinctly the more appropriate forum. English law could materially affect construction, avoidance, and the availability of relief under the Misrepresentation Act 1967. The factual centre of gravity in Mauritius and the risk of inconsistent findings did not outweigh those factors. The same conclusion applied to the tort claims against MCB. English law was the law of the most significant elements of the alleged misrepresentations under sections 11(2)(c) and 12 of the Private International Law (Miscellaneous Provisions) Act 1995.
4. Anti-suit relief. Although England was the more appropriate forum, MUA’s joinder of the reinsurers in the Mauritius proceedings was not vexatious or oppressive. The anti-suit and anti-anti-suit injunctions, and the undertakings replacing them, were discharged.
5. The applications by MUA and MCB to stay the English proceedings and set aside permission to serve out were dismissed. The judge left open the possibility of a further stay application if it were later established that Mauritius law governed the disputes.