Sherdley & Anor v Nordea Life and Pension SA (Societe Anonyme)

A pre-dispute jurisdiction agreement in an insurance contract cannot deprive the policyholder or insured of the jurisdictions protected by article 9 of the Judgments Regulation. An exclusive clause contrary to article 13 has no legal force against the insured.

Any jurisdiction agreement must also satisfy article 23. Consensus must exist in fact and be clearly and precisely demonstrated on an objective construction. Where competing contractual documents point to different countries, they may fail to establish the required consensus.

For article 9, domicile is assessed when proceedings commence. A party ordinarily cannot introduce a new factual case about domicile for the first time after the appeal hearing.

The claimants entered into two unit-linked life assurance contracts with a Luxembourg insurer. The application forms, general conditions, proposals and specific conditions contained competing provisions favouring English, Luxembourg or Spanish law and jurisdiction. The claimants were habitually resident in Wales when the contracts were made but lived in Spain when they commenced proceedings.

Vos J held that the English court lacked jurisdiction. He found no sufficiently demonstrated agreement for English jurisdiction and preferred the contractual argument for Luxembourg jurisdiction. The claimants appealed, relying principally on an alleged original consensus in favour of England.

The central questions were whether article 23 of the Judgments Regulation recognised an English jurisdiction agreement, whether article 13 rendered the competing exclusive clauses ineffective, and whether article 9 otherwise conferred jurisdiction by reference to the claimants’ domicile.

1. Appeal dismissed. The claimants lacked jurisdiction to sue the insurer in England and Wales. The Master of the Rolls and Etherton LJ agreed with Rix LJ.

2. Article 13 of the Judgments Regulation protects the jurisdictions available to an insured under article 9. A pre-dispute agreement may enlarge the insured’s choice, but cannot remove an article 9 jurisdiction. An exclusive Luxembourg clause would improperly prevent proceedings in the insured’s domicile. An exclusive Spanish clause would improperly prevent proceedings in the insurer’s Luxembourg domicile. Article 23(5) provided that agreements contrary to article 13 had no legal force. None of the proposed exclusive clauses could therefore survive article 13(2) as an agreement enforceable against the claimants.

3. An agreement falling outside article 13 must in any event satisfy article 23. The required consensus is assessed objectively and must be clearly and precisely demonstrated. Incorporation of written general conditions may suffice even where the signatory did not read them. Reasonable care and good faith remain relevant. If parties previously agreed the applicable jurisdiction, an insurer acting under a contract of utmost good faith could not silently replace it with another jurisdiction in later documents.

4. The entire suite of contractual documents did not provide a clear route to English jurisdiction. The application forms and general conditions presented a strong argument for Luxembourg law and jurisdiction, while the later proposal favoured Spain. These competing provisions did not demonstrate with the necessary confidence a consensus for exclusive English jurisdiction.

5. The judge was entitled to find that the claimants were habitually resident in Wales when the contracts were made. Habitual residence was a factual question informed by the duration and continuity of residence and by personal and professional ties. The parties’ own contractual documentation identified the United Kingdom as their country of residence.

6. Article 9 jurisdiction depended on domicile when proceedings were commenced, rather than when the insurance contracts were made. The claimants had conducted the litigation on the accepted basis that their domicile had moved to Spain. They could not introduce, after the appeal hearing and without evidence, a new factual case that their Spanish residence had been temporary or that a subsequent return to Wales established jurisdiction.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court confirmed that the claimants lacked jurisdiction to sue the insurer in England and Wales.

2. High Court, Chancery Division: Vos J held that the English court had no jurisdiction. He found no sufficiently demonstrated consensus for English jurisdiction and preferred the argument for Luxembourg jurisdiction. No neutral or report citation is stated.