Mapfre Mutualidad Compania De Seguros Y Reaseguros SA & Anorv Keefe

Article 11(3) of the Council Regulation (EC) No 44/2001 permits an injured claimant to join the insured tortfeasor to a direct claim against the liability insurer, even where there is no policy dispute and the claim seeks uninsured loss. The provision contains no implied close-connection or irreconcilable-judgments threshold equivalent to Article 6(1). The law governing the direct action determines whether joinder is permitted. For a pre-Rome II accident, English conflict rules pointed to Spanish law, which permitted both the direct action and joinder. Any discretion to decline jurisdiction should be exercised to avoid multiple proceedings and inconsistent factual findings. A claimant’s choice of forum and resulting procedural advantage do not constitute abuse or improper ouster.

Godfrey Keefe suffered very serious injuries while staying at a hotel in Tenerife owned by Hoteles Piñero Canarias SL. He brought a direct claim in England against the hotel’s Spanish liability insurer, Mapfre, relying on Articles 9(1)(b) and 11(2) of the Council Regulation (EC) No 44/2001. After the insurer admitted liability subject to causation, quantum and a policy limit, Mr Keefe joined the hotel under Article 11(3). Master Cook dismissed the hotel’s jurisdiction challenge. His Honour Judge Higgins dismissed the hotel’s appeal in [2013] EWHC 4279 (QB). The central issues were whether Article 11(3) applied without a policy dispute, whether it required a risk of irreconcilable judgments, and whether the English court could or should exercise jurisdiction over the Spanish hotel.

The appeal was unanimously dismissed. The orders joining Hoteles Piñero Canarias SL to the English proceedings were upheld.

1. Direct action against the insurer. Following Odenbreit, Article 11(2) extends the claimant’s domicile jurisdiction in Article 9(1)(b) to an injured party bringing a direct claim against a liability insurer, provided that a direct action is permitted under national law.
2. Applicable law. Gloster LJ held that “national law” means the law of the forum, including its private international law rules. The question concerns a substantive right of direct recovery, not merely procedural capacity. Article 11(3)’s reference to the law governing the direct action means the applicable law governing that substantive cause of action. Under the Private International Law (Miscellaneous Provisions) Act 1995 and the 2001 insurance regulations, Spanish law governed the relevant tort and insurance relationship. Spanish law permitted a direct claim and joinder of the insured. Black LJ agreed with that conclusion. Moore-Bick LJ reached the same result, generally identifying the law of the place of the wrongful act as the relevant law for the direct right.
3. Scope of Article 11(3). The insurance jurisdiction provisions apply irrespective of whether the insurer disputes coverage. A claim against the insured for loss exceeding the policy limit remains within the statutory context of the direct insurance action. Article 11(3) contains no close-connection requirement or threshold risk of irreconcilable judgments equivalent to Article 6(1). Painer was concerned with a different jurisdictional provision and did not alter that conclusion.
4. Joinder and discretion. Gloster LJ considered that the words “the same court shall have jurisdiction” made the jurisdiction mandatory. Moore-Bick LJ proceeded on the assumption that the court retained a discretion, while Black LJ did not need to resolve the point. All three judges agreed that, if a discretion existed, it should be exercised in favour of joinder. Causation, quantum and factual findings could generate irreconcilable judgments in England and Spain. The claimant’s procedural advantage in England did not amount to abuse or improper ouster of Spanish jurisdiction.
5. Postscript. The court noted that Rome II would generally prevent the same pre-Rome II quantification issue from arising in later accidents.

1. Court of Appeal (Civil Division) dismissed the appeal on 17 June 2015.
2. High Court of Justice, Queen’s Bench Division dismissed the hotel’s appeal from Master Cook’s decision in [2013] EWHC 4279 (QB).
3. High Court of Justice, Queen’s Bench Division Master Cook dismissed the hotel’s jurisdiction application and declared that the English court had jurisdiction under Articles 9 and 11 of the Council Regulation (EC) No 44/2001.