Aspen Underwriting Ltd & Ors v Credit Europe Bank NV

A claim for damages under section 2(1) of the Misrepresentation Act 1967 is a claim relating to tort for the purposes of article 7(2) of the Brussels Regulation. That remains so even where success depends on proving the existence of a contract between the parties. The relevant jurisdictional question is where the harmful event occurred. Where that event occurred in England, the English court has jurisdiction over the statutory misrepresentation claim.

Following an earlier judgment concerning the claimants’ claims against Credit Europe Bank NV, the court had to determine whether it had jurisdiction over a claim for damages under section 2(1) of the Misrepresentation Act 1967. The claimants contended that the claim was a matter relating to tort within article 7(2) of the Brussels Regulation. The bank argued that the claim depended on proving a contract and therefore fell outside that provision.

The court also considered whether permission should be given to appeal the jurisdiction ruling.

1. The court accepted that a claim for damages under section 2(1) of the Misrepresentation Act 1967 is a claim relating to tort for the purposes of article 7(2) of the Brussels Regulation. The court relied in particular on Dunhill v Diffusion Internationale [2002] 1 AER (Comm) 950, at pp 963–965.
2. The harmful event had occurred in England. Accordingly, the English court had jurisdiction over the claim for statutory misrepresentation damages under article 7(2).
3. The bank submitted that the claim could not be characterised as relating to tort because it depended on proof of a contract between the underwriters and the bank. That submission was rejected. Dependence on proof of a contract did not prevent the claim from remaining one relating to tort.
4. The court followed Dunhill v Diffusion Internationale on that point. It was not persuaded that an appeal would have a real prospect of establishing that decision was wrong. Permission to appeal was nevertheless granted because the issue was closely related to another jurisdictional decision for which permission had already been granted.

The judgment records an earlier judgment in the same litigation: [2017] 2 Lloyd’s Reports 295. Permission to appeal was granted in relation to other conclusions and, for the statutory misrepresentation jurisdiction point, because of its close connection with those appealable issues.