Lackey v Mallorca Mega Resorts SL & Anor

For jurisdiction under the Recast Brussels Regulation, the claimant must establish a good arguable case, assessed by reference to a plausible evidential basis and the material available at the interlocutory stage.

Article 13(3) permits an injured person to join the insured to a direct claim against the insurer without requiring a dispute about the insurance policy. A consumer-contract jurisdiction is also available to a member of a holiday group who is a beneficiary of the contract, even though another member made the booking. A person contracting through an agent may have concluded the contract for these purposes.

The claimant, who suffered catastrophic injury in a hotel wave pool in Mallorca, brought proceedings in England against the hotel and its liability insurer. The hotel accepted jurisdiction initially, but later applied out of time for a declaration that the English court lacked jurisdiction.

The claimant relied on the insurance provisions and the consumer-contract provisions of Regulation 1215/2012. The hotel argued that the insurance gateway required a policy dispute and that only the group member who made the booking was a consumer. The court also considered whether a reference to the Court of Justice of the European Union was necessary.

1. Relief from sanctions. Relief was granted under the Denton principles. The delay was substantial in the context of CPR rule 11, but there had been a change of solicitors and position, jurisdiction was central to a claim valued at about £9 million, and the issue was important and complicated.
2. Applicable jurisdictional standard. Once jurisdiction was challenged, the claimant bore the burden of establishing a good arguable case. This required a plausible evidential basis for the relevant jurisdictional gateway. Where the material permitted a reliable assessment, the court had to decide the issue; otherwise, a plausible but contested evidential basis could suffice.
3. Insurance jurisdiction. The court was bound by Hoteles Pinero Canarias SL v Keefe [2015] EWCA Civ 598. Article 13(3) was not confined to cases involving a dispute about the validity or effect of the policy. It permitted the related claim against the insured to be joined to the direct claim against the insurer. The provision was intended to avoid multiple proceedings and irreconcilable judgments. The facts would also have satisfied the narrower construction because the parties disputed the applicable policy limit and the insurer’s ability to limit cover.
4. Consumer jurisdiction. Articles 17 and 18 were not limited to the person who physically made the booking. That construction would create arbitrary distinctions between members of the same holiday group and undermine the protective and anti-duplication purposes of the Regulation. The claimant was a beneficiary of the booking and therefore qualified as a consumer. In any event, the booking conditions showed that the booking member contracted on behalf of all persons included in the booking. A person contracting through an agent may have concluded the contract.
5. Reference and order. A reference to the CJEU was unnecessary. The challenge failed, and the court declared that the English court had jurisdiction over the claim under Sections 3 and 4 of the Recast Regulation.