Hutchinson v Mapfre Espana Compania De Seguros Y Reaseguaros SA. & Anor

For a jurisdictional challenge, a claimant must show a good arguable case. This requires a plausible evidential basis for the relevant jurisdictional gateway. The court must resolve factual or legal disputes where it can reliably do so, but may accept a plausible contested basis where interlocutory material prevents a reliable assessment.

Consumer jurisdiction under Recast Brussels 1 does not require a causal link between targeted commercial activity and the particular consumer contract. A liability insurer cannot rely on a policy term which indirectly removes the special jurisdictional protection afforded to an injured party bringing a direct claim in the courts of domicile. The contractual claim proceeded, while the non-contractual claims were stayed pending CJEU guidance.

The claimant, a British consumer, suffered catastrophic injuries at the second defendant’s entertainment venue in Ibiza. He brought claims in England against the venue and its Spanish liability insurer. The claims were governed by Spanish law.

The defendants challenged the jurisdiction of the English court. The issues included whether the consumer jurisdiction provisions applied to the contractual claim, whether the tort and statutory-duty claims could proceed or required a stay, whether Spanish proceedings engaged lis alibi pendens, and whether a territorial-scope term in the insurance policy defeated jurisdiction over the direct claim against the insurer.

1. Good arguable case. The claimant bore the burden of showing that a jurisdictional gateway applied. The applicable standard required a plausible evidential basis, with the court taking a view on disputed material where reliable assessment was possible. Where interlocutory limitations prevented a reliable conclusion, a plausible but contested basis was sufficient.
2. Consumer contract. The evidence established that the venue directed commercial activity to UK consumers and that the ticket contract fell within those activities. Following Emrek v Sabranovic, (Case C-218/12), no causal link was required between the targeted activity and the particular purchase. The swimming pool was within the facilities available under the standard ticket, so the claim related to the consumer contract even if the claimant had previously been in a VIP area. The court therefore had jurisdiction over the contractual claim.
3. Non-contractual claims. The interpretation of Article 13(3) remained genuinely uncertain despite Hoteles Pineiro Canarias SL v Keefe, [2015] EWCA Civ 598. The non-contractual claims were stayed pending the CJEU reference in Cole v IVI Madrid SL.
4. Lis alibi pendens. The evidence did not establish extant Spanish civil proceedings, or criminal proceedings at a stage to which a civil claim was attached. Articles 29 and 30 therefore did not require a stay. Even if the Spanish proceedings remained at a preliminary investigative stage, the claimant was free to commence separate civil proceedings in England and this court was first seised.
5. Direct claim against Mapfre. The territorial-scope term required claims to be submitted within Spanish jurisdiction. Its substantive effect was to compel an injured claimant to sue in Spain or lose the direct right of action. Applying Axa Belgium and Assens Havn v Navigators Management Ltd, (Case 368/16), the term was an impermissible indirect derogation from the special insurance jurisdiction. It could not be relied upon against the claimant. In any event, the evidence gave him a good arguable case under Spanish law that the term limited rights after the insured risk arose rather than defining the risk.

Both jurisdictional challenges were dismissed, save that the non-contractual claims against Ice Mountain were stayed pending the CJEU reference or further order.