The Russian Aircraft Litigation - Operator Policy Claims

Insurance recoveries under contingent cover do not discharge a primary insurer’s liability. They are res inter alios acta as between the insured and the primary insurer. The paying contingent insurer’s remedy is therefore subrogation in the insured’s name, rather than direct reimbursement or contribution.

Contingent insurance is not double insurance where the insured cannot freely choose between insurers, the liabilities are not co-ordinate, and there is no mutuality of contribution. The court should not create a “near miss” category between double insurance and guarantee cases.

The Civil Liability and Contribution Act 1978 does not apply where the relevant liability under foreign-law insurance policies is a debt rather than liability in respect of damage or compensation. In any event, a contribution claim requires discharge of the other party’s liability, which contingent insurance payments did not achieve.

Chubb European Group SE and Fidelis Insurance Ireland DAC, as insurers under lessors’ contingent war-risk policies, sought contribution or indemnity from operator-policy war-risk underwriters, including the Applicants.

The claims arose after Russian authorities detained western-leased aircraft and engines. The lessors had been refused payment under operator policies and recovered under contingent lessors’ policies. In Re Russian Aircraft Policy Claims [2025] EWHC 1430 (Comm), the court held that recovery under the contingent policies was available following failure of the operator policies to respond.

The Applicants applied to strike out or obtain summary judgment on the contribution claims. The issues were whether the contingent insurers had a direct reimbursement or indemnity claim, whether the arrangements constituted double insurance, and whether the Civil Liability and Contribution Act 1978 applied.

1. Applications allowed. The Contribution Claims were struck out or dismissed by summary judgment.
2. Applications of this kind should assume the primary facts pleaded to be true and should not become mini-trials. Novel or controversial legal issues may nevertheless be determined summarily where the evidence is sufficient and the parties have had a proper opportunity to argue them. The court should grasp the nettle where a claim is legally unsustainable.
3. The operator policies were the primary insurance and the lessors’ policies were contingent insurance. The contingent insurers’ payments did not discharge the operator underwriters’ liability. Insurance recoveries are ordinarily res inter alios acta as between the insured and a third party who remains primarily liable.
4. The appropriate remedy was therefore subrogation to the lessors’ rights against the operator underwriters. A direct claim for reimbursement or indemnity was unavailable. The reasoning in Caledonia North Sea Ltd v British Telecommunications Plc [2002] UKHL 4 and the related Inner House decision was applied. The analysis was not confined to cases involving a wrongdoer or fault.
5. The arrangements did not constitute double insurance. The contingent cover, the absence of a free choice between insurers, and the absence of mutuality meant that the liabilities were not co-ordinate. The court rejected the suggested “near miss” approach between double insurance and guarantee cases. Limit (No 3) Ltd v ACE Insurance Ltd [2009] NSWSC 514 was not followed and its reasoning was disapproved.
6. The Civil Liability and Contribution Act 1978 did not apply. The operator policies were governed by Russian law and the relevant liabilities sounded in debt, not compensation for damage. Sections 1(1), 1(6) and 6(1) therefore did not apply. The court also held that, independently, there had been no discharge of the operator underwriters’ liability, which was necessary for the proposed contribution claims.
7. The court declined to determine whether the 1978 Act applies between insurers, or whether the parties were liable for the same damage, because those issues were unnecessary to the result.