Direct actions against liability insurers. Port of Assens v Navigators Management (UK) Ltd – the sequel.

 

Following the Court of Justice’s interpretation of art. 13(5) of the Brussels I Regulation, reported in this blog on July 13 2017, the matter came back before the Danish Supreme Court. The CJEU had found that an agreement on jurisdiction in an agreement between an insurer and a policyholder is not binding on an injured party who wishes to bring an action directly against the insurer before its home court or before the courts for the place where the harmful event occurred. On 9 October 2017 the Danish Supreme Court found that the CJEU judgment did not contain any reservations to the effect that, for this to apply, the injured party must be regarded as an economically or legally weaker party in this particular case.

Accordingly, under the Brussels I Regulation the Port of Assens would be entitled to bring an action before the Danish courts, if it was permitted to bring an action directly against the insurance company under the national rules applicable to the case. The claim was most closely linked to Denmark so this issue was to be settled under Danish law. Section 95(2) of the Danish Insurance Contracts Act thus applied and the Port of Assens was correct in bringing the action in Denmark. The Supreme Court remitted the case to be heard on its merits before the Maritime and Commercial Court.

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