Further guidance on jurisdiction and foreign claims? Aspen Underwriting v Credit Europe Bank NV

Today and tomorrow, the Supreme Court will hear a case arising from the loss of the ship (The Atlantik Confidence) in 2013 in the Gulf of Aden. The UK-based hull underwriters had paid out under a settlement agreement but then sought recovery of the proceeds from the ship owner’s mortgagee, a bank registered in the Netherlands, arguing that the loss was misrepresented to them and actually resulted from a deliberate act by the owners. The settlement agreement contained an exclusive jurisdiction clause in favour of English courts.

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Civil liability Act 2018: latest government material

Earlier today we indicated that the calling of the election may impact on the proposed commencement in April of the whiplash reforms in part 1 of the Act. Despite that, two new announcements from the government should be noted.

The first is the clear statement by Justice Minister Chris Philp MP that claims made by minors and protected parties will (a) be subject to new tariff damages (b) remain subject to the £1,000 small claims limit but (c) not be processed via the new online system. These clarifications were set out in this written reply to Labour MP Ellie Reeves (a member of the Justice Select Committee).

The second is the publication by Treasury of post-consultation material in connection with section 11 of the Act, which is the provision by which regulations will be made requiring insurers to account for savings arising from the reforms in both parts of the Act. The latest Treasury document sets out technical refinements to draft regulations due to be made under section 11. Although the government says it intends to “bring these regulations into force in good time” it is difficult to say quite what that means at the moment.

The Treasury report and revised draft regulations are both available here. The main technical changes to the regulations are: a clearer limitation to private motor polices only, an upward revision of the qualifying threshold from 10,000 to 100,000 such policies per year (which will still cover more than 95% of the market), changing the wording to refer to “premium earned” rather than “premium income”, a removal of requirement to provide information on the technical price and, finally, a broader framing of the option for insurers to provide additional information on wider market issues and pressures.

With parliament being dissolved next week in advance of the December general election, the above could be the last government materials that we’ll see in connection with the Act for several weeks.

Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com

How might the December election affect the whiplash reforms?

The shortest, most accurate, answer is that we simply do not know.

The ‘purdah’ period before the election will see far fewer (if any) communications from civil servants about progress in building the IT platform and refining the policy. Key decisions were to be taken by the Civil Procedure Rule Committee in order to shape the necessary statutory instrument(s) and rules governing the overall scheme of whiplash reform (as outlined in part 1 of the Civil Liability Act 2018) and changes to the small claims track limit.

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