Aspen Underwriting in the Court of Appeal: The evidential standard to be met in establishing jurisdiction after the Supreme Court’s decision in Brownlie v Four Seasons Holdings (Michael McParland QC)

News Michael McParland QC 26th November 2018

One of the key aspects of the Court of Appeal’s judgment of 21 November 2018 in Aspen Underwriting Ltd & Ors v Kairos Shipping Ltd & Ors. (Atlantik Confidence) [2018] EWCA Civ 2590 concerns the correct evidential standard an English court should adopt when determining jurisdiction under the Brussels I (Recast) Regulation (1215/2012). In particular, whether that evidential standard had been changed as a result of observations in the Supreme Court in Brownlie v Four Seasons Holdings [2017] UKSC 80, [2018] 1 WLR 192. The Court of Appeal’s ruling in Aspen Underwriting on this point is of general importance for cross-border civil and commercial litigation.

The facts

The Aspen Underwriting case arises as a result of the sinking of a vessel, the Atlantik Confidence, in the Gulf of Aden in 2013. In a subsequent Limitation Action in England, the court held that the vessel had been deliberately sunk by the master and chief engineer at the request of an alter ego of the owners: see The Atlantik Confidence [2016] 2 Lloyd’s Rep. 525. In this second action, the hull underwriters of the vessel, who paid out on the hull and machinery policy, are seeking to recover proceeds that policy from a bank (the vessel’s mortgagee) and the owners. A jurisdiction challenge before Teare J. resulted in the judge holding that the English court had jurisdiction in respect of tortious misrepresentation claims against the bank but not in respect of the underwriter’s claims in restitution: see [2017] EWHC 1904 (Comm); [2017] 2 Lloyd’s Rep. 295. On the underwriter’s appeal, a key issue was whether Teare J. had adopted the correct evidential standard to determine questions of jurisdiction.

What is the evidential standard to be applied?

Before Teare J. it had been common ground between the parties that the standard of proof to be applied in disputes as to whether the English court had jurisdiction under the Brussels I (Recast) Regulation was that of a “good arguable case”, in the sense that the party contending for the jurisdiction of the court had “the better of the argument”.

(The addition of the qualifier “much” to the phrase “the better of the argument”, which was derived from Canada Trust v Stolzenberg (No. 2) [1988] 1 WLR 547, had arguably fallen out of favour in the context of the Brussels I (Recast) Regulation and the revised Lugano Convention: see e.g. Joint Stock Co Aeroflot- Russian Airlines v Berezovsky & Ors [2013] EWCA Civ 784).

On appeal in Aspen Underwriting, the cross-appellant underwriters argued that, in the light of the subsequent observations in the Supreme Court in Brownlie, “the better of the argument gloss” had not been retained and / or differed from the Supreme Court guidance, which provided for an approach materially different to that adopted by Teare J. Relying on observations of Lord Sumption in Brownlie, the appellant underwriters contended that, while the test was still that of a “good arguable case”, this test was satisfied if there was a “plausible, albeit contested, evidential basis for it” in establishing jurisdiction under the Regulation’s jurisdictional gateways.

The Court of Appeal’s decision

Lord Justice Gross (with whom LJJ Moylan and Coulson agreed) analysed the decision in Brownlie and noted that Lord Sumption JSC (with whom Lord Hughes JSC agreed) had begun his consideration of the evidential standard with Vitkovice Horni v Korner [1951] AC 869, 800 which had adopted the expression “a good arguable case”, a phrase which imported “more than a prima facie case but less than the balance of probabilities”. Lord Sumption had then gone on to say (at paragraph [7] of his speech) that:

• “7.       An attempt to clarify the practical implications of these principles was made by the   Court of Appeal in Canada Trust v Stolzenberg (No. 2) [1998] 1 WLR 547. Waller LJ, delivering the leading judgment observed, at p. 555:
  • “Good arguable case” reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e., of the court being satisfied or as satisfied as can be having regard to the limitations which an interlocutory process imposes that facts exist which allow the court to take jurisdiction”
• … In my opinion it is serviceable test, provided that it is correctly understood. The reference to ‘a much better argument on the material available’ is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. I do not believe that anything is gained by the word ‘much’, which suggests a superior standard of conviction that is both uncertain and unwarranted in this context”.

Lord Justice Gross however, noted the speech of Baroness Hale of Richmond PSC (with whom Lord Wilson JSC and Lord Clarke of Stone-Cum-Ebony agreed), which underlined that everything said in Brownlie about jurisdiction was obiter. Her Ladyship had also added (at paragraph [33]) that:

• “… For what it is worth, I agree that (1) that the correct test is ‘a good arguable case’ and glosses should be avoided; I do not read Lord Sumption JSC’s explication in para. 7 as glossing the test”.

Lord Justice Gross concluded (at paragraph [34] of his judgment) that:

• “…In my judgment, nothing said in Brownlie invalidated the approach adopted by the Judge to the applicable standard of proof to be satisfied by Underwriters- on whom the burden of proof rested- to come within the relevant Brussels Recast jurisdictional gateways. As is clear from Brownlie, the test remains that of a “good arguable case”. A majority of the Supreme Court deprecated any “glossing” of that test, but said, in terms that Lord Sumption’s “explication”, at [7], did not constitute any such impermissible gloss. Accordingly, a good arguable case remains something more than a prima facie case and something less than a case satisfying a balance of probabilities test. Where there is a dispute as to the applicability of a gateway, unless prevent by reason of some consideration relating to the interlocutory stage of the proceedings, the Court “must take a view on the material available if it can reliably do so…”.

As a result, the underwriter’s argument was rejected:

• “With regard to the disputed Issues on this appeal, there does not seem to me to be any reason why the Court cannot make a reliable assessment. For my part, I think that is what the Judge did: on the material available, he took a view and made an assessment. I would be content to say that in asking himself who had the better of the argument on the material available, the Judge may be seen to give effect to the test as subsequently formulated in Brownlie; but it suffices to conclude, as I do, that if any distinction can be drawn between the Judge’s approach and the Brownlie formulation, it is a distinction without any meaningful difference…”.

Conclusion

The Court of Appeal’s decision in Aspen Underwriting is to be welcomed as it puts paid to any further debate on the claimed impact of Brownlie on this key jurisdictional issue.

Related Barristers

Michael McParland QC