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)  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  UKSC 80,  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 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  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  EWHC 1904 (Comm);  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)  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  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  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  of his speech) that:
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 ) that:
Lord Justice Gross concluded (at paragraph  of his judgment) that:
As a result, the underwriter’s argument was rejected:
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.