In Dassault Aviation SA v Mitsui Sumitomo Insurance coverage Co Ltd [2024] EWCA Civ 5, the Court docket of Enchantment has overturned a primary occasion judgment and located {that a} contractual prohibition on task in a sale contract didn’t forestall the switch of subrogation rights to an insurer the place that switch arose by operation of regulation.

BACKGROUND

The Claimant and a Japanese aerospace firm (MBA) entered into an English regulation contract (the Sale Contract) for the manufacture and supply of two plane (and associated provides and providers) to MBA for onward provide to the Japanese Coast Guard.

The Sale Contract

The Sale Contract included a prohibition in opposition to task within the following phrases:

“Apart from the Warranties outlined in Exhibit 4 that shall be transferable to Buyer, this Contract shall not be assigned or transferred in complete or partially by any Occasion to any third occasion, for any purpose by any means, with out the prior written consent of the opposite Occasion and any such task, switch or try to assign or switch any curiosity or proper hereunder shall be null …” (the Non-Project Clause)

The Sale Contract additionally contained an arbitration settlement offering for arbitration below the ICC guidelines and for the seat of arbitration to be London.

The Coverage & Japanese insurance coverage regulation

Subsequently, MBA entered right into a contract of insurance coverage (the Coverage) with the Defendant insurer, ruled by Japanese regulation. It didn’t search the Claimant’s consent. The Coverage coated the chance of MBA being held liable to the Japanese Coast Guard for late supply below the Sale Contract.

It was accepted that:

• Japanese insurance coverage regulation supplies for an insurer to be subrogated to an insured’s declare following cost of an indemnity;
• Not like below English regulation, the mechanism of subrogation below Japanese regulation is a switch of rights. The insurer acquires the proper to sue in its personal title, together with the proper to provoke proceedings; and
• Japanese insurance coverage regulation permits contracting out of such switch in sure circumstances.

The Coverage additionally contained a subrogation clause in phrases that resembled Japanese insurance coverage regulation.

Supply by the Claimant below the Sale Contract was delayed and the Japanese Coast Guard claimed liquidated damages from MBA for late supply. MBA in flip obtained an indemnity in respect of that sum from the Defendant pursuant to the Coverage.

Subrogated declare

In April 2021, the Defendant insurer submitted a request for arbitration below the arbitration settlement within the Sale Contract in opposition to the Claimant to train its subrogation rights. The Claimant contended that the Arbitral Tribunal didn’t have jurisdiction on the idea that any switch of rights from MBA to the Defendant was precluded by the Sale Contract’s Non-Project Clause and was, due to this fact, ineffective.

The Defendant argued that the prohibition on task created by the Non-Project Clause didn’t on its correct development (below English regulation) apply to an task by operation of regulation (on this case, Japanese regulation). The Tribunal concluded by majority determination that it did have jurisdiction as a result of:

1.  the Non-Project Clause didn’t apply to involuntary assignments and/or assignments by operation of (Japanese) regulation; and
2. as a matter of Japanese regulation, the switch of rights from MBA to the Defendant insurer occurred by operation of Japanese insurance coverage regulation (versus pursuant to the subrogation clause within the Coverage).

The Claimant subsequently made an software below Part 67 of the Arbitration Act 1996 to put aside the Tribunal’s award which was thought-about by the Excessive Court docket.

FIRST INSTANCE DECISION

Cockerill J gave judgment within the first occasion in favour of the Claimant, albeit with ‘an uncommon diploma of hesitation‘. For a full overview see our article on the primary occasion determination right here on our Insurance coverage Weblog.

Cockerill J discovered that the Tribunal had no jurisdiction to determine any dispute between the Claimant and the Defendant insurer, as a result of, having analysed the case regulation and the wording of the Sale Contract, her conclusion was that the switch of rights to the Defendant insurer was inside the scope of the Non-Project Clause and due to this fact ineffective.

The related case regulation was not supportive of a basic rule or presumption {that a} prohibition on task wouldn’t be interpreted to use to an task ‘by operation of regulation’. Nonetheless, the decide did settle for that, as far as the authorities go, there’s a presumption that the court docket shouldn’t be prevented from giving impact to a non-assignment clause when the tried switch is one which is voluntary (within the sense of consented to). Cockerill J made clear that ‘voluntary’ didn’t imply free motion however was reasonably the correlate of opposite to the assigning occasion’s will, that means that any switch with the ‘taint of voluntariness’ could be adequate to come back inside the scope of the Non-Project Clause.

On these info, Cockerill J agreed with the Claimant that the task had been made by MBA insofar because the switch of MBA’s rights to the Defendant was “voluntary in that it was within the energy of MBA to forestall the switch“. Whereas (it was agreed that) it was a provision of Japanese regulation which finally effected the switch, the switch was consented to by MBA and occurred because of numerous of its voluntary actions: (i) the choice to insure its obligations below the Sale Contract; (ii) the choice to decide on a coverage ruled by Japanese regulation; (iii) the choice to not exclude, within the Coverage, the related provisions of Japanese regulation which supplied for the Defendant’s proper of subrogation; and (iv) the choice by MBA to make a declare below the Coverage. It was inside the energy of MBA to forestall the switch of rights to the Defendant by not taking any of the steps outlined above. As a “matter of pure language” the wording of the Non-Project Clause supported the Claimant’s argument that the switch of rights to the Defendant was inside the scope of the Non-Project Clause and due to this fact ineffective.

Cockerill J took into consideration in her evaluation numerous arguments put ahead by the Defendant concerning each the broader context of the Sale Contract and the Coverage and issues of public coverage. This included consideration of the industrial function of the Non-Project Clause in addition to the suggestion (seemingly accepted by each events) that an English regulation subrogation, which it was argued doesn’t contain a switch of rights, wouldn’t have fallen foul of the Non-Project Clause. The Defendant argued that there isn’t any purpose why subrogation below English regulation is appropriate, whereas the subrogation equal of one other authorized system is just not. Cockerill J recognised these “instinctive difficulties” however her view was that these had been a part of the related factual matrix and weren’t on these info robust sufficient to override the plain that means of the wording of the Non-Project Clause.

COURT OF APPEAL DECISION

Vos MR gave judgment permitting the enchantment and reinstating the Tribunal’s award, with each Coulson LJ and Phillips LJ agreeing along with his conclusion.

The important level from Vos MR’s perspective was that the wording of the Non-Project Clause clearly prevented any switch effected by a celebration to the Sale Contract, however not a switch effected by operation of regulation. He reached this conclusion for the next causes:

• First, he disagreed with Cockerill J that there was any basic precept that might be derived from the case regulation. The authorities which she had referred to at first occasion (being largely outdated insolvency circumstances) usually turned on the character of the insolvency below which the related switch occurred. The right method was due to this fact to ignore these authorities and to use the same old ideas of contractual interpretation, which had been set out briefly in his judgment.
• Provided that in his view the phrases of the Non-Project Clause had been ‘not ambiguous or unclear‘, it was not essential to undertake the detailed and iterative strategy of deciding between various interpretations as set out in Wet Sky and Wooden v Capita.
• Nonetheless, it was vital to contemplate the wording in mild of the industrial background, which meant acknowledging that each events had expressly anticipated elsewhere inside the Sale Contract that every occasion would acquire insurance coverage and that meant the events had envisaged that every would have happy their respective disclosure obligations to the related insurer, whatever the strict confidentiality provisions of the Sale Contract. His conclusion was that it was “removed from clear” that the Non-Project Clause was supposed to use to transfers arising from insurance coverage pay-outs, whatever the governing regulation of the related insurance coverage contract.
• He declined to contemplate whether or not an English regulation subrogation could be caught by the Non-Project Clause, provided that was not in concern on this case.
• On the subject of the wording of the Non-Project Clause itself, the important thing phrases had been “shall not be assigned or transferred in complete or partially by any Occasion to any third occasion” (emphasis added). The Tribunal had unanimously determined that MBA’s claims had been transferred to the Defendant by operation of regulation and Vos MR discovered that this clearly meant the switch was not made by MBA. In reaching this conclusion Vos MR disagreed with Cockerill J {that a} switch made “by MBA” included a switch precipitated as a consequence of sure actions taken by MBA.

In conclusion, the target that means of Non-Project Clause, making an allowance for the Sale Contract as an entire and its wider context, didn’t invalidate a switch by operation of Japanese regulation, and the prohibition due to this fact didn’t apply to the switch of MBA’s claims to the Defendant insurer below the related clause of the Coverage.

COMMENT

This determination supplies some useful clarification on the interplay of the switch of rights to an insurer below an insurance coverage coverage with any contractual agreements that will have been entered into by an insured. Specifically, Vos MJ made clear that the courts wouldn’t count on non-assignment provisions to forestall transfers arising from insurance coverage pay-outs the place it’s expressly anticipated inside the related contract that insurance coverage might be obtained.

A level of warning is required, nonetheless, as the choice additionally makes clear that whether or not subrogation rights are caught by a non-assignment provision is determined by the wording of the related clause, albeit close to the related contract as an entire, and the broader context. Whereas the Court docket of Enchantment clearly thought-about the wording of the Non-Project Clause right here to be unambiguous, events ought to nonetheless be sure that non-assignment provisions are drafted in as clear phrases as potential to keep away from disputes arising sooner or later, significantly the place it’s envisaged that events will acquire their very own insurance coverage.

Insurers must also observe that, whereas the Court docket of Enchantment was not receptive to the concept subrogation rights transferred by operation of regulation might be caught by a non-assignment clause just because they had been ‘tainted by voluntariness‘, Vos MJ’s judgment expressly confines the method taken to circumstances the place subrogation rights have arisen by operation of regulation. Though it was not related on these info, the judgment makes clear that had been subrogation rights to have arisen not by operation of regulation however by another mechanism, the place “would possibly nicely have been totally different“.