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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Burrows & Ors v Jamaica Private Power Company Ltd [2001] EWHC 488 (Comm) (29 October 2001) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2001/488.html Cite as: [2001] EWHC 488 (Comm)

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Case No: 2001 Folio 750

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29^th October 2001

B e f o r e : THE HONOURABLE MR JUSTICE MOORE-BICK - - - - - - - - - - - - - - - - - - - - -

	TIMOTHY WILLIAM BURROWS and others	Claimants
	- and -
	(1) JAMAICA PRIVATE POWER COMPANY LIMITED and (2) PRIVATE POWER OPERATORS LIMITED	Defendants

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Sue Prevezer Q.C. and Mr. Paul McGrath (instructed by Kennedys) for the claimants Lord Neill of Bladen Q.C. and Mr. Nicholas Lavender (instructed by Howrey, Simon, Arnold & White) for the defendants - - - - - - - - - - - - - - - - - - - - - JUDGMENT

Pursuant to the Practice Statement issued by the Master of the Rolls on 9th July 1990 I hereby certify that the attached text records my judgment in this matter and direct that no further record or transcript of the same need be made.

The Hon. Mr. Justice Moore-Bick

Mr Justice Moore-Bick:

1. The claimants in this action are all insurers carrying on business in the London market. In October and November 2000 each of them subscribed to one of four identical slips in respect of the insurance for the period from 12^th November 2000 to 12^th November 2001 of a power plant in Jamaica known as the Rockfort Power Plant owned and operated by the defendants. The cover was placed by Marsh Global Broking, a division of Marsh Limited. On 8^th February 2001 the crankshaft of one of the plant’s diesel generators failed causing substantial damage as a result of which the defendants have made a claim on their insurers for losses said to be in excess of US$13 million.
2. The Rockfort Power Plant was constructed by a consortium of European contractors. Disputes arose between the defendants and the contractors which were referred to arbitration, but the parties eventually settled their differences by a Termination and Release agreement made in July 1999. By that agreement they entered into a full and final settlement of all their claims, past and present. They also agreed to waive and abandon irrevocably all future claims against each other in respect of the Rockfort Power Plant and to discharge and release each other from all future claims, including potential claims of which they were then unaware.
3. The cover being sought for the year 2000-2001 was described in the slips as being in respect of all risks of direct physical loss or damage to the plant including boiler explosion, machinery breakdown and electrical breakdown, as more fully defined in the policy wording. As is common, the policy wording was to be agreed at a later date. The territory in respect of which the cover was sought was stated to be Jamaica and a number of conditions attaching to the cover were identified. These included the NMA 1483 Jurisdiction Clause. The section of the slips headed “Conditions” also included the provision “Full subrogation rights maintained against manufacturers”. The claimants say that there was nothing in the placing information to draw their attention to the existence or terms of the Termination and Release agreement and when they became aware of its existence during the spring or early summer of this year they gave notice to the defendants avoiding the cover on the grounds of misrepresentation and non-disclosure. On 5^th July 2001 their solicitors wrote to the defendants on their behalf informing them of that decision and tendering a return of the premium. That letter was despatched by courier, but was not received by the defendants until a week later as a result of disturbances in Jamaica. Meanwhile, on 6^th July the claimants had commenced the present action seeking a declaration that they had validly avoided the contracts contained in or evidenced by the slips. On the same day Langley J. made an order under rule 6.20(5) of the Civil Procedure Rules giving the claimants permission to serve the claim form on the defendants in Jamaica. He did so on the grounds that the contract of insurance in each case was made within the jurisdiction by or through an agent trading within the jurisdiction and was governed by English law. In due course the claim form was served on the defendants in Jamaica.
4. Shortly afterwards two sets of proceedings were begun by the defendants themselves in the Supreme Court of Jamaica. On 27^th July they issued a writ against the claimants in the present action and the two other insurers for the 2000-2001 policy year (“the first Jamaican action”) seeking to recover the loss sustained as a result of the failure of the generator on 8^th February. Service of that writ was accepted by lawyers in Jamaica acting on behalf of the claimants in circumstances to which I shall have to return at a later stage. Then on 21^st August the defendants commenced another action (“the second Jamaican action”), this time against the insurers for the 1999-2000 policy year seeking to recover in respect of losses incurred as a result of damage sustained by a steam turbine generator in December 1999 and the failure of a transformer in May 2000. Only two of the insurers who subscribed to the cover for the year 2000-2001 also subscribed to the cover for the year 1999-2000, the Wellington Underwriting syndicate No.2020 and the Cottrell & Maguire syndicate No.1173. Each of the defendants to the second Jamaican action entered a conditional appearance, thereby preserving the right to challenge the jurisdiction. Under the rules of procedure currently in force in Jamaica a conditional appearance automatically becomes unconditional, and the defendant is treated as having submitted to the jurisdiction, if an application to set aside service or otherwise challenge the jurisdiction is not made within 14 days. In the event only syndicate 1173 made an application within the prescribed time to challenge the jurisdiction of the court and as a result the appearance entered by the Wellington syndicate became unconditional. Syndicate 1173 has given notice to avoid in respect of the year 1999-2000; the Wellington syndicate has not yet done so.
5. The matter now comes before the court on the hearing of three applications: an application by the claimants for permission to amend the claim form to add another insurer for the 2000-2001 policy year, Ecclesiastical Insurance, as an additional claimant; an application by the claimants for an injunction restraining the defendants from taking further steps in the first Jamaican action; and an application by the defendants to set aside the order of Langley J. giving permission to serve the claim form out of the jurisdiction. The claimants’ application to join Ecclesiastical Insurance is not controversial in itself, but there would be no point in acceding to it if the defendants were to succeed in setting aside service out of the jurisdiction. Equally, if the defendants succeed in persuading the court that the action should not continue in this jurisdiction, it is difficult to see on what grounds the court could be asked to restrain them from pursuing their claims in Jamaica. Indeed, the claimants did not ultimately pursue that application. In these circumstances only the defendants’ application to set aside the order of Langley J. has been the subject of argument before me.
6. There is no doubt in the present case that the contracts contained in or evidenced by the four slips were made within the jurisdiction and, in the case of the defendants, were made on their behalf by an agent trading within the jurisdiction. The court therefore had jurisdiction to make an order giving the claimants permission to serve the claim form on the defendants out of the jurisdiction. However, such an order lies in the court’s discretion and it is well established that a claimant seeking to invoke the jurisdiction of the court against a foreign party on one of the grounds set out in rule 6.20(5)(a), (b) or (c) must persuade the court that England is clearly the appropriate forum for the trial of the action in the interests of all the parties and the ends of justice: see Spiliada Maritime Corp. v Cansulex Ltd [1987] 1 A.C. 460 per Lord Goff of Chieveley at pages 480-481.
7. The claim in this action is for a declaration of non-liability. Claims for negative declarations have traditionally been approached with some caution for the reasons expressed by Kerr J. in The Volvox Hollandia [1988] 2 Lloyd’s Rep. 361. The risk of their being used as vehicles for forum shopping remains strong, but there has in recent times been a greater willingness to recognise that they can serve a useful purpose in certain types of case: see Messier-Dowty Ltd v Sabena S.A. [2000] 1 WLR 2040 per Lord Woolf M.R. at page 2050G-2051C. Nonetheless, it must be recognised that in a case such as the present the insurers, by bringing an action for a declaration that they have effectively avoided the policy, are seeking to establish in a definitive manner a defence to a claim under the policy. In effect it is a pre-emptive strike and it would therefore be wrong, in my judgment, to treat this claim as being separate from the defendants’ claim under the contracts of insurance which is currently being pursued in Jamaica. In truth these are simply different aspects of one and the same dispute, both of which have to be taken into account when considering whether England is the appropriate forum for the trial of the action.
8. The defendants rely on two factors in particular which are said to point to Jamaica as the more appropriate forum in this case. The first is the inclusion in the slip of the clause NMA 1483. Lord Neill Q.C. submitted that in the circumstances of the present case this amounts to an agreement to submit all disputes to the decision of the courts of Jamaica. The second is the unqualified acceptance by the claimants of service in Jamaica of the proceedings in the first Jamaican action which, he submitted, amounted to a submission to the jurisdiction of the Jamaican courts. The defendants also rely on a number of other factors which they say also point to the conclusion that the case would be most appropriately tried in Jamaica.
9. An agreement to submit disputes to the courts of a particular country is a powerful factor when the court comes to exercising its discretion in matters of this kind. It is rare that the court will permit a party to maintain an action in England in breach of an exclusive jurisdiction clause or refuse to exercise its jurisdiction over a defendant if there is an exclusive jurisdiction agreement in favour of the courts of this country. Even a non-exclusive jurisdiction clause is usually treated as a matter of great significance, both because there is a natural desire on the part of the court to hold the parties to their agreement and because neither party will normally have good grounds for objecting to a forum which he has by implication agreed to be suitable for the trial of the action: see British Aerospace Plc v Dee Howard Co [1993] 1 Lloyd’s Rep. 368 and Mercury Communications Ltd v Communication Telesystems International [1999] 2 All ER (Comm) 33. These are both examples of cases where the parties had agreed to English law and jurisdiction, but the principles are in my view equally applicable to cases in which the parties have agreed to the jurisdiction of the courts of a foreign country. If the defendants are right, therefore, in saying that the parties in this case agreed to Jamaican law and jurisdiction, that would be a very powerful argument against exercising the court’s jurisdiction so as to allow the action to continue in this country.
10. It is necessary at this point to say something about the history of this insurance. The defendants originally instructed J & H Marsh McLellan Inc. in New York to obtain insurance in respect of the plant and they in turn instructed Marsh Limited in London to place the risk in the London market. The first period of cover was from 8^th May 1997 to 12^th November 1998. (Commercial operations at the plant in fact began in January 1998.) The lead underwriter for that year was the Agnew syndicate, syndicate No.672, which has since become the Wellington syndicate. A full policy wording was drawn up which included clause NMA 1483. This is one of the standard-form non-marine market clauses which appears in its published form as follows:

“OVERSEAS JURISDICTION CLAUSE

It is hereby agreed that:-

1. This insurance shall be governed by the law of … …whose Courts shall have jurisdiction in any dispute arising hereunder; and

2. Any summons, notice or process to be served upon the Underwriters for the purpose of instituting any legal proceedings against them in connection with this Insurance may be served upon

who have authority to accept service on their behalf.”

In this case it was completed so as to provide for Jamaican law and jurisdiction.

11. The second period of insurance was from 12^th November 1998 to 12^th November 1999 and was again led by the Agnew syndicate. The slips omitted any reference to clause NMA 1483, but an endorsement was scratched in May 1999 amending the conditions with effect from inception so as to include it. When he scratched the endorsement the underwriter added the comment “D.N.S.” meaning “Do not show” – that is, to the following market. It seems clear from that notation that he, at any rate, did not consider it to be something that was likely to affect any of the underwriters’ assessments of the risk. The policy when drawn up included the clause completed so as to provide for Jamaican law and jurisdiction.
12. The insurance for the year 1999 to 2000 was again led by the Agnew syndicate, now re-named the Wellington syndicate. It is common ground that the slips included a reference to clause NMA 1483 but in the event no policy wording was drawn up.
13. Cover for the year 2000-2001 was placed as to 91% in the London market with the balance in New York. There were four placing slips in identical wording, each of which provided that the policy was to be written on the J(A) form with wording to be agreed by underwriters. (The word “Leading” was deleted from this part of the slip.) The conditions referred to in each slip included NMA 1483. The Wellington syndicate was again the leading Lloyd’s underwriter, together with Munich Re as the leading companies underwriter, although in Wellington’s case a new underwriting team was handling the cover. The only other insurer for that year which had participated in any previous year’s insurance of the plant was the Cottrell & Maguire syndicate No.1173 which had written a line on the 1999-2000 year.
14. The defendants sought to rely on the underwriting history as I have described it in support of the argument that there was a continuing understanding on the part of the insurers that the contract was to be governed by Jamaican law and subject to Jamaican jurisdiction. I have a number of difficulties with this submission, however. In the first place, there is no suggestion in the evidence that the terms of the 1998 policy (the last year for which a full policy wording was drawn up) formed part of the placing information or was otherwise drawn to the attention of the market. There is no basis, therefore, for finding that the market was aware from the terms of the previous years’ cover that the defendants were seeking to agree Jamaican law and jurisdiction unless such information as was available to the Wellington syndicate as the leading underwriter in prior years can be imputed to the following market. There are two difficulties in the way of that, however. One is that four slips were used for the purposes of broking this risk and only on one of these is the Wellington syndicate identified as the leading underwriter. There is nothing to suggest that the leading underwriter identified on any of the other slips was aware of the terms agreed in previous years. But quite apart from that, I do not think that the construction to be placed on the slip can be affected by knowledge held by one underwriter which is not shared by the market as a whole. I considered this question in Kingscroft Insurance Co. Ltd v The Nissan Fire & Marine Insurance Co. Ltd [1999] Lloyd’s Rep. I.R. 603, 618 and for the reasons I then gave I am of the view that the slips in the present case must be construed in the light of information available to the market generally and without regard to information available only to one particular underwriter, even if he is the leading underwriter.
15. Miss Prevezer Q.C. submitted that this was a substantially new policy. By the autumn of 2000 the market had begun to take a very much more cautious view of risks of this type, as is reflected both in the refusal of all but two of the existing underwriters to continue into the following year and in the substantial increases in the levels of both the premium and the deductibles demanded. She submitted that in that climate underwriters might well have been unwilling to submit to Jamaican law and jurisdiction, even if they had been willing to do so in previous years. However, the question which has to be decided is not what underwriters would or might have been willing to agree when the time came for completion of NMA 1483, but what they did agree to by scratching the slips, and for the reasons I have given, I do not think that the history of this cover is relevant to that.
16. In the end, therefore, the question remains simply this: does the inclusion of NMA 1483 in the slip conditions amount in the circumstances of the present case to an agreement for Jamaican law and jurisdiction? Lord Neill submitted that it does because it demonstrates a clear intention both that the contract should be governed by some law other than English law and that disputes should be referred to the jurisdiction of the courts of a country other than England. In this case, he argued, the only country other than England that the parties can possibly have had in mind is Jamaica and therefore they must have intended Jamaican law and jurisdiction to apply.
17. Miss Prevezer submitted, however, that when the slip was scratched the parties deliberately left many things open for subsequent agreement, among which was the manner in which clause NMA 1483 was to be completed. The underwriters were entitled to insist, if they so chose, on its being completed so as to provide for English law and jurisdiction and if the parties were unable to agree about that the position would be at large. The proper law of the contract would then be a matter for determination by the court as and when the question arose and issues relating to jurisdiction would be decided in the ordinary way without the benefit of any agreement between the parties. In the event, a loss had occurred before any attempt had been made to agree the policy wording or the manner in which clause NMA 1483 should be completed.
18. Despite the fact that the detailed wording remained to be agreed, it is common ground that a contract of insurance came into existence as from the moment the slip was scratched. No doubt the parties contemplated that in the course of fleshing out the abbreviated wording of the slip in order to produce the full policy wording that contract might be amended and supplemented in some respects, but that does not detract from the fact that a contract came into existence on the terms contained in or evidenced by the slip itself. Moreover, I think it right to bear in mind that it is essential to the way in which the market operates that the slip should contain or identify all the terms of any real significance that are intended to form part of the contract.
19. Two established forms of law and jurisdiction clause are currently available to the market, NMA 1483, the Overseas Jurisdiction clause and NMA 1486, the English Jurisdiction clause. The wording of NMA 1483 is capable of being completed so as to provide for English law and jurisdiction, but that is clearly not what it was intended for and there is no evidence that it has ever been used for that purpose. If it were completed in that way, it would probably be queried by the Lloyd’s Policy Signing Office (now called Ins-sure) which is responsible for checking policy wordings before they are issued. If the parties intend to agree English law and jurisdiction there are other, more appropriate, ways of doing so. The slip is not a negotiating document; its purpose is to record the terms of the contract. In my view, therefore, the inclusion of NMA 1483 in the slip conditions does at least indicate agreement that the contract is to be subject to foreign law and jurisdiction. There may be cases where there exists for the parties a genuine choice between the laws and jurisdiction of two (or more) foreign countries, but such cases are likely to be rare and I should be surprised if in such a case the parties were to leave the matter open for subsequent agreement. In this case, however, that problem does not arise. The slip covered the provision of insurance to two Jamaican insureds in respect of assets located in Jamaica and I agree with Lord Neill that it is difficult to see what country other than Jamaica the parties could possibly have had in mind. One of the underwriters who scratched the slip, Mr. Michael Robertson, has said in a witness statement that if he had been asked to agree to Jamaican law and jurisdiction he would have considered himself free to refuse. He has also said that the underwriters “might well have insisted on [the contract] being governed by English law and jurisdiction”. I do not find that evidence very helpful. The answer to this question depends not on what underwriters thought the position was, nor on what they might or might not have pressed for in a negotiation, but on the construction of the slip itself. Of course, when construing the slip the court must take into account any relevant evidence of general market background as well as evidence of the circumstances surrounding the particular contract before it, but in fact there is no such evidence in the present case other than that to which I have referred. In my view when this clause is read in the context of the slip as a whole it is to be construed as meaning that the clause NMA 1483 is incorporated in a manner that will render the contract subject to Jamaican law and jurisdiction. At any rate, there is at the least a very strong argument to that effect.
20. Lord Neill submitted that although it does not say so expressly, NMA 1483 is to be construed as an exclusive jurisdiction clause. Whether a clause of this kind is intended to bear that meaning is a matter of construction in each case. The doubts expressed by Hobhouse J. in S. & W. Berisford Plc v New Hampshire Insurance Co. [1993] 1 Lloyd’s Rep. 631, 636 may be less pressing now that proceedings by insurers seeking relief of the kind sought in the present case have become more common. At any rate, Miss Prevezer on behalf of the claimants accepted that if the clause were completed it would be appropriate to construe it as an exclusive jurisdiction clause and I am content to proceed on that basis.
21. The fact, therefore, that there is at least a very strong argument that the parties incorporated into the contract clause NMA 1483 providing for Jamaican law and, by implication, for exclusive Jamaican jurisdiction in my judgment provides a compelling reason for setting aside the order giving permission to serve the claim form out of the jurisdiction.
22. In these circumstances I can deal with Lord Neill’s second argument rather more shortly, but in order to do so it is necessary to explain the circumstances surrounding the service of the first Jamaican proceedings.
23. The writ in that action was issued on 27^th July 2001. It was served on R.S. Gamble & Son Ltd on the grounds that they were the claimants’ agent for service under NMA 1483, having been designated as such in the previous years’ covers. However, although, for the reasons I have given, I think the parties had agreed to Jamaican law and jurisdiction, I do not think it can be said that the claimants had yet nominated R.S. Gamble & Son as their agents for service in Jamaica. On 13^th August 2001 the claimants’ lawyers in Kingston, Dunn, Cox, Orrett & Ashenheim, wrote to the defendants’ lawyers, Myers, Fletcher & Gordon, saying that there had not been proper service because the Overseas Jurisdiction Clause had not been agreed as part of the contract. They continued

“Be that as it may, we now have instructions to accept service on behalf of the defendants and we would therefore request that you send us sealed copies of the writs and statements of claim.”

In response to that request Myers, Fletcher & Gordon served the writs and statements of claim on Dunn, Cox by post on 14^th August.

24. Lord Neill submitted that by inviting the defendants to serve the proceedings without any form of qualification the claimants submitted to the jurisdiction in Jamaica. There is evidence in the form of a letter from Myers Fletcher & Gordon, which is not challenged by the claimants, that the Civil Procedure Code of Jamaica directs that the procedure and practice for the time being of the Supreme Court in England shall apply insofar as no other provision is expressly made by law or by the Rules of Court. In the absence of any decision in Jamaica on the point at issue English authorities are of high persuasive authority, although they are not binding on the Jamaican courts. According to that letter, which is not challenged on this point either, there is no Jamaican authority on the effect of accepting service on behalf of a defendant without qualification. Accordingly, Lord Neill drew my attention to the cases of Manta Line Inc. v Sofianites [1984] 1 Lloyd’s Rep. 14 and Sphere Drake Insurance Plc v Gunes Sigorta Anonim Sirketi [1988] 1 Lloyd’s Rep. 139 which he submitted effectively conclude the matter in favour of the defendants.
25. In Manta Line v Sofianites the defendant was resident in Greece. An order was made giving the plaintiff leave to serve the proceedings on him out of the jurisdiction, but before service had been effected his solicitors said that they would accept service in this country. The writ was therefore served on them, but they subsequently applied to set aside service on the grounds that it was not a proper case for service out of the jurisdiction. In the Court of Appeal Sir John Donaldson M.R. reviewed the authorities relating to the conferring of jurisdiction by service of proceedings in this country, either on the defendant personally or on an agent duly authorised to accept service pursuant to an agreement between the parties. He concluded that it is the fact of service within this country on the defendant or his agent which provides the court with jurisdiction rather than an agreement to submit to the jurisdiction. Nonetheless, he concluded that it is open to a solicitor to agree to accept service here on behalf of his client on terms which preserve his client’s right to challenge the jurisdiction. In the case before him, however, the defendant’s solicitors had agreed to accept service in unqualified terms and the result was the same as if the defendant himself had been served within the jurisdiction.
26. Sphere Drake Insurance Plc v Gunes Sigorta Anonim Sirketi illustrates the contrary position. In that case the defendants’ solicitors wrote to the claimants’ solicitors stating that they had instructions to accept service of proceedings on behalf of the defendants, but only on the basis that they reserved their right to contest the court’s jurisdiction. The Court of Appeal accepted that the agreement between the parties was clearly made on terms that the defendants would be free to contest the jurisdiction as if they had been served abroad and that in those circumstances the defendants’ right to challenge the jurisdiction had been preserved. In the course of his judgment Neill L.J. drew attention to the need for particularity and precision when making arrangements of this kind.
27. Although it does not deal with the point specifically, it is implicit in the letter of Myers, Fletcher & Gordon that the basis of jurisdiction in Jamaica, as in England, is the service of proceedings on the defendant within the jurisdiction. The only real question in the present case, therefore, is whether the invitation to serve the proceedings contained in Dunn, Cox’s letter of 13^th August is to be construed as being subject to a reservation of the claimants’ right to contest the jurisdiction of the Jamaican courts. Miss Prevezer pointed out that when the letter was written the claimants had already begun the present proceedings and had obtained permission to serve them on the defendants out of the jurisdiction on the basis that there had been no agreement as to the manner in which NMA 1483 should be completed and therefore no choice of foreign law or jurisdiction. She also relied on the fact that in their letter of 13^th August Dunn, Cox had expressly drawn attention to the claimants’ assertion that the Overseas Jurisdiction clause had not been agreed. She submitted that it was implicit in these circumstances that the offer to accept service was intended to be without prejudice to the claimants’ right to contest the jurisdiction as if service had been made abroad.
28. I am unable to accept that. The thrust of the letter of 13^th August, taken as a whole, is that the defendants had attempted to serve the proceedings in a manner not provided for by the contract, but that it did not matter because Dunn, Cox now had instructions to accept service on behalf of the claimants. The final paragraph of the letter is entirely unqualified and I find it very difficult to see how it can be construed as reserving their right to challenge the jurisdiction. In my judgment Lord Neill is right, therefore, in submitting that the claimants have submitted to the jurisdiction in the first Jamaican action. This is a significant factor in its own right since one half of the dispute will presumably now proceed to trial in Jamaica in any event. It could scarcely be in the interests of the parties or conducive to the ends of justice for the issues raised by the claimants in these proceedings to be tried separately.
29. The second Jamaican action relates to a claim under the previous year’s cover. Each of the defendants to that action, including the Wellington syndicate and the Cottrell & Maguire syndicate, entered conditional appearances, but only the Cottrell & Maguire syndicate has in fact sought to contest the jurisdiction. As a result the conditional appearances of the other parties have now become unconditional. The Cottrell & Maguire syndicate has given notice of avoidance of the cover on the same grounds as are relied on by the claimants in the present action. It is not clear whether any of the other underwriters will follow suit, but it is at least possible that the same or very similar issues relating to avoidance of the cover will arise in the second Jamaican action as arise in this action.
30. Other factors relating to the nature of the proceedings seem to me to be more evenly balanced. The investigation into the nature and circumstances of the accident in February this year has yet to reach a conclusion and it is still unclear, therefore, what issues may arise between the defendants and the insurers over and above those relating to the validity of the cover. However, if there is any significant dispute about the scope of cover or the amount of the loss, it is likely that much of the evidence, both oral and documentary, is to be found in Jamaica. On the other hand, evidence relating to the issue of the claimants’ right to avoid will come mainly, if not entirely, from this country. The evidence suggests that there is no significant difference between English law and the law of Jamaica; on the other hand, it is probably fair to say that the English courts are somewhat better placed than the courts of Jamaica to determine disputes in relation to the operation of the London insurance market. However, looking at the matter as a whole, I do not think that these factors on their own point strongly in favour of England as being clearly the more appropriate forum for the trial of the action as a whole.
31. For all these reasons I have reached the clear conclusion that the order giving permission to serve the defendants out of the jurisdiction should be set aside. It is unnecessary, therefore, for me to consider in any detail the defendants’ further submission that the order should in any event be set aside on the grounds that the claimants failed to make full and frank disclosure when making their application for permission to serve out of the jurisdiction by failing to draw the court’s attention to the fact that the cover for the previous years had included a Jamaican Overseas Jurisdiction clause. It might have been wiser for the claimants to have mentioned that the insurance for the previous years had included a clause of this kind, if only to forestall this very argument, although for the reasons I have already given I do not in fact think that it is relevant to the construction of the slips in the present case. If it had been mentioned, it would no doubt have alerted Langley J. to the possibility that the defendants would seek to mount the present challenge to the jurisdiction, but I very much doubt whether it would have led him to refuse the order once it was apparent that the application of NMA 1483 was in dispute. Unless the position was so clear as to make it improper to give permission at all (which was not the case) the issue could only be decided after hearing both parties. I am satisfied that there was no deliberate attempt to mislead the court and in those circumstances I should not in any event have been willing to set aside the order simply on that ground.
32. Nonetheless, for the reasons already given I have reached the conclusion that the defendants’ application to set aside the order of Langley J. must succeed. The claimants did not pursue their application for an injunction to restrain the defendants from continuing the proceedings in Jamaica which will accordingly be dismissed. In those circumstances nothing would be served by joining other parties to the proceedings and accordingly the application to join Ecclesiastical Insurance as an additional party must also be dismissed.