Faraday Reinsurance Co Ltd v Howden North America Inc & Anor

This appeal raises a short point on the exercise of discretion by the Commercial Judge to refuse to set aside proceedings instituted in England by insurers against their American insured claiming (effectively) that they (the insurers) are not liable to their insured in respect of asbestos-related claims. To deal with the short point it is unfortunately necessary to set out the facts in some detail. I take them almost entirely from the judgment of Beatson J.

The underlying dispute in this case concerns one excess layer policy written by General Star International Indemnity Ltd (“GSIIL”) in respect of the liability of “Howden Group Ltd and/or subsidiary companies” (“Howden”) for asbestos claims. The period of insurance was 22nd July 1998 to 31st May 1999. With effect from 30th November 2010 all policies written by GSIIL, were transferred to the claimant, Faraday Reinsurance Co Ltd (“Faraday”) pursuant to section 111(1) of the Financial Services and Markets Act 2000.

Faraday issued proceedings on 6th December 2010. It did so after receiving a letter dated 23rd August 2010 on behalf of Howden from Charterbrook Associates LLC (“Charterbrook”) giving notice of occurrences which it was said might entitle Howden to claim under two subsequent policies. A later letter dated 14th January 2011 from Covington & Burling LLP (“Covington”) clarified that Howden also intended to refer to the 1998 policy.

Howden’s coverage litigation against lower layer insurers in respect of asbestos claims in Pennsylvania has been in progress since 2003, and related mass tort proceedings by victims of asbestos have been on foot since 1999. Until very recently, GSIIL and Faraday have not been involved. The ultimate underlying substantial issue between the parties arises because of the differences of approach by the Pennsylvania courts and the English courts to the insurance of asbestos-related claims. The first difference is whether exposure to a hazardous condition is itself an injury. Under English law (see Bolton MBC v Municipal Mutual Insurance Ltd[2006] 1 WLR 1492 not overruled in Durham v BAI[2012] 1 WLR 867) it is not, but under the laws of United States jurisdictions including Pennsylvania, a theory of multiple triggers of periods of insurance from exposure to manifestation has been followed: see the authorities based on Keene Corporation v Insurance Corporation of North America 667 F2d 1034 (1981), and in Pennsylvania, J.H. France Refractories v All State Insurance Co 626 A2d 502 (1993).

The second difference is that, in English law, but not in the relevant United States jurisdictions, the period clause is a fundamental provision of an insurance policy: see Municipal Mutual Insurance Ltd v Sea Insurance Company Ltd and others [1998] Lloyd’s Rep. IR 421 at 435-6 – “the stated period of time is fundamental and must be given effect to” – and Wasa International Insurance Co v Lexington Insurance Co [2009] UKHL [2010] A.C. 180 at [3], [39], [74] and [77]. There is also a difference between English and Pennsylvania law as to the relevant principles of the conflict of laws; it is in dispute whether that difference is substantial but, on any view, the English approach to determining the applicable law is concerned only with the circumstances at the time of contracting, whereas there is evidence that the approach in Pennsylvania permits consideration of factors applicable at the time of the dispute.

In the English proceedings Faraday seeks declarations that: (a) the policy by which GSIIL insured Howden is governed by English law and subject to the jurisdiction of the English courts; (b) as a matter of English law, effect must be given to the periods under each policy during which GSIIL was on cover, (c) under section 1 of each policy, Faraday is liable to indemnify Howden for any sums which Howden may become legally liable to pay in respect of claims made against it for damages, costs and expenses in respect or in consequence of personal injury and/or damage to material property only insofar as this happened (or occurred) during (and not before or after) the relevant policy period, and (d) under section 2 of each policy, Faraday is liable to indemnify Howden in respect of legal liability arising out of the matters set out in section 2 only insofar as (i) claims were made against Howden during the relevant policy period or (ii) claims have subsequently been made against Howden which arise out of any circumstances which could reasonably have been expected to give rise to a claim under section 2 of the policy, and of which AG Maclachlan Esq., of Howden Group Ltd, or a person nominated to act on his behalf in his absence shall have become aware during the relevant policy period. The application for permission to serve out (which originally related to all 3 policies referred to above) was made on 8th March 2011, permission was granted on 9th March by David Steel J, and Howden was served on 1st June.

Howden’s application for David Steel J’s order to be set aside was made on three grounds. First, it was said that it was not arguable that the policy was governed by English law. Secondly, there was a challenge to the utility of the proceedings. It was said that Faraday had failed to show that the present proceedings are justified and serve a useful purpose, because Faraday had instituted these proceedings in order to try and establish what was called “issue preclusion” on the above points in the Pennsylvania court or “deference” by the Pennsylvania court to the English court, but a judgment by the English court granting the relief sought in these proceedings would not achieve that purpose. Thirdly, it was said that, even if there is justification for the relief sought, Pennsylvania is the appropriate forum for these proceedings because of the longstanding insurance proceedings in Pennsylvania in relation to the dispute between Howden and its many historical insurers. After being served with these proceedings, Howden filed a motion to join Faraday/GSIIL as additional defendants to the most recent, 2011, Pennsylvania proceedings. Beatson J held that the proceedings did serve a useful purpose and that England was the convenient forum. There is now an appeal.

The policy is an excess public and products liability policy. It is a composite policy. It identifies the assured as “Howden Group Ltd and/or subsidiary companies” with an address in Renfrew, Scotland. Under the heading “Trading”, the policy stated “Glasgow, Scotland and various anywhere worldwide as per policy”.

The period of the policy was from 22nd July 1998 to 31st May 1999, both days inclusive. The limits of indemnity are £40 million excess £10 million per occurrence and, in respect of products liability and financial loss, in the aggregate annually.

The policy was placed in London by Lloyd Thomson Ltd, now JLT, London brokers, and is set out in a London market underwriting slip. The slip refers to London market institutions such as ILU and LIRMA (London Insurers and Reinsurers Market Association), and London’s “unique market reference” for numbering risks, although the pro forma containing these references is, save for the policy number, blank. GSIIL subscribed a 10% line on 28th September 1998.

The terms of the policy include a number of London market clauses; the Several Liability Notice LSW/1001 (Insurance) clause, and the brokers cancellation clause. GSIIL’s stamp uses London market abbreviations, denoting LIRMA as the policy signing and premium collecting office and providing for “NCAD”, notice of cancellation at anniversary date. The policy states that liability is “as more fully detailed in the underlying policy wording”.

The underlying policy provided public and products liability cover of £9 million excess of £1 million. It too is a London market policy, broked and underwritten in London, and containing a number of London market clauses. These are: the Institute of London Underwriters radioactive contamination exclusion clause, the “several liability” notice, and the brokers cancellation clause. The policy provides that claims are to be notified to Lloyd Thomson Ltd in London. It also refers to the Motor Vehicles (Authorisation of Special Types) Order 1969, SI No 344.

The underlying policy provides inter alia:

“in the event of reduction or exhaustion of the aggregate limit or limits contained in such primary and/or underlying policy or policies, solely by payment of such losses in respect to accidents or occurrences during the period of such primary and/or underlying policies, it is hereby understood…that such insurance as is afforded by this policy shall apply in excess of the reduced underlying limit or, if such limit is exhausted, shall apply as underlying insurance and shall pay excess of the assured's retention where applicable…”,

“[T]he underwriters will indemnify the assured…[in respect of] any sums which they may become legally liable to pay…in respect of claims made against them for damages and costs and expenses in respect of or in consequence of [personal injury and/or loss of or damage to property] happening anywhere in the world during the period stated in the schedule” (section 1),

“The indemnity granted by the product liability extension shall apply only in respect of "claims made against the assured during the period of insurance specified in the Schedule hereto or claims against the assured which may subsequently arise out of any circumstances which could reasonably be expected to give rise to a claim…and of which [the assured] shall become aware during the period of insurance specified in the Schedule” (section 2), and

“[T]he term 'Occurrence' whenever used…shall mean a single occurrence or claim or a series of claims arising out of any one event or attributable to a single cause” (the general definition section).

There is no express choice of law or jurisdiction clause but Beatson J has held that the policy was, in the light of its London connection, governed by English law and there is now no challenge to that part of his decision.

Since 1999 numerous suits have been brought against Howden in the United States alleging that, as Buffalo Forge's successor, it is liable for injuries caused by exposure to asbestos products manufactured by Buffalo Forge. Howden is insured under many insurance policies for the period from 1961 to June 2002. The majority of the insurers are United States insurers. In 2003 Howden began proceedings in the United States Federal District Court for the Western district of Pennsylvania against numerous insurers who provided primary and first layer occurrence cover to it and its predecessors against inter alia asbestos liability. It did so in that court because (see Mr Enock's first statement, paragraph 55) the 1993 stock purchase agreement between them contained a choice of forum clause, in the case of proceedings by Howden, exclusively favouring a Federal or state court in Pittsburgh Pennsylvania and the 2003 proceedings inter alia concerned a dispute between Howden and Ampco-Pittsburgh as to the allocation of rights to insurance cover between them under that agreement. Until June 2011 there were no proceedings against GSIIL or Faraday but the litigation included claims against the primary policy in the “tower” of cover which includes the policy subject to this litigation.

The 2003 proceedings were settled in September 2005 after negotiations supervised by Judge Conti, the judge with conduct of those proceedings. The settlement included comprehensive asbestos funding agreements. In general terms, Howden Buffalo and Ampco-Pittsburgh agreed to share access to certain primary and other policies issued to Buffalo Forge and Ampco-Pittsburgh, and the insurer defendants in the 2003 proceedings agreed to share in the cost of defending claims involving Howden Buffalo and Ampco-Pittsburgh.

A second coverage action was instituted in 2009 and is currently in progress before Judge Conti. Howden brought claims against excess insurers whose policies were or would soon be triggered by exhaustion of the underlying primary and umbrella policies in certain years, including a direct claim by it under the policy which is immediately underneath the policy as issued in these proceedings. Howden did not, however, name as defendants insurers such as GSIIL (now Faraday) which had issued or subscribed only to higher level excess policies. This was (see Mr Enock's first statement, paragraph 66) because the asbestos proceedings had not had an impact on those policies and it was uncertain whether it would do so. As a result of the factual and legal similarities between the earlier and the more recent proceedings, Judge Conti has conduct of the 2009 proceedings.

In the 2009 proceedings settlements have been reached with some of the insurers, but not with HDI-Gerling Industrie Versicherung AG (“Gerling”) or New Hampshire Insurance Company (“New Hampshire”). That litigation remains pending before Judge Conti and pre-trial procedures continue. Gerling unsuccessfully applied to remove itself from the 2009 proceedings on jurisdictional and forum non conveniens grounds.

In February 2011 a third coverage action was instituted in the Federal District Court. Ampco-Pittsburgh brought this against some 20 insurers which had issued excess policies to it in part of the period in which it owned Buffalo Forge seeking declarations that Howden had no rights under those policies. Howden filed a counterclaim and a cross-claim against the insurer-defendants.

After being served with the present proceedings, on 14th June Howden applied to join all solvent insurers which had subscribed to the 1998 second excess policy, including GSIIL and Faraday, as additional defendants to its counterclaim. On 11th July Judge Conti granted Howden's ex parte application. Faraday and GSIIL have since applied to challenge both the assumption of jurisdiction and the joinder of Faraday but that challenge has now failed before Judge Conti whose reasons were handed down on the same day as but subsequent to the oral argument on this appeal.

Neither the 2003 nor the 2009 proceedings were brought against GSIIL, Faraday or other higher level excess insurers. Faraday's involvement started with the letter dated 23rd August 2010 from Charterbrook to which I have already referred. That letter was addressed to General Re. It stated that it was advising General Re:

The letter also stated that 13,500 Underlying Asbestos Suits had been instituted, that Howden Buffalo had paid or agreed to pay some US $1.75 million in indemnity under these claims and described the asbestos funding agreements and the methodology agreed “for apportioning Howden Buffalo's and Ampco-Pittsburgh's asbestos-related defence and indemnity costs to all primary and umbrella policies that do not exclude coverage for asbestos claims”. It concluded by stating that Howden would advise GSIIL of material developments in the Underlying Asbestos Suits and updates on the status of any impairment of underlying limits and reserving all its “rights under the policies and applicable law”.

At the time Faraday issued proceedings on 6th December 2010 it took no steps to serve the proceedings or to disclose the existence of the claim form to Howden or its lawyers, but, in a letter dated 8th December, replied to Charterbrook. Apart from raising the question of the first policy, this reply stated that it would be helpful to have further understanding of how claims against Howden Buffalo “might impact the policies” and asked a number of questions. There followed the kind of correspondence one often sees in trans-national insurance disputes.

After the grant of permission to serve out, a letter dated 16th March 2011 to Covington’s Washington DC office summarised Faraday’s understanding of the method under the asbestos funding agreements for allocating indemnity and defence costs between policies and stated that, if that understanding was correct, the method “is different to the English approach to the allocation of asbestos claims” and that “it appears that the policies need to be interpreted under English (UK) law”. The letter also reiterated the request for information about how underlying layers of cover have been exhausted in past years in order to assist Faraday in determining the risk of claims being made on the GSIIL policies.

Covington replied in a letter dated 25th April 2011. This stated that Howden did not agree that English law applied or that Faraday had accurately summarised it, but that “because Howden is not presently seeking coverage from [GSIIL], we think it prudent to defer a discussion on this topic”. The letter set out Howden's position that the underlying policies for 1999/2000 and 2000/2001 had been exhausted through payments of inter alia asbestos claims subject to the asbestos funding agreements. The letter reserved all Howden’s rights “under the policies and applicable law”.

These proceedings were served on Howden on 1st June. In further correspondence between the parties' solicitors, Covington did not agree that English law and English jurisdiction applied to the policy, saying also that Covington did not accept that England was the proper forum for the resolution of any dispute involving it.

Beatson J held that in the light of Howden’s undertaking not to seek indemnity under the later policies referred to in Faraday’s proceedings, the permission to serve should be set aside in so far as it had been given for those later policies. As regards the first policy, however, he held that it was governed by English law, that the proceedings did serve a useful purpose and that England was the convenient forum for the claim. Mr Jacobs QC for Howden has not challenged the first and third of those decisions but submits (again) that the proceedings have no useful purpose and that the judge did not deal adequately with his contention that, on the evidence the Pennsylvania court would not be precluded by any decision of the English court.

Mr Jacobs submitted

the claims made by Faraday as summarised above amounted to an assertion that Faraday were not liable to respond to claims under the policy as a matter of English law;

this assertion was tantamount to a claim for a declaration of non-liability and that, according to well-established authority, the court should scrutinise the claims with care in order to ensure that the proceedings had a utility, see Camilla v Granadex, [1976] 2 Lloyds Rep. 10, Insurance Company of Ireland v Strombus [1985] 2 Lloyds Rep. 138 and New Hampshire v Phillips Electronic[1998] CLC 1062;

the only “utility” relied on by Faraday before the judge was the asserted “issue preclusion” in Pennsylvania which (it was said) an English judgment would enjoy;

the evidence showed that the courts in Pennsylvania would not regard any decision by the English court either to the effect that the policy was governed by English law or to the effect that Faraday was not liable thereunder as precluding them from coming to their own conclusions on those matters by reference to any law which the Pennsylvania courts might find to be appropriate;

that the judge’s conclusion (in para 86) that it was “not appropriate to resolve the conflict in the evidence before the court as to the position as to preclusion under Pennsylvania law” was wrong because the judge should have assessed that evidence and, had he done so, would have concluded that Faraday had not shown a good arguable case that an English judgment would preclude any issue in Pennsylvania.

Mr Lockey QC for Faraday accepted that he had to show that the English proceedings would be useful (or, conversely, would not be an exercise in futility) but submitted that they did have a beneficial purpose. He said:-

it was now accepted that there was a good arguable case that the policy was governed by English law and any commercial judge would conclude, at any trial, that it was so governed;

it was in that event useful to have the meaning of the policy declared so that any court anywhere in the world would know what its proper construction was and whether the events claimed to trigger its response did, in law, do so;

the evidence about issue preclusion was not all one way and one could not be certain that the Pennsylvania court would not decide they would be bound by a decision of the English court to the effect that the policy was governed by English law, or, if the English court decided that English law applied, a decision to the effect that the policy did not cover Howden’s claims, if that was the English court’s decision;

even if the Pennsylvania court did decide that they were not bound to follow an English decision, it might still be assisted by knowing what English law was;

even if the Pennsylvania court paid no attention whatever to an English judgment, that judgment might well still be useful in the courts of any country where a Pennsylvania judgment might be sought to be enforced;

those matters were all effectively rehearsed before the judge whose discretion in refusing to set aside the service of the proceedings on Howden in Pennsylvania should not be upset by this court; to the extent that his decision that the proceedings did serve a useful purpose was more accurately described as an exercise of judgment rather than an exercise of discretion, it was still a judgment with which this court should be reluctant to interfere.

It would be idle to pretend that the English courts and the American (including the Pennsylvania) courts see eye to on the question of the liability of insurers to respond to asbestos claims. The English courts do not accept the triple trigger of liability, nor do they accept that insurers are liable if the relevant trigger does not occur within the strict time limits of the policy. In Wasa v Lexington cited above the House of Lords held, for example, that a reinsurance contract, if it is governed by English law, does not respond to an American insurer which is required to pay in response to American notions of insurer-liability, unless it can be shown that the insurer’s liability arose during the currency of the English policy. In these circumstances it is inevitable that differing conclusions may be arrived at by courts in England from those that would be arrived at in (at any rate some) states in America.

This might not greatly matter if common rules existed to determine the proper law of the relevant insurance policy. But inevitably different jurisdictions may have different rules to determine that question. Judge Conti’s preliminary assessment is that it is unlikely that English law will be held to govern the policy in issue in this case. Mr Jacobs has accepted, however, that there is at any rate a good arguable case that an English court (if the proceedings continue) will hold that English law governs the policy. That again is a position which the court in each country has to accept.

It is in these circumstances that the judge decided that it was inappropriate to resolve issues of preclusion under Pennsylvanian law and to exercise his discretion to allow Faraday to continue its proceedings. Whether it is described as an exercise of discretion or an exercise of judgment is little more than a matter of vocabulary. The judge was clearly aware of the need to ensure that the proceedings would serve a useful purpose and he directed himself accordingly, see paras 52 and 75ff. In these circumstances the court should, in my view, be slow to interfere.

Mr Jacobs’ main argument that the judge should have resolved the conflict of evidence as to “issue preclusion” of an English decision in Pennsylvania is misplaced. It is inappropriate to have set battles about foreign law resolved at an interim stage of the proceedings. It only increases unnecessary expense and delay when the parties should be concentrating on getting a determination of the substance of the issues between them. The judge is entitled (as Beatson J did) to take a broad view of the suitability of the proceedings for determination by the English court. He said (para 81) he could not conclude that Faraday had not shown that the proceedings had utility. The somewhat inelegant double negative does not mean (as Mr Jacobs somewhat weakly contended) that the judge got the burden of proof wrong. He did accept that it was for Faraday to show that the proceedings did have utility and he concluded that Faraday had so shown. I agree and that should really be the end of the matter.

Mr Jacobs submitted that Faraday had tied themselves irrevocably to proving “issue preclusion” and that, if the judge thought it was inappropriate to come to a positive conclusion on the point, Faraday should have failed. But the mere fact that the judgment does not specifically mention the point that, on any view, an English judgment about liability in English law could be useful if a judgment were sought to be enforced outside Pennsylvania does not mean that he did not have the point in mind. He certainly had in mind Mr Lockey’s other point that it might assist a Pennsylvania court to know what English law is (para 82 of the judgment).

In the New Hampshire case Phillips LJ (as he then was) gave guidance as to the correct approach. He said this:-

I would add that when permission to appeal is sought on a jurisdictional issue in an international insurance dispute, any applicant for permission to appeal should, as part of the duty to make proper disclosure on what is an ex parte application, draw the above remarks of Phillips LJ to the specific attention of the court and say why in the particular circumstances of the case, they do not furnish good reason for refusing permission to appeal.

I agree that this appeal should be dismissed for the reasons cogently set out by Lord Justice Longmore.

I take the liberty of adding a word on his description of Mr Justice Beatson’s judgment as an exercise of discretion (paragraph 1) and his suggestion (in paragraph 32) that whether one describes it as an exercise of discretion or an exercise of judgment “is little more than a matter of vocabulary”.

At the risk of being considered a pedant, and conscious that decisions of this kind were described as an exercise of discretion by Phillips LJ in the passage cited by my Lord at paragraph 35, I venture to suggest that there is a relevant distinction between the two things.

A discretion, at least in principle, comes into play where two or more equally legitimate courses are open to a judge and the choice is not constrained by law or dictated by facts. Here there will ordinarily be no possibility of review or appeal unless the judge can be shown to have taken his eye right off the ball.

This was not the present case. Mr Justice Beatson’s task was to arrive at a reasoned judgment as to whether the proceedings had some utility. His grounds for finding that they did, and the complicated context in which he had to consider them, were the focus of the arguments before us. The appellants’ submission that he had come to the wrong conclusion was an appellate argument appropriate to challenging a judgment. Had the decision been a true exercise of discretion, any attack on it would have had to be markedly more radical.

Although I happen to agree with Sir Stephen Sedley that there is a difference between an exercise of discretion and a (value) judgment, it matters not in this case for Beatson J was entitled to reach the conclusion he did for the reasons Longmore LJ has explained. I too would dismiss the appeal.