Aspen Underwriting Ltd & Ors v Credit Europe Bank NV

Following the judgment of the court on 27 July 2017 [2017] 2 Lloyd’s Reports 295 the court has now to decide (on the basis of written submissions) whether it has jurisdiction in respect of the Claimants’ claim for damages for misrepresentation pursuant to section 2(1) of the Misrepresentation Act 1967. This particular point was not dealt with in my earlier judgment.

Section 2(1) of the Act provides as follows:

“(1)

Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.”

I accept that the Claimant has the better of the argument that a claim for damages under the Act is a claim relating to tort within the meaning of article 7(2) of the Brussels Regulation; see the authorities set out Mr. MacDonald Eggers QC in his skeleton argument at paragraphs 25-30 and in particular Dunhill v Diffusion Internationale [2002] 1 AER (Comm) 950 at pp.963-965 per Mr. Rokison QC.

For the reasons given in my judgment at paragraph 79 the harmful event occurred in England and so this court has jurisdiction over the claim for damages under the Act.

Mr. Berry QC has submitted that the claim depends upon proof of a contract between the Underwriters and the Bank and on that basis the reasoning in paragraphs 76-77 of the judgment dictates that the claim is not a matter relating to tort. However, I do not consider that the conclusion follows from the premise. Notwithstanding that the success of the claim depends upon proof of a contract between the Underwriters and the Bank the claim remains one which relates to tort. The decision in Dunhill v Diffusion Internationale determined that to be the case and I consider that I should follow it.

I have given the Bank permission to appeal in respect of my other conclusions. I am not persuaded that there is a real prospect of persuading the Court of Appeal that the decision in Dunhill v Diffusion Internationale was wrong. But since the point is closely related to my decision on damages for misrepresentation (not under the Act) on which permission to appeal has been granted I consider that that is a compelling reason for granting permission to appeal on this point also.