Incident Report: Jonathan Hutchinson

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On the early evening of 3 June 2016, Mr Hutchinson, then 34, was found floating in a swimming pool at the entertainment venue, Ocean Beach Club, operated by the Second Defendant. Mr Hutchinson was pulled from the water and survived. He has life-changing injuries, which include being tetraplegic and requires round-the-clock care. Mr Hutchinson has no memory of the incident. 

The first issue was whether the English court had jurisdiction over the claim. The claim against Mapfre was brought under Spanish law (Article 76 of the Insurance Contracts Act 50/1980), which enabled a claim governed and actioned under Spanish law directly against the liability insurer of the party who is primarily liable instead of, or as well as, the primary party. Article 13(2) of the Recast Brussels 1 extends the right of an insured to pursue an insurer in the Member State of his own domicile if such a direct claim is allowed under the law applying to the insurance contract (Odenbreit v FBTO Schadeverzekeringen NV (Case C-463/06)).  

The causes of action in tort and for breach of duty were stayed pending the determination of the CJEU in Cole v IVI Madrid SL (Claim no. E90BM227). The claim against Mapfre was determined to be within the jurisdiction of the Court because the evidence before the Court that there was no arguable case against it failed on its merits. Mrs Justice Andrews further said that even if that was wrong, the Claimant has, at the very least, a plausible evidential basis for finding that the clause in question is not binding upon him or a third party to the contract. Article 13(2) of Recast Brussels 1 therefore applies. 

In the claim against Ice Mountain under Section 4 of Chapter II of Recast Brussels 1 and Articles 17 and 18 of that Regulation, the Court found that the Club was directly targeting British consumers with its advertising. The Court found the argument that because Mr Hutchinson had likely approached the balcony through the VIP area, to which his ticket did not permit him access, before falling into the pool, unconvincing in light of the fact standard ticket holders had access to the pool. The Court found that it had jurisdiction over the contractual claim against Ice Mountain. 

As to the non-contractual claims against Ice Mountain, the issue of whether Ice Mountain could be joined to the claim against Mapfre under Article 13(3) was deemed to be unnecessary to determine at this stage, on account of the Claimant's submission that the appropriate course of action was to await the outcome in Cole. Ice Mountain also submitted that the Court of Ibiza was already seized of a civil claim for damages arising out of Mr Hutchinson's accident and therefore by virtue of Article 29 of Recast Brussels 1, the Court must stay these proceedings until such time that the Spanish court determines jurisdiction. The Court found that there were no merits and no realistic risk of inconsistent judgments with the proceedings for personal injury in Spain. Proceedings appeared to have been provisionally dismissed, and the criminal proceedings were at an early stage. The non-contractual claim against Ice Mountain remains stayed pending the CJEU reference in Cole. 

Mapfre argued that Mr Hutchinson does not have a good arguable case that Mapfre's insurance covers Ice Mountain's liability to him under a judgment of an English court because of the following clause: 

“This policy will only cover claims submitted within Spanish jurisdiction for events that have taken place in Spain leading to liability or other obligations imposed in accordance with legal provisions in force within the territory of Spain.”

Disputing expert evidence on the nature and effect of that provision in Spanish law was evaluated. The Court drew on Société financière et industrielle du Peloux v Axa Belgium (Case 112/03) [2006] QB 251 and Assens Havn v Navigators Management Ltd (Case 368/16) [2018] with favourable authority. The Court relied on paragraph 39 of the CJEU reference in Axa Belgium, and determined that Mapfre cannot rely, as a matter of EU law, on this term to limit its liability to claims brought against policyholders in Spain, so to exclude Mr Hutchinson's right to bring his claim in his own domicile.

In respect of the Spanish law arguments, the Court was yet to receive the Spanish law experts' full view in light of the early stage of proceedings. The Court nevertheless found Mr Villacorta's argument that the clause was rights-defining because it relates to something that must occur after the event giving rise to the insured's liability. The Court acknowledged that there are respectable arguments to be aired on both sides, and the Court is unable to fairly reach a view without the experts giving their evidence and being subject to cross-examination. The Court found that there was nevertheless a plausible evidential basis that the policy would oblige Mapfre to indemnify Ice Mountain in respect of any liability to Mr Hutchinson in respect to liability under Spanish law. 

Consequently, the challenges to jurisdiction by both defendants were dismissed, save the non-contractual claims, which are stayed until the outcome in Cole is reached. 

References

Jonathan Hutchinson v Mapfre Espana Compania de Seguros Y Reaseguaros S.A. and Ice Mountain Ibiza S.L. (t/a Obeach Ibiza) [2020] EWHC 178 (QB). Available at https://caselaw.nationalarchives.gov.uk/ewhc/qb/2020/178 accessed 23 December 2022. 

Citation. Jacklin, D. 2022.  Incident Report: Jonathan Hutchinson. Water Incident Research Hub, 23 December.