Case in Bried continued Outcome of appeal on point of law
As noted earlier, and discussed in detail here, the Court of Appeal found that MMI was not entitled to “spike” its claim. The reason was that there was an implied good faith requirement which required that the claim be presented by reference to each year’s contribution to the risk, rather than against a single year.
Comment
The case serves as a rare example of the court both granting permission to appeal and allowing an appeal under section 69 of the Act. As we reported last year (see here), only a relatively small number of cases obtain permission to appeal, and then only a fraction of those cases succeed on appeal.
A significant factor in this case was the importance of the issues in dispute to the insurance and reinsurance industry. This allowed the case to proceed through the “general public importance” gateway, which only required that the decision be open to “serious doubt”. Had the case not been one of general public importance, MMI would have needed to show that the decision was “obviously wrong” – a much more difficult test to satisfy.
It remains to be seen whether this decision will have an impact on challenges to commercial arbitral awards more generally, or whether its impact will be limited by its particular fact pattern. It seems likely that section 69 appeals will remain a relatively unpromising mode of challenge for the majority of commercial arbitrations, particularly in circumstances where most institutional rules exclude appeals under section 69 and few commercial disputes are likely to raise questions of general public importance. About the Authors Nicholas Peacock Partner, London Aaron McDonald Senior Associate, London LEGAL SERVICES FOR EVERY CHALLENGE To help you realise opportunities and manage risk, we combine legal expertise with a global perspective