De Cotta Law has a highly effective Personal Injury division, providing legal services not only to foriegn residents, tourists and visitors to Spain, but also professional services to international law firms including UK solicitors.
Here we publish an interesting case study from Stewarts Law, considered one of the UK's largest litigation only law firms, which specialises in high value and complex disputes.
This case study is about a UK Claimant who was sadly seriously
injured in an accident at a hotel while on holiday in Spain.
Canarias SL v Keefe (2013) – direct claims against
foreign insurers and joining the policyholder to proceedings before the English
In the recent case
of Hoteles Pinero Canarias SL v Keefe
the High Court held that the Claimant was entitled to add the Spanish domiciled
Hotel as a party to the proceedings before the English Court under Article 11
of Regulation 44/2011. The decision illustrates
how this provision can be used to ensure Claimants receive full compensation as
a result of the tort which forms the subject of their claim.
The Claimant in Keefe was seriously injured in an
accident at a hotel while on holiday in Spain.
Proceedings were issued against the Hotel’s insurer in England, a
procedural step which has been possible since the ECJ’s decision in Odenbreit. In Odenbreit
the ECJ interpreted Articles 9 and 11 of the Regulation as permitting a
Claimant to bring proceedings in their home Court directly against a foreign
insurer provided such a direct right of action exists under the applicable law. This decision had the potential to benefit UK
residents injured abroad enormously by allowing them to pursue Defendants based
overseas in their home Courts where the procedures tend to be more favourable
Due to concerns
over the extent of insurance coverage in Keefe,
in reliance on Article 11(3), the Claimant applied to join the Hotel to the
proceedings against the insurer. Article
11(3) states that if the law governing the direct right of action allows the policyholder
or the insured to be joined as a party to the proceedings then the [foreign]
Court shall have jurisdiction over them.
The Hotel appealed against the decision giving the Claimant permission to
add them to the English proceedings.
Dismissing the Hotel’s
appeal in the High Court, Judge Higgins decided that the proper administration
of justice made it essential for a Claimant to be able to pursue the Hotel and
its insurer in the same proceedings. The
relevant insurance policy had not been disclosed which meant there was a
question of insurance which needed to be determined as part of the ongoing
proceedings. To allow a separate claim
to proceed against the Hotel in the Spanish Courts would give rise to the stark
risk of irreconcilable judgments.
The Hotel argued
that there was no viable claim outstanding against its insurer because they had
agreed to indemnify but the judge dismissed this argument noting that causation
and quantum were still to be resolved and that the risk of the Claimant being
denied full compensation justified the Hotel’s joinder to proceedings. The claim against the Hotel could not be
characterised as one for uninsured loss; this formed part and parcel of the
original claim in tort and to find otherwise would potentially leave the Claimant
without full compensation. The European
Regulations formed part of Spanish law and the accident took place in a resort
popular with holidaymakers from other European countries; it was not
unreasonable for the Hotel to face legal action in the Courts of another Member
In Keefe the Claimant wanted to join the
Hotel to proceedings because there was a risk that the limit of coverage under
the relevant policy of insurance was not sufficient to provide full
compensation. One could also envisage a
situation where the insurer is insolvent or the policy of insurance is void for
some other reason. Those too would give
the Claimant good reason to want to pursue the policyholder directly as an
alternative to the insurer.
This decision is helpful
to Claimants who suffer serious injuries while abroad and reflects the purpose
of the European Regulations acting to protect the weaker party and ensure that
they can bring proceedings against a foreign defendant in their home
Court. If there are question marks over
the extent of the insurer’s obligations under the relevant policy of insurance
that require the Claimant to join the policyholder to proceedings then,
provided the applicable law permits a direct right of action, Article 11(3)
comes to the injured Claimant’s rescue.
They can then join the insured to proceedings in circumstances where
otherwise the Claimant might have been forced to pursue them in a foreign
 ECJ Case C-463/06 FBTO Schadeverzekeringen
NV v Jack Odenbreit
 While a direct right of action is permitted for road traffic
accidents across Europe pursuant to the Fourth Motor Directive, this is only
available in a limited number of countries for non-road traffic accidents. Spain is one such country and the Claimant in
Keefe was relying on Article 76 of
the Spanish Insurance Contract Act to their benefit.