Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018] EWCA Civ 268 (21 February 2018)

Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018] EWCA Civ 268 (21 February 2018)

The exclusion clause in the FGI policies does not extend to breaches of the subsequent Refinancing Agreement, as the clause must be construed in the context of the original litigation funding scheme and business common sense, and not by hindsight to cover future refinancing arrangements not contemplated by the parties. The application to amend the defence to plead breaches of the Refinancing Agreement was made far too late and would undermine finality in litigation.

Citation
[2018] EWCA Civ 268
Parties
Part 20 Claimant / Respondent: Nesbit Law Group LLP; Part 20 Defendant / Appellant: Acasta European Insurance Company Limited
Jurisdiction
England and Wales
Judgment Date
21 February 2018
Procedural Posture
Civil Appeal / Appeal From High Court (queen's Bench Division, Mercantile Court) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Interpretation of Exclusion Clauses, Amendment of Pleadings, Litigation Funding Schemes, Financial Guarantee Indemnity Policies
Insurance Law Contract Law Civil Procedure Interpretation of Exclusion Clauses Amendment of Pleadings Litigation Funding Schemes Financial Guarantee Indemnity Policies

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Parties

Nesbit Law Group LLP

Part 20 Claimant / Respondent

Acasta European Insurance Company Limited

Part 20 Defendant / Appellant

Procedural Posture

Civil Appeal / Appeal From High Court (queen's Bench Division, Mercantile Court) to Court of Appeal

Legal Issues

  1. 1 Proper construction of an exclusion clause in Financial Guarantee Indemnity policies
  2. 2 Whether the exclusion clause covers breaches of a subsequent refinancing agreement
  3. 3 Whether permission should be granted to amend the defence to plead breaches of the refinancing agreement

Ratio Decidendi

The exclusion clause in the FGI policies does not extend to breaches of the subsequent Refinancing Agreement, as the clause must be construed in the context of the original litigation funding scheme and business common sense, and not by hindsight to cover future refinancing arrangements not contemplated by the parties. The application to amend the defence to plead breaches of the Refinancing Agreement was made far too late and would undermine finality in litigation.

Court Disposition

Appeal dismissed

Orders

  • Amendment to plead the construction point allowed by consent
  • Application to amend to plead breaches of the Refinancing Agreement refused