In a recent post on our Insurance Notes blog, Sarah McNally and Hannah Warren consider the judgment handed down by the Court of Appeal in UnipolSai Assicurazioni SpA v Covéa Insurance Plc [2024] EWCA Civ 1110 (30 September 2024).
The case concerned an appeal on a point of law under section 69 of the Arbitration Act 1996 ("AA 1996") by the reinsurer against an award (the Covea award) rendered by Sir Stephen Tomlinson, Michael Crane KC and Dominic Kendrick KC. In the High Court, Foxton J dismissed the reinsurer's section 69 challenge. This decision was upheld by the Court of Appeal.
The decision is noteworthy because parties often exclude the right to appeal on a question of law, resulting in section 69 appeals rarely being brought. Such claims even more rarely succeed as the threshold for leave to appeal under section 69(3) AA 1996 is seldom met. Recently, the UK Supreme Court has also emphasised the need for judicial intervention to be kept at a minimum when considering challenges against arbitral awards: Sharp Corp Ltd v Viterra BV [2024] UKSC 14. This is consistent with the general principle set out in section 1(c) AA 1996 that 'the court should not intervene except as provided'.
In dismissing the appeal the Court of Appeal emphasised the distinction between an 'evaluative judgment on the facts as they were found by the tribunal' and true errors of law (at [137]). Applying basic principles of contractual interpretation that the text is to be given its ordinary meaning, as construed in its relevant context, the Court of Appeal found that the decisions of the tribunal and of Foxton J were 'plainly correct' (at [95], [128]). Consequently, the reinsurer was required to provide cover as the COVID-19 outbreak and the subsequent closure of schools and nurseries was found to be a 'catastrophe', the key term in the parties' contract.
The full post can be found here.
For more information, please contact Sarah McNally or Hannah Warren, or your usual Herbert Smith Freehills contact.
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