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The Brussels Regulation

Council Regulation 41/2001, “the Brussels Regulation” decides the proper jurisdiction for the determination of disputes in the EU.

Its authors must have been chess fans, dreaming of the great games of the early twentieth century when Capablanca and Lasker dominated the game. That is, it is hoped the authors had dreams.

In a chess dream one does not want to know that Capablanca and his wife Gloria did not get on well and had affairs, even if one does want to know that he became a Cuban civil servant “…with no particular duties but to be famous and go about putting Cuba on the map”. (We have aspirants in Ireland for jobs like that, hence my inappropriate interest).

Likewise, we provide no market for books entitled “The Philosophy of the Unattainable” [Lasker].

No, indeed, chess players should be seen and not heard. They should play the game and recede into the darkness (better still, the languorous white light of the Cuban midday), when the game is finished.

That half-remembered, half-forgotten realm of austere thought seems to be the birthplace of the Regulation. The Regulation has the appearance of simplicity but it is deceptive. It has the capacity to throw up great surprises from apparently straightforward circumstances.

Who would have thought that it would favour the Irish legal profession?

What else can we conclude when we see the Regulation in action in Knight v Axa Assurances [2009] EWHC 1900 QB?

The Plaintiff was injured in a road traffic accident in France. The Defendant was the insurer of the French motorist who had injured him. Under French law the Plaintiff had a direct claim against the Defendant as insurer. That claim was for the payment of compensation, and therefore was a debt. The place of payment of debts is, generally, where the Creditor is domiciled. Furthermore, the Plaintiff was a beneficiary, under French law, of an insurance arrangement and Article 9 (1) (b) of the Brussels regulation applied.

In Ireland, we have not introduced provision for injured persons to claim against the insurers of the malfeasor who caused the loss. This provision is available in the UK and, it would appear from Knight v Axa, France.

Therefore, in Ireland, third parties (other than named beneficiaries) are not “beneficiaries” under policies and cannot invoke Article 9 (1) (b) of the Brussels regulation to issue proceedings in their home state. They have to sue here, being the place where the wrongful event happened and the defendant resides.