Case Nos: CL-2022-000294; CL-2022-000557; - [2025] EWHC 2529 (Comm)

Several or Joint liability?

There was an argument as to whether the order for War Risks Insurers to bear (65% of) AerCap’s costs should be on a joint and several basis or should be on the basis that each insurer is ordered to pay a proportion of the relevant costs by reference to their respective lines on the war risk section of the LP insurance. In this regard War Risks Insurers referred me to the decision in Rowe v Ingenious Media Holdings Plc [2020] EWHC 235 (Ch) for the proposition that there is no default rule in this regard, but the court should consider what order is appropriate in the circumstances of the case.

In the present case, given that each insurer’s liability under the policy was several and not joint, and given that, if joint and several liability for costs were ordered it might impose on an insurer a liability for costs out of proportion to its liability under the policy, it seemed to me appropriate, at least in the first instance, to order that War Risks Insurers’ liability for costs should be several. I say ‘in the first instance’ because I was persuaded that it would be sensible to include in the order a liberty to apply, such that, if one War Risk Insurer did not pay, it would be possible to revisit whether there should be an order for those costs to be paid by the other War Risks Insurers.