[2025] EWHC 1430 (Comm)

AerCap’s claim is brought in respect of 116 aircraft and 15 standalone engines. It is brought under the AerCap Policy, which is an aircraft hull spares and equipment all risks and war risks policy. The AerCap Policy was issued in November 2021 and was in respect of losses sustained during the period 1 November 2021 to 31 October 2022. At Annexe 1, Part 1 to this judgment appear terms of that policy which have been relied upon in argument. Section One of the AerCap Policy provided Aircraft Hull and Spares and Equipment Coverage, i.e. All Risks cover. It may be referred to as the ‘AerCap AR Cover’. Section Three provided Aviation War and Allied Perils Coverage, and may be referred to as the ‘AerCap WR Cover’. I also note here that I refer to all risks policies generally as ‘AR Cover’ and to war risks policies generally as ‘WR Cover’.

The policy provided, amongst other things, for ‘contingent’ and ‘possessed’ cover in relation to aircraft and engines that AerCap had leased to an airline.

The Contingent Cover in Section One (All Risks) was in these terms:

1.

Contingent Aircraft Hull and Spares and Equipment Coverage

This Section One covers

(a)

Aircraft, as per the Schedule of Aircraft, and

(b)

Spares and Equipment,

the subject of a Lease Agreement, that are not in the care, custody or control of the Insured or their agents and in respect of which physical damage coverage is required to be provided under the Principal Insurance, against all risks of physical loss or damage howsoever occasioned (including whilst in transit by any means and, in respect of aircraft engines, whilst undergoing test running) except as hereinafter excluded, sustained during the Period of Insurance,

In the event:

(1)

(i) that the Insured is not indemnified in whole or in part under the Principal Insurance, or

(ii)

that the Principal Insurance fails to respond to any claim within 90 days after the Insured has made a written claim, or

(2)

of the lack or insufficiency of required insurance due to error or accidental omission.

The coverage afforded under paragraph 1.(a) also applies to aircraft engines and components as per the Schedule of Aircraft Engines and Components, the subject of a Lease Agreement whilst attached to an aircraft that is not the subject of a Lease Agreement.

‘Principal Insurance’ is defined to mean ‘the insurance or reinsurances required to be effected by the Operator pursuant to the provisions of the Lease Agreement (inclusive of insurances such as hull deductible insurances as may be necessary to meet the lease requirements)’.

AerCap’s AR Possessed Cover was as follows:

2.

Possessed Aircraft Hull and Spares and Equipment Coverage

This Section One also covers

(a)

Aircraft, as per the Schedule of Aircraft, and

(b)

Spares and Equipment,

whilst

(1)

awaiting the commencement of a Lease Agreement, or

(2)

having been returned on the expiry or termination of a Lease Agreement or where coverage for the Insured has ceased under the Principal Insurance, or

(3)

having been repossessed or which are in the course of repossession from a Lease Agreement, or

(4)

in the care, custody or control of the Insured or their agents, including for the purposes of parting out or sale against all risks of physical loss or damage howsoever occasioned (including whilst in transit by any means and, in respect of aircraft engines, whilst undergoing test running) except as hereinafter excluded, sustained during the Period of Insurance.

Section One provided for an exclusion of ‘claims excluded by the WAR, HI-JACKING AND OTHER PERILS EXCLUSION CLAUSE (Aviation) AVN 48B (amended)…’.

Section Three (War Risks and Allied Perils), provided, in material part, as follows:

Subject to the terms, conditions and limitations set out below, this Section Three covers loss of or damage to

(a)

Contingent Aircraft Hull and Spares and Equipment Coverage

(i)

Aircraft, as per the Schedule of Aircraft, and

(ii)

Spares and Equipment,

as covered under Coverage 1 - Contingent Coverage - of Section One of this Insurance

(1)

in the event that the Insured is not indemnified in whole or in part under the Principal Insurance; or

(2)

in the event of the lack or insufficiency of required insurance due to error or accidental omission; or

(3)

in the event of the exhaustion of the aggregate limit under the Principal Insurance,

(the coverage afforded under paragraph 1(a)(i) also applies to aircraft engines and components as per the Schedule of Aircraft Engines and Components, the subject of a Lease Agreement whilst attached to an aircraft that is not the subject of a Lease Agreement),

(b)

Possessed Aircraft Hull and Spares and Equipment Coverage

(i)

Aircraft, as per the Schedule of Aircraft, and

(ii)

Spares and Equipment,

as covered under Coverage 2 - Possessed Coverage - of Section One of this Insurance,

(c)

Technical Records Coverage

Technical Records of Aircraft, aircraft engines and components as covered under Coverage 3 - Technical Records Coverage - of Section One of this Insurance,

(d)

Repossession Expenses Coverage

Expenses incurred in connection with the repossession or attempted repossession of Aircraft, aircraft engines or components in exercise of rights vested in the Insured under the terms of a Lease Agreement as covered under Coverage 4 - Repossession Expenses Coverage - of Section One of this Insurance

against claims excluded from Section One of this Insurance as caused by

(1)

War, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, martial law, military or usurped power or attempts at usurpation of power.

(2)

Strikes, riots, civil commotions or labour disturbances.

(3)

Any act of one or more persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional.

(4)

Any malicious act or act of sabotage.

(5)

Confiscation, nationalisation, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any government (whether civil, military or de facto) or public or local authority.

(6)

Hi-jacking or any unlawful seizure or wrongful exercise of control of the Aircraft or crew in flight (including any attempt at such seizure or control) made by any person or persons on board the Aircraft acting without the consent of the Insured or the Operator. For the purpose of this paragraph (6) only, an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation or when the aircraft is in motion. A rotor-wing aircraft shall be deemed to be in flight when the rotors are in motion as a result of engine power, the momentum generated therefrom, or autorotation.

Furthermore this Insurance covers claims excluded from Section One of this Insurance from occurrences whilst the Aircraft and/or Spares and Equipment are outside the control of the Insured or the Operator by reason of any of the above perils. An Aircraft shall be deemed to have been restored to the control of the Insured or the Operator on the safe return of the Aircraft to the Insured or the Operator at an airfield not excluded by the geographical limits of this Insurance, and entirely suitable for the operation of the Aircraft (such safe return shall require that the Aircraft be parked with engines shut down and under no duress). Spares and Equipment shall be deemed to have been restored to the control of the Insured or the Operator on the safe return of the Spares and Equipment to the Insured or the Operator at a location not excluded by the geographical limits of this Insurance.

However, as regards Spares and Equipment the coverage provided in respect of the perils specified in paragraph (a) of AVN48B shall only apply whilst the Spares and Equipment are in transit by air or by sea as defined in the attached Institute War Duration Transit Clause 576WIL01025 (amended).

AerCap contends that it lost the 116 aircraft and 15 standalone engines set out in Schedule 1 (Part A) (the ‘AerCap Aircraft’). That schedule details the Agreed Value for each aircraft and engine, and identifies the lessee to whom the aircraft or engine was leased.

AerCap’s primary claim is under its Contingent Cover, but it makes an alternative claim under its Possessed Cover. Equally, its primary case is that its aircraft and engines were lost by an All Risks Peril (‘AR Peril’), that is to say a fortuity cover for which is not excluded from Section One by the War, Hi-Jacking and Other Perils Exclusion Clause and, therefore, that it is covered under Section One; but alternatively it says that the aircraft and engines were lost by reason of a War Risks Peril (‘WR Peril’) and that it is covered under Section Three. It is potentially advantageous to AerCap that cover should be under Section One, given the aggregate limit of US$1.2 billion on insurers’ liability under Section Three.

DAE’s claim is in respect of 22 aircraft (19 of which were lost in Russia and three of which were recovered), one engine and one piece of equipment. It is brought under DAE’s WR Policy alternatively under the DAE AR Policy. The policy period of those policies is 1 December 2021 to 30 November 2022. At Annexe 1, Part 2 to this judgment appear the terms of those policies that have been referred to in argument. The following are the most significant terms, which it is helpful to set out in order to outline the issues in dispute.

The Risk Details to the DAE AR Policy provided that the ‘Interest’ was:

To Cover;

HULLS AND SPARES

a)

Aircraft Hulls against all risks of physical loss or damage whilst in the Insured’s care, custody or control or for which the Insured is responsible (including whilst in the course of repossession) whilst on the ground, taxying or in flight.

…

Contingent Aircraft Hulls and Contingent Spares against all risks of physical loss or damage in respect of aircraft and/or Spares leased to others by the Insured as per schedule held on file by the Insured. To pay as a result of the inability of the Insured to recover from insurance (including deductible insurance) required by the Insured to be effected by the lessee or operator including where such inability is due to cancellation or non-renewal of the insurance required to be effected by the Lessee or operator.

…

In the DAE AR Policy, Section One provided in part:

1.

AIRCRAFT HULL ALL RISKS

COVER

To pay for the physical loss of or damage howsoever sustained (save as excluded) occurring during the Period of Insurance to Aircraft in the care, custody or control of the Insured or for which they are responsible (including whilst in the course of repossession).

…

1.3

LOSS OF AIRCRAFT: AGREED VALUE

In the event of the total loss, constructive total loss or arranged total loss of an Aircraft the Insurers shall pay the Agreed Value of the Aircraft.

The Insured may declare a loss as a constructive total loss and the Insurers shall pay the Agreed Value of the Aircraft in the event that the cost of repair is estimated at 75% (seventy five per cent) or more of the Agreed Value of the Aircraft concerned.

Nothing herein contained shall be deemed to prevent the declaration of an arranged total loss by agreement between the Insurers and the Insured in the event that the cost of repair be estimated at less than 75% (seventy five per cent) of the Agreed Value.

Section Five of the DAE AR Policy provided in part:

5.

CONTINGENT HULL AND SPARES ALL RISKS

5.1.

COVER

To pay for the physical loss of or damage howsoever sustained (save as excluded) occurring during the Period of Insurance to Aircraft and/or Spares leased to others by the Insured (as held on file by the Insured).

Notwithstanding Exclusions 6.2.1. and 6.2.3. of this Insurance cover is provided by this Section 5.1. to engines in which the Insured has a financial interest whilst attached to an aircraft in which the Insured does not have a financial interest.

5.2.

CONDITIONS APPLICABLE TO THIS SECTION ONLY

5.2.1.

The Insurers will pay under this Section as a result of the Insured not being paid in whole or part under the Principal Policy including where due to cancellation or non-renewal of the Principal Policy.

5.2.2.

This Section Five provides cover until the Insured repossesses the Aircraft or Spares or until its interest in the Aircraft or Spares ceases, or until expiry of the Period of Insurance, whichever first occurs. Coverage under this Section for any Aircraft and/or Spares shall also cease when such Aircraft and/or Spares attach for coverage under Section One/Two (as applicable) hereof.

5.3.

EXCLUSIONS APPLICABLE TO THIS SECTION ONLY

The Insurers will not pay for loss or damage which is:-

5.3.1.

recoverable as a claim under the Principal Policy; or

5.3.2.

not recoverable (in whole or in part) under the Principal Policy by reason of the insolvency of an insurer or insurers unless the lessee was insured by such an insurer in order to comply with applicable law.

5.4.

LOSS OF AIRCRAFT: AGREED VALUE

In the event of the total loss, constructive total loss or arranged total loss of an Aircraft the Insurers will pay the Agreed Value of the Aircraft.

The Insured may declare a loss as a constructive total loss and the Insurers shall pay the Agreed Value of the Aircraft in the event that the cost of repair is estimated at 75% (seventy five per cent) or more of the Agreed Value of the Aircraft concerned.

Section 10 of the DAE AR Policy (Exclusions) provided in part:

10.2.

WAR, HI-JACKING AND OTHER PERILS EXCLUSION CLAUSE (AVIATION) AVN 48B

10.2.1

This Insurance does not cover claims caused by

10.2.1.1 War, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, martial law, military or usurped power or attempts at usurpation of power.

10.2.1.2 Any hostile detonation of any weapon of war employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter.

10.2.1.3 Strikes, riots, civil commotions or labour disturbances.

10.2.1.4 Any act of one or more persons, whether or not agents of a sovereign Power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional.

10.2.1.5 Any malicious act or act of sabotage.

10.2.1.6 Confiscation, nationalisation, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any Government (whether civil, military or de facto) or public or local authority.

10.2.1.7 Hi-jacking or any unlawful seizure or wrongful exercise of control of the aircraft in Flight (including any attempt at such seizure or control) made by any person or persons on board the aircraft acting without the consent of the Insured.

…

The DAE WR Policy provided in its Risk Details that the ‘Interest’ was:

To Cover;

HULLS AND SPARES

1.

Aircraft Hulls and Spares War Risks against loss or damage whilst in the Insured’s care, custody or control or for which the Insured is responsible whilst on the ground, taxying or in flight.

2.

Contingent Aircraft Hulls and Contingent Spares War Risks against loss or damage in respect of aircraft and/or Spares leased to others by the Insured as per schedule held on file by the Insured. To pay as a result of the inability of the Insured to recover from insurance (including deductible insurance) required by the Insured to be effected by the lessee or operator including where such inability is due to cancellation or non-renewal of the insurance required to be effected by the Lessee or operator and exhaustion of any aggregate limit.

…

In the Risk Details, under ‘Conditions’ appeared the following:

In respect of War Risks and Contingent War Risks this Policy subject to (a) 7 days notice by Insurers to review rates and/or Geographical Limits subject any cancellation shall only apply to the aircraft the subject of the notice (b) 7 days notice to cancel at quarter dates by either side …

In the DAE WR Policy Risk Details, Section One provided:

SECTION ONE: LOSS OF OR DAMAGE TO AIRCRAFT AND/OR SPARES

Subject to the terms, conditions and limitations set out below, this Policy covers loss of or damage to aircraft and/or spares as defined in the Schedule and held on file by Aon Belgium BV (UK Branch) against claims excluded from the Insured's Hull and Spares “All Risks”, Contingent Hull and Spares “All Risks” and Total Loss Only Insurance (hereinafter referred to as the Insured's Hull and Spares “All Risks” Policy) as caused by:

(a)

War, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, martial law, military or usurped power or attempts at usurpation of power.

(b)

Strikes, riots, civil commotions or labour disturbances.

(c)

Any act of one or more persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional.

(d)

Any malicious act or act of sabotage.

(e)

Confiscation, nationalisation, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any government (whether civil, military or de facto) or public or local authority.

(f)

Hi-jacking or any unlawful seizure or wrongful exercise of control of the Aircraft or crew in flight (including any attempt at such seizure or control) made by any person or persons on board the Aircraft acting without the consent of the Insured. For the purpose of this paragraph (f) only, an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation or when the aircraft is in motion. A rotor-wing aircraft shall be deemed to be in flight when the rotors are in motion as a result of engine power, the momentum generated therefrom, or autorotation.

Section Four contained conditions applicable in respect of the Contingent Cover, and provided in part:

1.

The Insurers will only pay as a result of the inability of the Insured to recover from the Principal Policy including where such inability is due to cancellation or non-renewal of the Principal Policy. This paragraph does not apply to the coverage provided under paragraph 1. of Extensions of Coverage.

3.

Coverage will apply until the Insured repossesses the aircraft or spares or until their interest ceases, or until expiry of this Insurance, whichever first occurs. Coverage provided shall cease once the aircraft and/or spares have been deleted from the Principal Policy, provided that such deletion is with the knowledge and consent of the Insured.’

As is obvious from the above, the DAE Policies differed in various respects from the AerCap Policy. One particular difference is that the AerCap Policy, unlike the DAE WR Policy, contained no provision whereby the underwriters to the WR Policy were empowered to review rates and/or geographical limits on notice. There seems no doubt that this, and some other differences in the terms as between AerCap and other insureds, was due to AerCap’s superior bargaining power.

The aircraft in respect of which DAE brings its claim are set out in Schedule 1 (Part B) to this judgment (the ‘DAE Aircraft’). DAE says that it makes no financial difference as to whether, assuming that there is cover under one or the other, the loss of its aircraft was caused by an AR or a WR Peril. DAE’s primary case is, nevertheless, that it lost those aircraft as a result of the incidence of a WR Peril; and alternatively that they were lost as a result of an AR Peril. Furthermore, DAE’s primary case is that it has cover under the ‘Possessed’ section of either policy (i.e. that in respect of loss or damage occurring to ‘Aircraft in the care, custody or control of the Insured or for which they are responsible (including whilst in the course of repossession)’). Alternatively, DAE contends that it has cover under the ‘Contingent’ section of either policy.

Falcon’s claim is brought in respect of two aircraft, which are identified in Schedule 1 (Part C) to this judgment (the ‘Falcon Aircraft’). It is brought under policies which were in materially identical terms to those of DAE summarised above. Falcon adopts the same primary and alternative positions in relation to war as opposed to all risks, and Possessed as opposed to Contingent Cover as does DAE. Throughout this judgment, where I refer to DAE I may also be taken to refer to Falcon, except where I say otherwise or context otherwise dictates.

Merx claims in respect of six aircraft, which are identified in Schedule 1 (Part D) to this judgment (the ‘Merx Aircraft’).

Merx’s claim is brought under the Merx Policy, which is an Aviation Hull, Spares/Equipment, Liability and War and Allied Perils (including Contingent) Insurance. The Policy Period of the Merx Policy was 1 August 2021 to 1 August 2022. The terms of the Merx Policy on which the parties relied in argument can be found in Annexe 1, Part 3 to this judgment.

In the Risk Details of the Merx Policy, the ‘Interest’ was specified, in part, as follows:

Section One – Hulls

1.1(a) Contingent Hull – All risks of physical loss or damage to aircraft in which the Insured has a financial interest as per Schedule which are not in the care, custody or control of the Insured or their agents – INSURED

1.1(b) Possessed Hull – All risks of physical loss or damage to aircraft in which the Insured has a financial interest as per Schedule being aircraft that are (i) awaiting commencement of a Lease Agreement, or (ii) returned on expiry/termination of a Lease Agreement, or (iii) repossessed (or in course of repossession) from a Lease Agreement or (iv) which are in the care, custody or control of the Insured or their agents – INSURED

In the Risk Details – Wording, Section One provided in part:

Exclusion 5.1 to the Merx Policy was a War, Hi-Jacking and Other Perils Exclusion Clause (AVN48B amended). There was then an Aviation Hull, Spares and/or Equipment War and Other Perils Endorsement. This provided as follows:

Section Five of the War Risks Endorsement provided in part:

Amendment of Terms or Cancellation: 1. (a) Insurers may give notice, effective on the expiry of 7 days from midnight G.M.T. on the day on which notice is issued, to review the rate of premium and/or the geographical limits. In the event of the review of the rate of premium and/or geographical limits not being accepted by the Insured then at the expiry of the said 7 days, this Endorsement shall become cancelled at that date, it being understood and agreed that such cancellation shall only apply to the Aircraft the subject of the notice.

Merx’s primary case is that it is entitled to recover under the Possessed Cover of the Merx Policy, alternatively under the Contingent Cover. Its primary case is that its aircraft were lost as a result of a WR, alternatively an AR Peril, although it says that it is ‘close to neutral’ as between the two.

Genesis claims in respect of one aircraft, which is identified in Schedule 1 (Part E) to this judgment (the ‘Genesis Aircraft’). Its claim is brought under its Contingent and Possessed AR Policy or its Contingent and Possessed WR Policy. It has ‘no hardened position’ as to whether the loss of the aircraft, which it alleges, was caused by an AR or a WR Peril, and so its stance is that the loss is recoverable either under the Genesis AR or the Genesis WR Policy. The policy period of each was 15 March 2021 to 15 March 2022. The terms of the Genesis AR and WR Policies on which the parties relied in argument may be found in Annexe 1, Part 4 to this judgment.

In the Genesis AR Policy, Part One provided:

1.1

CONTINGENT AIRCRAFT HULL

Insurers agree to cover Aircraft not in the care, custody or control of the Insured or their agents in which the Insured has a Financial Interest (as set forth in the Policy Schedule or added during the Policy Period) against all risks of physical loss or damage howsoever occasioned, sustained during the Policy Period, except as hereinafter excluded.

The coverage afforded by this insuring agreement 1.1 also applies to Engines in which the Insured has a Financial Interest whilst attached to an aircraft in which the Insured does not have a Financial Interest.

…

1.3

POSSESSED AIRCRAFT HULL

Insurers agree to cover Aircraft in which the Insured has a Financial Interest (as set forth in the Policy Schedule or added during the Policy Period), being Aircraft that are

a)

awaiting commencement of a Lease Agreement

b)

returned on expiry/termination of a Lease Agreement

c)

repossessed (or in the course of repossession) from a Lease Agreement

against all risks of physical loss or damage sustained during the Policy Period, except as hereinafter excluded.

In the event of a Lease Agreement being terminated, individual Aircraft are automatically covered from the time the Insured becomes responsible for such Aircraft, including non-renewal or cancellation of any coverage purchased by lessee for the benefit of an Insured hereon. All Additional Insureds and Loss Payees for each aircraft will transfer from Contingent to Possessed Coverage thereon.

As Attachment One to the Genesis AR Policy appeared the War, Hi-Jacking and Other Perils Exclusion Clause (Aviation), AVN 48B, 1.10.96. The Genesis WR Policy provided, in Section One, in part:

Specific Condition 1.7.2 to Section One of the Genesis WR Policy provided:

1.7.2

AMENDMENT OF TERMS OR CANCELLATION

1.

(a) Insurers may give notice, effective on the expiry of seven (7) days from midnight G.M.T. on the day on which notice is issued, to review the rate of premium and/or the geographical limits. In the event of the review of the rate of premium and/or geographical limits not being accepted by the Insured then at the expiry of the said seven (7) days, this Section One shall become cancelled at that date.

At trial there were two large groupings of Defendants who made consolidated submissions, the 'All Risks Insurers’ (‘AR Insurers’) and the ‘War Risks Insurers’ (‘WR Insurers’). In addition to and outside those groupings, Chubb made submissions which were substantially independent of the above groupings. There is a full list of the original (prior to any settlement) Defendants to each claim in Schedule 2 to this judgment.

The AR Insurers are principally composed of the ‘HFW AR Insurers’, a grouping of underwriters to the AerCap, KDAC and Merx AR policies represented by HFW, and the ‘Global AR Insurers’, a grouping of underwriters to the DAE/Falcon and Genesis AR policies represented by Wikborg Rein. Swiss Re was also substantially aligned with the AR Insurers, though it filed independent defences to each claim.

The WR Insurers consist of four groups. The first is the ‘Kennedys Defendants’, which are subdivided between the Kennedys Defendants to the AerCap, Merx and Genesis claims, and the Kennedys Defendants to the DAE/Falcon and KDAC claims. The second is Fidelis, the third is TMK/HDI, and the fourth is AIG Europe in their capacity as a subscriber to the DAE WR policy. AIG Europe in this capacity filed their own defence but almost entirely adopted the case of the other WR Insurers and played almost no role in the trial.

It should be noted that some insurers were Defendants to claims by lessors under both their AR and WR insurances. Of the insurers who have not settled their claims, these include:

Fidelis filed an independent defence to each claim, but pleaded that, if the aircraft had been lost, then the loss was due to an AR Peril. Its case accorded almost entirely with the Kennedys Defendants. Chubb filed an independent defence to each claim. It adopted the AR Insurers’ case that, if the aircraft had been lost, then it was due to a WR Peril. In their capacity as AR insurers, TMK and HDI joined the HFW AR Insurers or the Global AR Insurers; as WR Insurers, they filed their own defences (jointly in the case of KDAC and Genesis) and were represented together by CMS. Their case accorded almost entirely with that of the Kennedys Defendants.

Under paragraph [6] of the Seventh Composite Directions Order, dated 30 July 2024, permission was given to serve a skeleton argument of unrestricted length to the following groupings of the parties: 1) AerCap, 2) the other Claimants, 3) the AR Insurers, 4) the WR Insurers. Under paragraph [7] of the same Order, the other parties, whether individually or as a group, were given permission to file other short skeleton arguments insofar as they contained non-duplicative submissions.

The parties have, broadly, made submissions in the following pattern. AerCap and DAE have made full-scale submissions. The other Claimants have, for the most part, adopted DAE’s submissions on issues affecting all the parties, and made independent arguments on issues particular to themselves. The AR Insurers have made essentially joint submissions. Swiss Re rely on AR Insurers’ submissions as well. The WR Insurers have made joint submissions, except where they do not adopt each other’s defences on construction or on sanctions. Chubb have adopted much of the AR Insurers’ case, but have raised several individual defences.

I note one further aspect of the parties’ groupings in this case. AerCap’s case on peril, to a certain extent, was in line with that of the WR Insurers. That grouping is sometimes referred to as the ‘WR Camp’ in this judgment. On the other hand, the other Claimants’ case on peril accorded with that of the AR Insurers. I refer to this grouping as the ‘AR Camp’.

Several of the defences raised to the LP Claims required the court to consider whether the alleged losses suffered by the lessors were recoverable by virtue of claims under the OPs, which are governed by Russian law. This posed a serious problem of case management, and at a CMC in June 2024 several ways of proceeding were considered. Ultimately, by an order dated 29 July 2024, the following issues were hived off to be heard in a ‘Phase II’ trial: whether the Claimants are entitled to recover under the OPs; all related Russian insurance law issues; and the application of the Phase II Issues to the LP Policies.