CL-2023-000064 - [2025] EWHC 1870 (Comm)

The Cs say that the arbitration agreement only applies to a “difference … as to the amount to be paid” under the Policy “liability being otherwise admitted”. The parties agreed to arbitrate where the dispute is only one of quantum, i.e. if cover is admitted and no issue has been taken as to limits or exclusions or other terms of the Policy. As such, “liability” means anything other than a dispute “as to the amount to be paid”.

The Cs point out that, in the present case, there has been (and continues to be) a substantial dispute as to the breadth of cover that was agreed and as to the application of limits. Liability has not “otherwise” been admitted.

The Cs observe that the U/Ws have not taken any jurisdictional objection to (indeed, have actively participated in) the judicial determination of the limits and saving clauses issues.

Insofar as the U/Ws’ argument is that, once some further issues (including issues 2 and 8) have been decided, the arbitration agreement will be engaged, the Cs’ answer is that none of the previous cases contemplate this, and the argument is not sustainable on the wording. They point out that the condition precedent for the arbitration agreement to be engaged is that all other issues are “admitted” (not “denied but ultimately determined against the Insurer”). The U/Ws did not (and do not) admit the Cs’ case. In those circumstances the condition precedent to the arbitration agreement has not been (and will never be) satisfied.

In any event, the Cs’ argue that the Court’s jurisdiction is to be determined as at the date of issue of proceedings. That stage has long passed and there is no scope now for the arbitration agreement to play a role.