Before the Equitas premium
judgments were entered against the Names in England, they received notice,
retained counsel and defended Lloyd's claims in multiple hearings. During
the 25 days of hearings, the English courts exhaustively considered the
Names' defenses and objections to implementation of R&R and enforcement
of the Equitas contract, including the "pay- now, sue later" and "conclusive
evidence" clauses. As a matter of substantive English common law and statutory
law, the English courts rejected the Names' objections. Accordingly, R&R
was upheld, the Equitas contract was found enforceable and the Names were
held liable for their Equitas premiums.
The fact that the Names could
not assert their alleged fraud claim as a set-off to payment of the Equitas
premium did not deprive them of due process. The validity of that clause
was fully litigated and it is undisputed that the Names were free to pursue
their fraud claims. In effect, the English courts merely severed or bifurcated
the Equitas premium issues from any fraud claim for damages.
The English courts' rulings
on the "conclusive evidence" clause also did not deprive them of due process.
The validity of that clause also was fully litigated and the Names were
provided the data supporting the premium calculations and had an opportunity
to challenge the amounts of the premiums. Accordingly, their claim that
the English courts do not "provide procedures compatible with due process"
is baseless and simply an attempt to relitigate issues already addressed
and carefully decided by the English courts. This Court should not act
as a second tier English court of appeals.
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