Companies, are to be legally represented before the Privy Council in London in the complicated case involving EMLICO (Electric Mutual Liability Insurance Co.). Participants this month filed written submissions and oral arguments are expected soon.

Kemper Reinsurance Co. has been asking Bermuda's courts to revisit the decision taken by Bermuda's regulators to allow EMLICO to come to Bermuda in 1995. The Privy Council is being asked to decide on a technical legal issue involving the application for judicial review.

Business journalist David Fox outlines some of the points raised in London by EMLICO and Kemper.

An American reinsurer is arguing before the Privy Council in London that Bermuda's Court of Appeal judgement in a case involving Bermuda-domiciled EMLICO reveals "little clear analysis of principle.'' Kemper Reinsurance Co. of Illinois has asked the Law Lords to allow the reinsurer's appeal against a June order of the Court of Appeal which upheld two preliminary objections by EMLICO.

The appeals court had held they had no jurisdiction to hear Kemper's appeal against a Supreme Court decision that set aside an earlier court order granting Kemper leave to seek judicial review.

Kemper Re had sought judicial review of the decisions taken by Bermuda insurance regulators that allowed EMLICO into Bermuda as an exempted insurer.

But the leave they obtained from Justice Ground in the Bermuda Supreme Court was later set aside by Mrs. Justice Wade-Miller.

And then this June, the Court of Appeals refused to interfere with Justice Wade-Miller's decision.

EMLICO opposes Kemper Re's bid to get judicial review. And Kemper has argued that EMLICO's position is backed by legal precedents concerning cases were leave was refused.

By distinction, they are arguing before the Law Lords, the case in question deals with leave that was granted, and subsequently set aside.

In briefs to the Privy Council, Kemper's lawyers said, "There are substantive and procedural differences between a refusal of leave to begin judicial review proceedings and a set aside of leave previously given.'' They said that the Court of Appeal had made a mistake in its decision by holding that there was no difference between the two.

And that court, they said, should have held that they did have jurisdiction under the Court of Appeal Act 1964 to entertain Kemper Re's appeal against Justice Wade-Miller's order.

Kemper's lawyers further claim that the Court of Appeal erred in holding that it was immaterial that the leave required by Kemper Re was leave to move for judicial review and not leave to appeal.

The lawyers further believe that Court of Appeal erred in applying an irrelevant rule.

Lawyers: Neill of Bladen QC, John Higham QC and Martin Pascoe.

COURT OF APPEAL COA