UK: Weekly Update: A Summary of Recent Developments in Insurance, Reinsurance and Litigation Law - 38/10

Last Updated: 19 October 2010
Article by Nigel Brook


Employers' Liability Insurance "Trigger" Litigation

Whether cover for mesothelioma claims under EL policies triggered by exposure or onset of disease

This is the appeal from the decision of Burton J reported in Weekly Update 46/08. The underlying issue is whether the correct employers' liability policy to respond to mesothelioma claims is the one in place when the asbestos dust was first inhaled or the one in place when the onset of the disease took place (in many cases, the onset of disease takes place up to 35 years after inhalation). The particular policy wordings in question differ slightly but, broadly, they provided cover for "injury sustained" or "disease contracted" during the policy period.

At first instance, Burton J found that there was no injury at the date of inhalation. However, taking into account the factual matrix of the case, he concluded that the policies had to be construed as meaning that injury was sustained when it was caused (ie at the date of inhalation). Equally, he construed that disease was contracted when it was caused. The relevant insurers' appealed and the Court of Appeal has now found as follows:

  1. Mesothelioma is not an "injury" (and injury is not "sustained") until its onset. The Court of Appeal reached this conclusion, on the basis that they were bound by the earlier Court of Appeal decision of Bolton MBC v MMI [2006] (concerning mesothelioma in relation to a public liability policy). However, although Rix LJ did not say that Bolton was wrongly decided, he did indicate that, had he not been bound by precedent, he would have preferred the view that, once mesothelioma develops, it is the risk of mesothelioma created by the exposure which is the injury. Burnton LJ, however, found Bolton convincing.

    However, both Rix LJ and Burnton LJ (Smith LJ dissenting) rejected the judge's decision that something had gone wrong with the language and that this finding would be in conflict with the commercial purpose of EL insurance. Accordingly, injury was not sustained at the date of inhalation and the appellants (with this policy wording) won on this point.
  2. However, all 3 Lords Justices agreed (Burnton LJ with hesitation) that "disease contracted" referred to the time of the disease's causal origins (ie the date of exposure) (Rix LJ opining that the commercial purpose of the policy should prevail on this issue and Burton LJ opining that little, if any, assistance was to be gained by referring to the commercial purpose of the the policy). Accordingly, the appellants (with this policy wording) lost on this point.
  3. One further argument was that the wordings only applied to employees in the course of their employment and did not apply to ex-employees. At first instance the judge held that this point favoured a construction that cover was intended to be the date of causation in all cases. Smith LJ agreed with the judge, Rix LJ agreed that the wordings did not apply to ex-employees but felt that that did not point to a causation trigger, and Burnton LJ held that (certain) wordings did apply to ex-employees.

Permission to appeal to the Supreme Court on all the above issues has been granted.

COMMENT: From a practical viewpoint, it is arguable that linking cover to the date of onset (for injury sustained wording) is unsatisfactory. Whereas the date of causation can be fixed with relative certainty, victims will often only learn that they are suffering from mesothelioma once they have started to experience symptoms. Onset will usually be "around 5 years" before manifestation but (retrospectively) determining the exact date of onset will be almost impossible in most cases. As a result of this, Burton J suggested the adoption of a prima facie rule of 5 years before manifestation, but this issue was not argued on appeal. More importantly, though, where an employer has become insolvent or is no longer in business, there will be no policy in place at the time of onset of mesothelioma. It might be expected that the Supreme Court and/or government will not favour an approach which leaves victims without any redress against an employer/insurer.

Swindon & Anor v Quinn Insurance Ltd

When did a dispute arise between an insured and insurer/whether an insurer must highlight onerous terms

General Condition 16 of a liability policy provided that any dispute between the insured and the insurer on the insurer's liability in respect of a claim must be referred to arbitration within 9 months of the dispute arising (failing which, the claim shall be deemed to have been abandoned). The insurer denied liability on the grounds that the insured had breached certain policy conditions. The insured was subsequently found liable to a third party (and shortly afterwards went into voluntary liquidation, resulting in a claim against the insurer under the Third Parties (Rights against Insurers) Act 1930.

The main issue in the case was when the dispute between the insured and the insurer arose (and hence whether the 9 month deadline to commence arbitration had expired yet). The claimants argued that a dispute could not have arisen until the insured's liability to the third party had been established. Edwards-Stuart J held as follows:

  1. Reference to a "claim" in General Condition 16 was to a claim by the insured under the policy (and not a claim by a third party). Post Office v Norwich Union [1967] establishes that until the liability of the insured has been established, and the amount of that liability has been ascertained, an insured cannot sue its insurer for a particular sum of money. However, that does not always prevent an insured from seeking a declaration that the insurer is in breach of contract before liability has been ascertained. That is because the insurer will often be in breach of a policy obligation - for example, the policy might require the insurer to consider whether or not to conduct the defence of a third party claim. In this case, as soon as the insurer notified the insured that it was refusing indemnity, a dispute had arisen and that dispute should have been referred to arbitration within 9 months.
  2. General Condition 16 had been incorporated as a term of the policy. "Cases on the incorporation of terms....must be approached with some care in the context of an insurance policy". It is well-known that commercial insurance policies contain many detailed requirements: "Whether or not he has read them, any reasonable businessman can be expected to know that his policy will contain many such detailed provisions". Nor was General Condition 16 unduly onerous. Although it is clearly much shorter than the statutory 6 year limitation period, "9 months is a reasonably generous time within which to explore the merits of any dispute that has arisen". Nor was the judge persuaded that an insurer should draw an insured's attention to every term in a commercial insurance policy which might prove onerous (apart from the duty to notify a claim within a particular period). To impose such a duty "could lead to endless disputes about whether such notification had been adequate. It would simply provide kindling for claims".
  3. The judge doubted whether he had jurisdiction to extend time to begin arbitral proceedings under section 12 of the Arbitration Act 1996, since it appeared that the policy was governed by Irish law and that the seat of any potential arbitration under General Condition 16 would be Ireland. He nevertheless expressed his view that (had he had jurisdiction) he would not have extended time. In the absence of unusual circumstances, the conduct of the party resisting the application under section 12 must have been such as to have in some way caused or contributed to the failure of the applicant to comply with the time bar. In this case, there was no obligation on the insurer to advise that time was about to expire.
  4. Paragraph 7.3.5 of ICOB (now ICOBS paragraph 8.1.1) referred to guidance to help an insured make a claim under the policy. The judge said that he did not believe this paragraph applied where an insurer has rejected the claim (rightly or wrongly). Even if that was wrong, the paragraph did not require the insurer to alert the insured to the existence of a time bar (such as the one in General Condition 16): "That time bar applies to the time for referring any dispute to arbitration once a dispute has arisen in relation to the insurer's liability in respect of a claim: it is not a period within which the insured must make his claim".

COMMENT: In Post Office, the insurers had not sought to deny liability. Instead, they argued that the claim for indemnity under the policy was premature. However, this case confirms that where an insurer repudiates liability, the insured can bring a claim for a declaration against its insurer even before it has been ordered to pay anything to a third party (and thus seek to obtain (if the policy allows it) indemnity for any defence costs incurred in defending the third party claim). Hence the limitation period in such circumstances begins to run from the date when the insured has been notified that the insurer will not pay the claim.

Joseph Fielding v Aviva

Fraudulent claims, non-disclosure, moral hazard and the Rehabilitation of Offenders Act 1974

An insurer denied liability to indemnify the insured following a fire at its commercial premises on the basis that the insured had (1) made an earlier fraudulent claim (during the currency of the policy); (2) failed to disclose at inception that it had made a fraudulent claim to a prior insurer; and (3) failed to disclose at inception that it had made misrepresentations to other insurers in the past. Much of the case therefore turns on the particular facts and the insurer was able to prove its allegations. Here are the main points of the case:

  1. The policy contained a condition which gave the insurer the option of avoiding the policy from either inception or the date of the claim (or of avoiding the claim alone) in the event of a fraudulent or intentionally exaggerated claim. The judge, Waksman QC, rejected an argument by the insured that the condition did not apply where the insured could have made a lesser claim in a non-fraudulent manner. Even if the condition did not apply, and the insured had to rely on fraud at common law instead, it was sufficient that the fraud here was substantial and the size of the genuine claim was irrelevant. The judge also rejected that a proportionality requirement should be introduced (and any observations to the contrary by Staughton LJ in Orakpo v Barclays [1995] were a minority (and obiter) view).

    The policy condition also meant that the insurer did not need to prove reliance and that it could also avoid the policy and recoup monies paid out on a first (honest) fire claim (even though the insurer conceded that this would not have been the position at common law. It is worth noting, though, that the judge highlighted that Mance LJ's observations in Axa v Gottlieb [2005] that a fraudulent claim should not have any retrospective effect on earlier honest claims were only obiter).
  2. As for the non-disclosure argument, Waksman QC said that materiality must be considered "in the round" and that "it is the full picture which has to be assessed". He rejected an argument that if an initial false statement would have been immaterial to a prior insurer, then it should be removed from the picture altogether. Furthermore, if there was a moral hazard in insuring this insured, that was "unlikely to be something which can be cured by the imposition of a further condition on the policy".
  3. The insured also argued that the insurer could not rely on false statements about a previous conviction in light of the Rehabilitation of Offenders Act 1974. That Act provides that questions seeking information about a person's previous convictions shall be treated as not applying to spent convictions (section 4(2)) and "any obligation imposed on any person by any rule of law or by the provisions of any disclose any matters .....shall not extend to requiring him to disclose a spent conviction" (section 4(3)).

The judge held that section 4(2) did not apply because no express question about previous convictions had been asked (notwithstanding that the insured was under a general duty to disclose). As for section 4(3), the judge agreed that the obligation on the insured to make disclosure to the insurer of all material facts was a duty imposed by a rule of law or agreement. However, the judge said that the section should not be "so broadly interpreted" and the restriction on the duty of disclosure which it imposes "applies where its direct object is the spent conviction". So the insured was under no duty to disclose the fact of a previous (spent) conviction (even if it was otherwise material).

However, in this case, the insurer's argument about non-disclosure related to the false statement to a prior insurer that the insured's director had no convictions at a time when that conviction was not spent. What section 4(3) could not outlaw "is the duty to disclose the making of false statements if material to the present insurance. A string of lies to previous insurers, for example, should be disclosed". Even if the insured was under no duty to disclose what the false statement was about to the current insurer (because the conviction was spent), it was likely that that insurer would have refused to write the risk. Accordingly, the insurer was under no liability to pay the insured.

BBGP Managing General Partner & Ors v Babcock & Brown Global Partners

Meaning of a "client" for legal advice privilege/loss of confidentiality/joint retainers/the iniquity principle

B&B Group established "Global", a limited partnership, which was managed by a general managing partner, "General" (a company owned by B&B Group). Disputes arose between B&B Group and Global, resulting in the removal of General as the manager of Global. General was required to transfer Global's documents (stored in digital form on the B&B Group database) to the new manager. Some of these documents contained legal advice from a firm of solicitors and General therefore sought guidance from the court as to whether those documents were privileged. The facts of the case are complicated (due to the nature of various disputes which arose) but the main points can be summarised as follows:

  1. Who was the solicitors' client? In the case of Three Rivers (No.5)[2003], the Court of Appeal ruled, broadly, that not all officers and employees within a company should be treated as the "client" for the purposes of legal advice privilege. Only those employees within the organisation who are dealing with the matter on which the lawyer is giving advice will be the "client". In this case, legal advice was passed to General (although it was copied in to some of the partners of Global too) and it was therefore argued that Global was not the client of the solicitors. Norris J rejected that argument. The solicitors' client was Global (ie each of the partners in the firm), acting by its agent General: "General was undoubtedly the party with whom the contract of retainer was entered because it alone had authority within Global to enter into relations with third parties. But that does not mean that it alone was the client. It entered into the contract as agent for and on behalf of Global, not in its own right in its own interest". Furthermore, the authorities also establish that privilege cannot be asserted as between partners in relation to any documents concerning the partnership's affairs: Re Pickering [1883].
  2. Mr Hanson was an employee of B&B Group who was seconded to General and was its effective executive director. He communicated with the solicitors through his B&B Group email accounts and B&B Group was expressly entitled under Mr Hanson's employment contract to examine those communications. Accordingly, it was argued that the communications had lost their confidentiality and hence were no longer privileged. Norris J rejected that argument too. The starting point was the nature of the matter communicated and not the manner of the communication. There was nothing to indicate, on the facts, that the solicitors were aware that B&B Group had the right to examine emails sent by Mr Hanson. Just because Mr Hanson could not assert a right to privacy against his employer, it did not mean that General could not prevent B&B Group from using confidential information for its own purposes.
  3. It was accepted by the judge that where a solicitor accepts a joint retainer, the original joint interest is not destroyed by a subsequent disagreement between the parties. Also, one client cannot insist against the other that legal professional privilege attaches to any communications passing between the solicitor and that client during the retainer (there was no separate and exclusive retainer here between the solicitors and some only of the joint clients and there was no separate (and conflicting) agency between General and another third party).
  4. Norris J also held that "the right to confidentiality and privilege is a joint right of all the individual clients of [the solicitors]. No one partner can waive it".The one exception to this principle though was that General may disclose the material to its direct shareholder, because the shareholder is entitled to see all documents obtained by a company in the course of the administration of its affairs, including legal advice (provided that it was not obtained in response to a potential claim by the shareholder). However, the direct shareholder could not in turn share the material with its own shareholders. The judge reached that decision on policy rather than principle: "But I see no reason to extend the entrenchment upon the basic rule of privilege all the way up the chain of holding companies notwithstanding the steady dilution of that common interest".
  5. A further argument which was raised was that Global could not claim privilege over materials seen by General because of the iniquity principle - namely, that advice sought or given for the purpose of effecting iniquity is not privileged. The wrongdoer here was Mr Hanson. The judge accepted that the conduct of which he was accused (broadly, secretly preferring the interests of a third party over General's interests) was sufficient to engage the iniquity principle. Personal advantage was not a necessary element of "fraud". Furthermore, an innocent client may lose privilege even if it is a third party who has the iniquitous intention. The judge concluded that Global could not claim privilege because of the iniquity principle (at least up until the date when General discovered Mr Hanson's alleged fraud). (In reaching his conclusion, the judge also held that exceptional circumstances are required before a court will look at privileged material (which is not available to the other party) when deciding whether or not privilege should be lost because of the iniquity principle).

Prudential PLC & Anor v Special Commissioner of Income Tax & Anor

Whether legal advice privilege should be extended to non-lawyers

The claimant company was served with statutory notices requiring the production of certain documents. It sought to argue that it did not have to disclose documents by which it had sought or received legal advice on tax matters from a firm of accountants. The issue in the case was therefore whether legal advice privilege covers communications with an accountant (and not just a lawyer) when the accountant is giving legal advice. At first instance the judge ruled that it does not and the Court of Appeal has now unanimously dismissed the appeal from that decision.

The claimant had sought to argue that Three Rivers (No.6) [2004] (which established that only advice given in a legal context will qualify for legal advice privilege) demonstrates that the determining factor for the privilege is not the status of the adviser but the nature of the advice. That argument was rejected by the Court of Appeal - Three Rivers had not discussed the issue of whether a non-lawyer could qualify for the privilege too. Lloyd LJ (giving the leading judgment) held that he was bound by the Court of Appeal decision in Wilden Pump v Fusfeld [1985], which held that at common law, legal professional privilege applies only in relation to advice by lawyers (ie members of the legal professions of England and Wales and, by extension, foreign legal professions). Even if he was not so bound, he would have concluded that it was not open to the courts to extend the privilege to non-lawyers: "It is of the essence of the rule that it should be clear and certain in its application, since it is not the subject of any ad hoc balancing exercise but is, to all extents and purposes, absolute".

Serious questions as to the scope of the rule would arise if it was applied to accountants (who are not governed by one particular professional body). There is no restriction on a person setting himself up as an accountant and giving out advice. Nor could the claimant derive any assistance from the clear acceptance that the exercise of the right of privileged communication with a lawyer is protected by Article 8 of the ECHR. The Court of Appeal concluded that it is a matter for Parliament (and not the courts) whether the privilege is to be extended further.

Broda Agro Trade v Alfred C Toepfer International

The meaning of taking part in arbitral proceedings under section 72 of the Arbitration Act 1996

Section 72 of the Arbitration Act provides that a person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question (inter alia) whether there is a valid arbitration agreement by court proceedings. In this case, the claimant had (arguably) taken no part in the proceedings in which the tribunal decided whether it had substantive jurisdiction. It was only after the tribunal decided that it had jurisdiction that the claimant took part in the proceedings on the merits of the case. The claimant sought to argue that it had not "taken part" for the purpose of section 72 because that section refers only to proceedings concerning jurisdiction (and not proceedings on the merits of the case). In Weekly Update 48/09 we reported the first instance decision in this case, whereby the judge rejected the claimant's argument.

The Court of Appeal has now dismissed the appeal from that decision. A person who considers that he has not entered into an arbitration agreement can ignore the proceedings and claim relief from the court. If he does take part, he must apply under section 67 to challenge an award on jurisdiction. Section 72 is only concerned with jurisdictional issues because it is only in relation to such issues that the court has unqualified jurisdiction (a decision by a tribunal that it has jurisdiction is not binding on a court. In contrast, once a tribunal rules on the merits of the case, in the absence of serious irregularity, the parties are bound by the tribunal's findings of fact and have only a limited right to appeal points of law).

Nor did Article 6 of the ECHR (which entitles everyone to a fair and public hearing) help the claimant. It had the right to challenge jurisdiction under section 67.

Accordingly, the Court of Appeal was not required to decide whether the claimant had in fact taken part in the proceedings on substantive jurisdiction. It did, however, note that: "It may be difficult to distinguish between a letter that does no more than inform the arbitral tribunal, as a matter of courtesy, that the respondent does not accept its jurisdiction, and a submission that it has no jurisdiction."

The Court of Appeal also held that the judge had not erred in refusing to extend the 28- day deadline under section 67. Considerable delay had been caused by the claimant's failure to seek advice from an English lawyer.

Oceanconnect v Angara Maritime

Whether court should have granted anti-suit injunction in maritime case/construction of jurisdiction clause

A dispute arose between the parties and the appellants arrested a vessel owned by the respondent. An escrow agreement was then entered into between the parties and the vessel was released. The escrow agreement provided for terms of security and that it would be governed by, and construed in accordance with, English law "and any dispute arising hereunder or relating hereto or arising in connection herewith shall be referred to the exclusive jurisdiction of the High Court of England and Wales". Angara then commenced proceedings in England for negative declaratory relief. The appellant the obtained a warrant for the vessel's arrest in Louisiana, in order to found jurisdiction for a maritime lien claim in the US. The respondent obtained an anti-suit injunction and the appellant appealed.

The Court of Appeal allowed the appeal for the following reasons:

  1. The jurisdiction clause in the escrow agreement did not legislate for the jurisdiction in which the underlying dispute was to be heard. Although it was capable of being read in that way, it was not to be read "literally". The escrow agreement was intended to secure the release of the vessel as quickly as possible and the parties had left open where the claim itself was to be determined. Of crucial importance was the fact that the appellant had a relatively simple claim for a US maritime lien and it was impossible that they would have given up that claim by agreeing to the exclusive jurisdiction of the English courts.
  2. It was not vexatious or oppressive for appellant to pursue the US proceedings. The US maritime lien was clearly important to appellant and it was bound to fail in England, whereas it had a strong chance of success in the US. It would be against the interests of justice to doom that claim to fail.

Dhamija & Anor v Sunningdale Joineries

Duties of quantity surveyors in relation to defective works - of possible interest to professional indemnity insurers

Quantity surveyors applied to strike out a claim against them. The claim alleged that they owed the claimant homeowners an implied duty "to only value work that had been properly executed by the contractor and was not obviously defective". There was no written or oral contract between the parties - instead there was a contract evidenced by certain letters and the parties' subsequent conduct. Coulson J agreed that there was an implied term in the contract that the surveyors would act with the reasonable skill and care of ordinarily competent and experienced quantity surveyors when valuing the works properly executed for the purposes of the interim certificates. However, there was no positive obligation not to value work which was "obviously defective". A textbook passage which suggested that, where a quantity surveyor notices defective work, he should bring this to the architect's attention, was wrong. It is clear from the case of Sutcliffe v Chippendale & Edmondson [1971] that the architects must instead inform the quantity surveyors of any defects. A quantity surveyor is not liable for quality as well as quantities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nigel Brook
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