UK: Weekly Update A Summary Of Recent Developments In Insurance, Reinsurance And Litigation Law - 40/10

Last Updated: 4 November 2010
Article by Nigel Brook

This Week's Caselaw

Oceanbulk Shipping v TMT Asia Ltd & Ors

Admissibility of without prejudice negotiations to interpret the terms of a settlement agreement

The defendants sought to adduce evidence of exchanges between the parties made during without prejudice negotiations and before a settlement agreement was concluded, because those exchanges were said to be relevant to the proper interpretation of the settlement agreement. At first instance (Weekly Update 28/09) the judge held that the evidence was admissible.

The Court of Appeal (by a 2:1 majority) overturned that decision (Weekly Update 7/10). The Supreme Court has now unanimously held that the evidence is admissible. The House of Lords in Chartbrook v Persimmon Homes [2009] (Weekly Update 24/09) accepted that it may be possible to admit evidence of prior communications between the parties as part of the background which may throw light on what they meant by the language they used. Accordingly, it was not in dispute that, absent the without prejudice rule, statements made in the course of negotiations may be admissible as part of the factual matrix as an aid to interpretation.

The Supreme Court accepted that the without prejudice rule is an important protection intended to encourage settlements. As Lord Clarke put it: "its boundaries should not be lightly eroded". The use of without prejudice communications to interpret a contract was not one of the previously accepted exceptions to the rule. However, it was held there was no reason why the ordinary principles governing the interpretation of a settlement agreement should be different even though the negotiations which led to it were without prejudice: "As I see it, the process of interpretation should in principle be the same, whether the negotiations were without prejudice or not. In both cases the evidence is admitted in order to enable the court to make an objective assessment of the parties' intentions" (per Lord Clarke). It was held that this stance would encourage, rather than discourage, parties to settle. Furthermore, rectification of a settlement agreement is already recognised as an exception to the without prejudice rule and "there is also no sensible basis on which a line can be drawn between the rectification case and this type of case".

Sugar Hut Group & Ors v Great Lakes Reinsurance & Ors

Insurers relying on defences of non-disclosure, breach of warranties and breach of condition precedent

Clyde & Co for defendants (Toby Rogers and Dominic How)

The defendants insured four nightclubs. A fire at one of the nightclubs caused substantial damage and the claimants sought an indemnity from insurers. Insurers denied liability on the following grounds:

  • Material non-disclosure. The proposal form asked "how long have you traded in this name", to which the response was "2007". A further question asked "have you ever traded in any other names", to which the reply was "yes". Some two months prior to completion of the proposal form 3 companies in the insured group went into administration due to financial difficulties and new companies were then formed to take over their businesses and were substituted as insureds. Insurers argued that had they known about the background to this they would have had grave concerns. It was alleged that a former shareholder of the 3 "old" companies had been siphoning money from the business.

    Burton J accepted that a prudent underwriter would have wanted to know whether there was a risk that the financial viability of the business going forward was endangered. The judge said that there was no criticism of the underwriter due to the fact that he did not have any Underwriting Guidelines.

    The insured argued that, however careful and experienced an underwriter is, if he has avoided for non-disclosure he will be "bound to say" that information not disclosed to him was material. Accordingly, the judge looked at the surrounding circumstances of the case. He found no evidence that the underwriter had been so keen to accept the risk that he would "not have batted an eyelid" had the undisclosed facts been disclosed to him. Nor did the judge find that there had been a waiver of disclosure. The insured had sought to argue that as the insured was invited to disclose "any other facts not covered by the questions in this form", given that the only information sought about trading history was covered by express questions, no other information was required. Burton J dismissed that argument:"the Claimants cannot rely on factors not being "covered by the questions" if the reality is that they were not covered by the answers".
  • Breach of warranties. The insurers argued the breach of two warranties:
    • a Frying and Cooking Equipment warranty (requiring (inter alia) that ducting be kept free from combustible materials and checked "at least once every 6 months"). Burton J rejected the argument by the insured that the duct should be checked every 6 months starting from the date of inception of the policy. Instead, (as a matter of business efficacy) the check should be every 6 months since the last check. There had therefore been a breach. The judge held that the part referring to 6-monthly inspections could be regarded as a suspensive condition. Unlike the position for ordinary warranties, where the breach of a suspensive condition is repaired, the insurer will be back on risk. However, in this case the inspection was not just late - it had not taken place by the time of the fire and hence cover was in any event suspended as at the date of the fire. There was also a breach of the combustible materials part of the warranty and Burton J rejected an argument that this should be treated as "de minimis". There was no caselaw to support the argument that the de minimis concept applied to breaches of insurance warranties. Also, this was a warranty as to a state of affairs.
    • a Burglar Alarm warranty (requiring a NACOSS Central Monitoring Station Alarm be installed and operational). Again, the judge found this to be a "true" warranty which, on the facts, had been breached. The slip contained a term that cover was subject to a satisfactory survey and the carrying out of necessary risk improvements. The judge held that these obligations survived into the policy and/or that contrary to any general presumption, the policy did not supersede the obligations in the slip. Compliance with a risk improvement notice was a suspensory condition. Since the fire took place before the work was carried out, there was no cover in place at the date of the fire.
  • Breach of a condition precedent. On an interpretation of the term in question, the judge found that this argument was not made out.

Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association

Effect of government measures against an Iranian entity on cover provided by a P&I club

The claimant, Islamic Republic of Iran Shipping Lines ("IRISL"), was a member of the defendant P&I club. The defendant covered the claimant for a wide range of risks, including bunker oil pollution (as required by the International Bunkers Convention 2001). The Financial Restrictions (Iran) Order 2009 came into effect on 12 October 2009. It prohibited transactions and business relationships between persons operating in the financial sector and two designated Iranian entities (one of which was IRISL). HM Treasury was empowered to exempt specified acts by issuing licences. It issued two licenses authorising the defendant to continue to provide P&I insurance to IRISL for specified periods. On expiry of the second licence, on 30 October 2009, HM Treasury issued a further licence but it was in different terms to the previous licences. The defendant terminated cover because it took the view that the 30 October licence meant that it was no longer permitted to provide insurance cover to IRISL. The very next day, the claimant's ship suffered a casualty, causing bunker oil pollution. Beatson J considered the following issues:

  • On a true construction of the Order and the 30 October licence, was the defendant permitted to continue to provide insurance cover to IRISL for liabilities arising from the casualty? The first two licences permitted the defendant to continue to provide insurance cover under an existing contract with a designated person (ie IRISL) for seven days. The 30 October licence permitted the defendant to continue to provide insurance cover "in accordance with the Blue Cards issued to IRISL" for 3 months. A Blue Card is the document issued by the defendant evidencing that the insurance required by the Bunker Convention is in place (although the cards are not issued "to IRISL"). It was therefore argued that the licence did not apply to cover given to IRISL. That argument was rejected by the judge. There was no indication in the 30 October licence that what was intended was a fundamental change in the nature of the cover and to whom it was given (as opposed to its scope). The licence permitted the defendant to continue to provide IRISL with insurance cover in respect of risks required to be insured by reason of the provisions of the Bunkers Convention and thus to ensure that the UK continued to comply with its obligations in respect of liabilities arising under the Bunkers Convention.
  • Was the effect of the Order and the 30 October licence to discharge the insurance by reason of frustration? It was common ground that on 30 October 2009 it became unlawful for the defendant to insure IRISL in respect of all risks apart from those required to be insured by reason of the provisions of the Bunkers Convention. Frustration occurs "whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would make it a thing radically different from that which was undertaken by the contract" (see Lord Radcliffe in Davis Contractors v Fareham UDC [1956]). Beatson J concluded that the 30 October licence did not render the defendant's obligations radically different so as to frustrate the contract of insurance. What had to be considered was the contract as a whole, and the provision of insurance to cover liabilities under the Bunkers Convention remained legal. Whilst the scope of cover was made significantly narrower by the licence, the nature of the cover did not change - it was still indemnity insurance.

Finally, had it been necessary to decide the point, the judge held that it would have been difficult to conclude that the contract could have been severed (so as to sever those parts of the insurance which had become illegal for the defendant to perform after the 30 October licence).

The defendant was obliged to pay the loss.

Greene Wood McLean LLP v Templeton Insurance

Contribution claim against ATE insurer where solicitors gave guarantee to insureds

Certain miners received compensation from the DTI, but monies were deducted from that compensation by certain trade unions. A firm of solicitors was instructed to seek the recovery of the deducted amounts. The solicitors agreed to act under Conditional Fee Agreements and obtained After the Event ("ATE") insurance from the defendant to cover the miners' claims. The solicitors, acting on advice from counsel, made an application for a Group Litigation Order ("GLO"). This was refused by the judge, who held that the application was misconceived, and made an adverse costs order against the miners. The ATE insurer then declined to pay the costs order. When the miners intimated that they would claim against the solicitors, the solicitors' E&O insurers reached a settlement of £1,160,000 with both the miners and the GLO respondents. The solicitors then brought proceedings against the ATE insurer and the ATE insurer cross-claimed. Cooke J held as follows:

  • There was no implied term that the ATE insurer agreed with the solicitors that it would meet valid claims under the ATE policy. If an insurer fails to pay, the insured (here, the miners) has rights under the policy which could be pursued. There is no need for the solicitor who arranges ATE cover to be able to sue in respect of a breach by the insurer. (Had there been an implied term, though, this would have been a collateral contract and so the solicitors could have recovered in excess of the ATE policy limit).
  • However, in this case, the solicitors had given a guarantee to the miners that there would be "no win, no fee, no risk, no cost". The judge said that "that promise can only mean that [the solicitors] promise that the insurer will pay forthwith on being required to do so". Cooke J said that he could not see that it was a necessary concomitant of that guarantee that an obligation was assumed by the ATE insurer to the solicitors to honour the ATE policy. However, the solicitors were able to rely on a principle of law that, where a person discharges the indebtedness of another because he is obliged to do so, he has a claim to be indemnified by that other person. On the facts of the case, it was expected that the ATE insurer would pay the miners and it was this which enabled the solicitors to give their guarantee: "it was clearly understood between [the solicitors] and [the ATE insurer] that if the situation arose where adverse costs or Own Disbursements became payable by the Claimant Miners, so that both [the ATE insurer] and [the solicitors] were liable under their respective contracts with the Claimant Miners, the primary liability to them lay with [the ATE insurer]".

    Equally, the solicitors were entitled to rely on section 1 of the Civil Liability (Contribution) Act 1978 which provides that "any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)". Both the ATE insurance and the solicitors' guarantee covered the same potential economic loss to the miners and so the solicitors' claim was in respect of "the same damage" for which the ATE insurer was liable (absent any defence under the policy). As mentioned above, the parties had agreed that the ATE insurer would have primary responsibility for this liability.
  • The judge held that the ATE insurer could not claim that either the solicitors (or the counsel who advised them) owed a duty to advise it about the merits of the proposed GLO application. Furthermore, Cooke J held that it was hard to see how the judge hearing the GLO application was justified in reaching the conclusions which he did. In Cooke J's opinion, the applicants had sufficiently identified group litigation issues. The stance taken by the solicitors (and counsel) in relation to the GLO had been justifiable. The fact that the application failed and the judge was critical of their approach was not determinative.

    Accordingly, the judge ordered the ATE insurer to pay the ATE policy limit plus interest to compensate the solicitors/their E&O insurers for having been kept out of money which was due to them.

Aktas v Adepta

Extending time to commence personal injury action after claim form in first action was not served in time

The Limitation Act 1980 provides for a 3 year limitation period for bringing a personal injury claim. However, under section 33, the court can exclude this time limit if it appears equitable and just to do so. In these conjoined appeals, the claimants issued claims forms at the very end of the 3 year limitation period. However, their solicitors failed to serve the claim forms in time (ie within 4 months from issue of the claim form - CPR r7.5). The issue was whether the claimants could then commence a second action by relying on section 33 of the Limitation Act 1980. At first instance, it was held that the second action should be struck out as an abuse of process.

In Horton v Sadler [2006], the House of Lords held that section 33 gives a wide and unfettered discretion in relation to a second action to disapply the 3 year limitation period, taking into account all the circumstances of the case. However, the defendants argued that a failure to serve a claim form in time in the first action is so serious a misuse of procedure as to amount to an abuse of process, such as requires the striking out of the second action as a further abuse of process, irrespective of the section 33 discretion.

The Court of Appeal held as follows:

  • A mere negligent failure to serve a claim form in time does not amount to an abuse of process. What is required is inordinate and inexcusable delay, intentional default or a wholesale disregard of the rules. Where there is real abuse though, the courts can strike out a second action for abuse without entering on the section 33 discretion (although they can also, instead, take account of the abuse of process as "part and parcel" of all the circumstances of the case under section 33).
  • In any event, Parliament has enacted that personal injury claims should be treated in a special way. Following Horton, the discretion under section 33 arises whenever a personal injury claim is commenced outside the 3 year limitation period. It does not matter if a first action has been brought and failed because the claim form was never served (or was served late).
  • It cannot be said that this position fails to impose a sanction for failing to serve the claim form in the first action in time. The failure of the first action will be accompanied by costs and (where a claim becomes time-barred and is not covered by section 33) the claim itself could be lost.

Accordingly, the appeals were allowed.

Dumrul v SCB

Security for costs and proving difficulties in enforcing judgments abroad

The defendant bank applied for security for costs under CPR r25.13(2)(a), on the basis that the claimant is resident in Turkey. Two issues were raised:

  • Was it appropriate for the court to make the order when the defendant was bringing a counterclaim which raised the same issues as the claim? In Crabtree v GPT Communications [1990], it was found that, as a general rule, the court will not order security for costs if the same issues arise on the claim and counterclaim and the costs incurred in defending that claim would also be incurred in prosecuting the counterclaim. Not every claim and counterclaim falls within Crabtree though - for example where the claim raises substantial factual inquiries or the quantum of the claim is substantially higher than the counterclaim. Here, the bank sought to avoid Crabtree on the basis that it offered to undertake "not to pursue the counterclaim while the main claim is stayed". Hamblen J said that this was not sufficient - the bank would instead need to withdraw its counterclaim entirely (or undertake to do so) in the event of the claim being dismissed for failure to put up security.
  • Does the bank face obstacles in enforcing any costs order in Turkey (so as to justify an order for security)? In Nasser v United Bank of Kuwait [2002], Mance LJ held that there was no inflexible assumption that any person not resident in a Brussels or Lugano Convention country should provide security for costs. The essential question is whether "there would be substantial obstacles to, or a substantial extra burden (such as costs or delay) in enforcing an English judgment, significantly greater than there would be as regards a party resident in England or in a Brussels or Lugano state".

Hamblen J held that the test was whether there is "likely" to be an obstacle or burden (and not just a mere possibility). Furthermore, the obstacle/burden needs to relate to enforcement and not to execution. In this case, the evidence was that a Turkish court would not refuse to enforce an English costs order on public policy grounds. The evidence also suggested that it would take approximately one year to enforce an English judgment and it would cost approximately £26,000 to enforce the order (although a comparison should be made with how much it would cost to enforce in a Brussels or Lugano state). In all the circumstances, and exercising his discretion, the judge ordered security of £25,000 (but only if the the bank undertakes to dismiss the counterclaim in the event of the claim being dismissed for failure to put up security).

Jacobs v Motor Insurers Bureau

Whether English national hit by uninsured driver in Spain entitled to assessment of damages under English law

The English claimant was hit by a car driven by a German national in Spain (the car was ordinarily based in Spain). Since the driver was uninsured, it was common ground that the claimant was entitled to recover compensation from the Motor Insurers Bureau ("the MIB"). The dispute in this case though was whether the amount of compensation should be determined by reference to the law of England or the law of Spain. The MIB argued that because of Rome II, compensation should be assessed in accordance with Spanish law because that is where the accident occurred. The Court of Appeal has, however, ruled that Rome II has no application to the assessment of the compensation payable by the MIB under regulation 13 of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body) Regulations 2003. Regulation 13 provides that where an English resident is injured in a road traffic accident abroad, involving a vehicle which is normally based abroad, and it is impossible to find an insurer for the car, the injured resident can claim compensation from the MIB. The MIB must compensate the injured party as if the accident occurred in England. The Court of Appeal held that compensation should also be assessed on the basis that the accident occurred here (i.e. assessed in accordance with the law of England).

Sutherland v Turnbull

Requirements for Part 36 offer

The main issue in this case was whether the defendant had made a Part 36 offer which related to part only of the claim (Stadlen J held that he had not). The claimant did not submit that the Part 36 offer failed to comply with the requirements of Part 36.2(2), but the judge nevertheless made it clear that it did. In particular, he made the following points:

  • The offer itself did not "state on its face" that it was intended to have the consequences of Part 36 (as required by Part 36.2(2)(b)). However, following an email from the claimant's solicitor pointing out that the offer was not consistent with the provisions of Part 36, the defendant's solicitor had sent a reply confirming "for the avoidance of doubt" that the offer was made pursuant to Part 36 and was intended to have the costs consequences of Part 36. The claimant agreed that this was sufficient to satisfy Part 36.2(2)(b).
  • The offer did not "specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs" if the offer is accepted (as required by Part 36.2(2)(c)). Instead the defendant's solicitor's reply had only stated that it would "remain open for acceptance for 21 days from receipt" and that it was intended to have the costs consequences of Part 36. Following the Court of Appeal decision in Onay v Brown [2010] (Weekly Update 10/10), Stadlen J said that any reasonable solicitor reading that reply would have concluded that the defendant's solicitor intended Part 36.2(2)(c) to apply.
  • The offer did not state "whether it relates to the whole of the claim or part of it" (as required by Part 36.2(2(d)). Nevertheless, the judge concluded, on an objective reading of the offer, that it was an offer to settle all outstanding liability issues.

COMMENT: This case follows a recent trend by judges not to apply too literal an approach to the requirements of making a Part 36 offer. In this case, the judge allowed the defendant some considerable latitude despite the clear requirements set out in Part 36.2(2). It would therefore appear that the courts are keen to promote settlements and not to allow "technical" challenges to Part 36 offers, where possible.

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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