UK: Insurance And Reinsurance Update - 3 July 2012

Last Updated: 16 July 2012
Article by Nigel Brook

Welcome to the twenty-third edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2012.

These updates are aimed at keeping you up to speed and informed of the latest developments in caselaw relevant to your practice.


  • Fairclough Homes v Summers
    The Supreme Court decides whether a court can strike out a statement of case after trial where a claim against an insured was fraudulently exaggerated.
  • AXN & Ors v Worboys & Ors
    A case on whether motor insurers were liable for the acts of an insured driver and the meaning of "arising out of" in a statutory context.
  • Cox v Ergo Versicherung
    The Court of Appeal decides whether the quantification of damages recoverable from a German insurer is governed by English or German law.
  • Fish & Fish v Sea Shepherd UK & Anor
    A Clyde & Co case in which the court examined common design/joint tortfeasors.
  • F&C Alternative Investments v Barthelemy
    A Court of Appeal decision on whether Part 36 costs consequences should be applied to a non-Part 36 offer and the appropriate discretionary rate of interest.
  • Hemming & Ors v Westminster City Council
    Part 36 offers and whether it would be unjust to award the usual costs consequences, as well as when interest on costs should start running.
  • Yukos Capital v OJSC Rosneft
    The Court of Appeal considers the act of state doctrine and issue estoppel.
  • Aveng (Africa) Ltd v Government of the Gabonese Republic
    A case on freezing orders and whether a defendant had a proprietary interest in frozen funds.
  • Other News
    The Law Commission has published a Consultation Paper on a Business Insured's Duty of Disclosure and Warranties.


Supreme Court decides whether court can strike out a statement of case after trial/ fraudulent exaggeration of a claim

The claimant was injured at work. His employer admitted liability through its insurers. In 2007, the court gave judgment for the claimant on liability, damages to be assessed. The defendant obtained and disclosed covert surveillance footage which showed (and the judge accepted) that the claimant had dishonestly and grossly exaggerated his injuries. It was accepted by both parties that the claimant was guilty of serious abuse of process. However, the issue in this case was whether the court had any power to strike out the claim (either before or after trial). Both the trial judge and the Court of Appeal held that this power did not exist and the defendant appealed to the Supreme Court.

It is well established at common law that if a genuine claim under an insurance contract is dishonestly exaggerated, the whole claim will be dismissed but that rule applies to claims brought under insurance contracts. In Shah v Ul-Haq (see Weekly Update 21/09) the Court of Appeal held that there was no general rule of law to this effect - instead a person can never be deprived of a judgment for damages to which he is otherwise entitled on the ground of abuse of process. In this case, the Supreme Court has now held that "notwithstanding the decision and clear reasoning of the Court of Appeal in Ul-Haq, the court does have jurisdiction to strike out a statement of case under CPR 3.4(2) for abuse of process even after the trial of an action in circumstances where the court has been able to make a proper assessment of both liability and quantum. However, we further conclude... that, as a matter of principle, it should only do so in very exceptional circumstances". It held that this was not an exceptional case and the court was able to assess both the liability of the defendant and the true amount of that liability.

The insurers (the "driving force" behind the appeal) had argued that the claim should be struck out in order to deter fraudulent claims of this type because they are "all too prevalent". The Supreme Court countered that there are other ways to deter such claims, eg (1) the judge will not draw any inferences in the claimant's favour and the damages which will be received will likely be lower than would have been ordered had he been truthful from the start; (2) it is likely that the claimant will be ordered to pay the defendant's costs relating to the fraudulent part of the claim on an indemnity basis. Whilst the Supreme Court accepted that a defendant would not want to make a Part 36 offer (because it would then have to pay the claimant's costs), it advised defendants to further protect themselves with a Calderbank offer: and (3) the claimant could be held in contempt and that might result in an prison sentence in some cases.


Whether motor insurers liable for acts of insured driver/meaning of "arising out of" in statutory context

Following the conviction of a taxi driver for poisoning and rape, some of his victims commenced civil proceedings against him and his insurers. The issue in this case was whether the insurers were liable as providers of the compulsory motor insurance required by the Road Traffic Act 1988 ("the Act").

Under the Act, insurers must satisfy a judgment if it relates to a liability covered by the terms of an insurance policy. The insurance policy in question must insure a person in respect of a liability incurred in respect of "bodily injury to any person ...arising out of the use of the vehicle".

The key issue here was whether the relevant policy insured the taxi driver for liability for bodily injury "arising out of the use of the vehicle". Silber J reviewed prior insurance cases which have considered the wording "arising out of" but concluded that these cases were "very different" because here the words were used in a statutory provision rather than an insurance contract. He concluded that: (a) "arising out of" is wider than "caused by" and that it is too narrow a test to look for a proximate or an effective cause; (b) it is the bodily injury, and not the wrongful act, which must "arise out of" the use of the vehicle at the time the injury is suffered (and not at the start of the journey); (c) all material circumstances, including the purpose of the driver, must be looked at. On the facts of the case, the judge concluded that there was no link between the bodily injury and the use of the taxi on a road at the time when the claimants were injured: "the claimants' injuries arose not because of any wish to continue the journey, but instead because [the driver] wanted to poison the claimants so as to facilitate and implement his wish to sexually assault them. This is a factor, which is not connected with the use of the taxi on a road".

Nor was there any requirement under the Act that a car insurance policy cover administering sedatives and assaulting passengers in the car. Further, the use of the taxi was outside the permitted uses specified in the motor insurance policy. Here, all the facts of the case showed that the essential purpose of the journey was a criminal purpose and hence the use of the car in that way did not fall within the scope of the insurance policy.

COMMENT: It is interesting to contrast the recent Supreme Court decision in SA v ENE Kos 1 (see Weekly Update 15/12) where the words "arise from" in the context of an indemnity fell to be considered. There, the majority referred to the need to identify an effective cause, but in this case, the judge ascribed a wider meaning to this phrase. This case therefore demonstrates how the same phrase will be interpreted differently by the courts depending on the context in which it is used.


Whether quantification of damages recoverable from German insurer was governed by English or German law

The first instance decision in this case was reported in Weekly Update 39/11. The claimant is the widow of an Englishman killed by a German driver in Germany (the accident taking place prior to the introduction of Rome II). Relying on an EU Directive, she brought a direct claim against the driver's German insurers in England. There was no dispute that German law governed the liability of the driver (and also no dispute that he was liable). Of issue in this case was whether English or German law governed the assessment of damages recoverable from the insurers. The claimant wished to rely on the English Fatal Accidents Act 1976 ("the FAA") (as that would potentially result in a higher payout for her - under English law, she could claim compensation for loss of dependency (regardless of the deceased's legal liability to maintain her) which is fixed at the date of death and does not take into account eg any future remarriage, whereas under German law she could only claim compensation for loss of maintenance). At first instance, the judge decided that German law governed the assessment of damages and that the claimant could not rely on the FAA at all. The claimant appealed.

The Court of Appeal unanimously held that the judge had erred in finding that German law governed the assessment of damages - instead the law of the forum where the claim is heard (here, English law) applied. However, by a majority of 2:1 (Dame Janet Smith dissenting), the Court of Appeal also held that the FAA could not be relied on in this case. The problem for the claimant was that there is no English equivalent of the head of loss under the relevant section (section 844) of the German Civil Code (German law governing the identification of the recoverable heads of loss): "the only head of damages recoverable under English law by a claimant for financial loss as the result of the death of another due to the defendant's tortious act is that recoverable under FAA. That, however, as I have said, is not the same head of loss as is recoverable under section 844. There is no head of loss similar to section 844 recoverable either at common law or under any English statute". There was nothing in the language of the FAA which indicated an intention by Parliament to impose a mandatory obligation on the English courts to apply the provisions of the FAA in a case such as this one.

Thus, although "the lex fori governs the quantification, in the absence of a truly comparable norm in English law, it is appropriate for the English court to assess by reference to the coherent and, as I see it, readily applicable method derived from section 844. The alternative preferred, albeit marginally, by Dame Janet, would leave the procedural tail wagging the substantive dog".


Court examines common design issue and joint tortfeasors

Clyde & Co for first defendant

The first defendant ("SSUK") is an English company which supports the second defendant, an international conservation charity ("SSCS") which was founded by the third defendant ("W"). SSCS and W were both served out of the jurisdiction on the basis that they are necessary and proper parties to the claim against SSUK. The preliminary issue decided in this case was whether the claimant has any valid potential claim against SSUK.

The claimant alleges trespass or conversion against its property after W commanded a vessel which damaged the claimant's cages and released tuna in its possession. Hamblen J considered the following issues:

  1. Whilst directing the "attack" on the claimant's property, was W (as Master of the vessel) acting on behalf of SSUK? On the facts, the judge concluded that he was not. Although SSUK was the legal owner of the vessel, the "practical reality" was that SSCS had possession and control of the vessel. That provided strong support for the argument that W was acting on behalf of SSCS and not SSUK.
  2. Was SSUK nevertheless liable because of the "common design" principle? There is no tortious liability for facilitating the commission of a tort, even knowingly (see Credit Lyonnais v ECGD [1998]). However, there may be liability if the tort is committed "pursuant to a common design" ie if a party has been so involved in the commission of a tort as to make the infringing act his own. The claimant argued that here, even if SSUK was not present on board the vessel, it facilitated the tort by making the vessel available for the campaign, recruiting volunteers, paying the crew and obtaining financial contributions. However, on the facts, the judge held that SSUK's participation was "remote in time and place" and the matters which could be proven were "of minimal importance and played no effective part in the commission of the tort". Furthermore, SSUK only played a part in SSCS's campaign and that campaign might, but did not necessarily, involve tortious acts. Accordingly, SSUK was not a joint tortfeasor.

There was therefore no valid claim between the claimant and SSUK.


Court of Appeal decision on whether Part 36 costs consequences should be applied to non-Part 36 offer/appropriate discretionary rate of interest

The first instance decision in this case was reported in Weekly Update 39/11. The Court of Appeal considered two key issues in this case:

  1. The defendants had deliberately made an offer which was not a Part 36 offer (because they did not want to pay all the claimants' costs if the offer was accepted. Under Part 36 they would have to do so, even though they believed they were the true "claimants" in this case). The judge nevertheless decided to award the Part 36 costs consequences by analogy (the claimants having failed to beat the offer at trial). The Court of Appeal has now held that the judge erred in exercising his general discretion as to costs. He was not entitled to take the view that, had the offer been Part 36-compliant, indemnity costs would have been payable as a matter of course. In order to award indemnity costs, it must be shown that a refusal to accept an offer was unreasonable. Here, the claimants had not been unreasonable - instead, their "high hopes were dashed" and that is commonplace in litigation. The mere fact that they eventually failed to better the offer was not sufficient to make their rejection of the offer unreasonable.

    Although there have been prior High Court cases (eg Fitzroy Robinson v Mentmore (see Weekly Update 05/10) and Huntley v Simmonds (see Weekly Update 10/09) supporting the view that in an appropriate case the court could apply Part 36 offers to a non-compliant Part 36 offer by the exercise of discretion under CPR r 44, the Court of Appeal said that these decisions could be justified on their special facts. Whilst a judge can take into account a "without prejudice save as to costs" offer in deciding overall whether to order indemnity costs, it is wrong "to take as directly analogous, and as applicable, the potential costs consequences had it been a Part 36 offer".

    Furthermore, the Court of Appeal held that it is not permissible to discount a number of failures to comply with the requirements of Part 36 as "the merest technicality. Perhaps there can be de minimis errors or obvious slips which mislead no one: but the general rule, in my opinion, is that for an offer to be a Part 36 offer it must strictly comply with the requirements".
  2. The appropriate rate of interest (up to the date of judgment): At first instance, the judge awarded interest on principal at 3% over base rate up to the expiry of the offer and thereafter at 10% over base rate. The Court of Appeal held that there was clearly no justification for awarding 10% over base rate under Part 36. However, the defendants sought to argue that the economic circumstances at the time were exceptional and justified a departure from conventional rates. The Court of Appeal rejected that argument: "the court generally takes a pragmatic approach here, the rate set often being less than what the successful party might have to pay if a borrower but more than he would receive as a lender". Furthermore, judges should not look just at the actual funding position of the winning party (in this case, for example, the defendants had paid interest on bridging loans taken out to fund the litigation). They should also look at what is reasonable for the paying party. Here, the claimants were effectively small businessmen, who had been given no prior notification of the rates being paid by the defendants to fund the litigation.

It was concluded that the courts should make a general appraisal of what is fair, reasonable and proportionate and should not ordinarily have regard to (or at least be bound by) the actual rate at which the winning party can borrow funds. Finally, although an uplift of 3% above base rate for "small businessmen" was adopted in a 2002 case, that rate will "always require reappraisal in the light of changing conditions and will always yield to comprehensive evidence if shown thereby to be...inappropriate". The Court of Appeal agreed the 3% above base rate here but stressed that its decision should not to be taken as an indication that that rate is necessarily still appropriate in all cases "where interest for a period falling after late 2008 is under consideration". However, Tomlinson LJ said that "I am not aware of any suggestion...that the conventional uplift of 1% over base rate or LIBOR has become inappropriate in respect of the usual run of corporate borrowers"". Nor would he assume that 3% over base rate for small businessmen "if that has become conventional, will necessarily be shown to be inadequate".

COMMENT: This is a surprising decision from the Court of Appeal given a recent judicial trend to adopt a broad approach when assessing the costs consequences of offers which do not strictly comply with the requirements of Part 36, in order to encourage settlement offers. It emphasises the need to ensure that an offer which is intended to be a Part 36 offer fully complies with the requirements of Part 36. It is also interesting to note the Court of Appeal touching on the impact of the recent economic downturn when assessing discretionary interest - that is an issue which is increasingly being discussed by the courts - see Attrill & Ors v Dresdner Kleinwort & Anor (Weekly Update 20/12), where the judge awarded 5% above Barclays bank base rate to reflect the cost of borrowing for a private individual from January 2009 onwards.


Part 36 offers and whether unjust to award costs consequences/when interest on costs should start running

The defendant rejected the claimants' Part 36 offer but failed to equal or beat the offer at trial. It argued that it would be unjust to apply the costs consequences of rejecting the offer (which are set out in CPR r 36.14(3)) because the offer had required it to accept a certain position. It argued that such an acceptance was "too important a principle" for it - in effect, it was worried about creating a precedent which could affect it in other cases. Keith J rejected that argument, finding that it would only have shown that the defendant was, on this one occasion, prepared to accept a position and without prejudice to the stance which it might adopt in other cases (accordingly, the judge was not required to rule on whether fear of establishing a precedent does constitute a reason for disapplying the usual costs consequences).

CPR r36.14(3) provides for (a) interest on all damages of up to 10% over base rate; (b) the claimant's costs on the indemnity basis; and (c) additional interest on the claimant's costs of up to 10% over the base rate. (A) and (b) run from the date when the "relevant period" (the period for which the offer was specified to remain open) expired. However, the rules are silent as to when (c) starts to run. Keith J said that "at first blush" (c) should run from the date when the claimants put their solicitors in funds (because that is when they were deprived of the use of their money) but he gave the parties 14 days to contest that view if they wish to do so.


Court of Appeal considers act of state doctrine and issue estoppel

The first instance decision in this case was reported in Weekly Update 23/11. The claimant sought to enforce arbitration awards in its favour. These awards were set aside by the Russian courts following an application by the defendant (a state-owned company). The Dutch courts then refused to recognise the Russian judgment because it was held to be the result of "a partial and dependent judicial process". At first instance, Hamblen J held that the act of state doctrine (under which an English court will not adjudicate on the act of a foreign judgment within its territory) only applied to challenges to the validity of the relevant act of state and did not apply in this case. He also held that the defendant was estopped by the Dutch judgment from denying that the Russian courts had been biased. The Court of Appeal has now held as follows:

  1. The defendant could not rely on the act of state doctrine. Although it therefore reached the same conclusion as Hamblen J, it did so for different reasons. After a thorough review of caselaw relating to the act of state doctrine, Rix LJ said that "The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed". He identified the following limitations to the doctrine:

    1. The relevant act of state must generally take place within the territory of the foreign state;
    2. The doctrine will not apply to foreign acts of state which are in breach of clearly established rules of international law or contrary to English principles of public policy:
    3. Judicial acts will not be regarded as acts of state for the purposes of the act of state doctrine. Accordingly, it does "not apply to allegations of impropriety against foreign court decisions whether in the case of particular decisions or in the case of a systemic dependency on the dictates or interference of the domestic government. Nor is there an absence of justiciable standards by which to adjudicate such allegations".
    4. The doctrine will not apply where allegations are made against a state not in relation to its sovereign acts but in relation to acts which affect the rights of a party under a commercial contract (a limitation now enshrined in the State Immunity Act 1978);
    5. The doctrine does not apply where the only issue is whether certain acts had occurred, not whether they were invalid or wrongful (but this limitation did not apply in this case).

However, the Court of Appeal did not agree with Hamblen J that the doctrine can "be reduced to a single formula" requiring a challenge to the validity of an act of state. Instead, the doctrine did not apply because of the limitation set out in (c) above. Its decision did not mean that the claimant had proven its allegations: "We are considering only the right to ask the English court to consider those allegations on the present hypothesis that they may be correct".

  1. The defendant was not issue estopped from denying that the Russian courts had acted in a biased fashion. That was an issue which will have to be tried. The Court of Appeal reached this decision on the ground that the Dutch court's decision was not on the "same issue" to be decided by the English courts:"it makes a great deal of difference whether the issue is being determined by reference to Dutch public order or English public order which is (or may well be) different. The point is that English public order is as explained by Lord Collins in AK Investment and the English court must determine the matter by reference to those considerations not by whatever considerations make up Dutch public order".


Freezing order and whether defendant had proprietary interest in frozen funds

The claimant obtained a judgment against the defendant which remains wholly unsatisfied. The claimant applied for and obtained a freezing order against the defendant. This froze funds in an account held by the defendant with the third party applicant (the London branch of a US bank). These funds were held in a US dollar account and were recorded as having been received for the purpose of paying interest due to the holders of notes issued by the defendant. The bank argued that the funds were not assets belonging to the defendant but instead were held on trust by the bank on behalf of the noteholders, and so those funds could not be the subject of the freezing order made against the defendant.

The bank sought to rely on the terms of an agreement which it had entered into with the defendant. This expressly provided that (inter alia) the funds were held by the bank on trust. The claimant countered (relying on opinion letters from US counsel) that under New York law there is a presumption that the deposit of funds for payment of interest does not create a trust and in this case it was significant that there was no obligation on the bank to segregate the funds. Field J rejected the claimant's arguments. He found that the wording of the agreement was unambiguous and reflected the intentions of the parties. As a result, this was not a case where, under the law of New York, extrinsic evidence would be admissible on the issue of how the agreement should be construed. Furthermore, although there was not full segregation here, it was sufficient that funds were held separately from the bank's funds in an omnibus ledger account containing monies received for the purpose of making payments due on dollar denominated notes. Thus the defendant had no proprietary interest in the monies and so the freezing order was amended.


Law Commission publishes Consultation Paper on Business Insured's Duty of Disclosure and Warranties. Two topics are addressed:

  1. Business insured's duty of disclosure: To a large extent, the Law Commission is proposing codifying current caselaw principles by the introduction of a new Act. This would provide more guidance and certainty to both policyholders and insurers. However, a new system of proportionate remedies is also proposed. This would provide that avoidance should still be available where a policyholder is dishonest, but, in the absence of dishonesty, the remedy will reflect what the insurer would have done had he known the true situation before inception. However, it will be possible to contract out of the proportionate remedies, provided clear language is used and brought to the attention of the policyholder. The Law Commission also proposes a definition of what is meant by "knowledge" when applied to a company. It suggests that this will include information known both to the "directing mind and will" of the company, as well as the persons arranging insurance. A business policyholder will be under a duty to disclose information which it would have discovered by reasonable inquiries (proportionate to the type of policy and type of company). The duty of disclosure should also include information received or held by a broker in the course of acting for the policyholder.
  2. Warranties: The Law Commission proposes (a) abolishing basis of the contract clauses; (b) a breach of warranty would suspend the insurer's liability rather than discharge it, so that, if a breach is remedied before the loss, the insurer must pay the claim; and (c) to change the law relating to warranties designed to address the risk of a particular type of loss eg the breach of a warranty to install a burglar alarm would suspend liability for loss caused by a burglar but not a flood.

The consultation will close on 26 September 2012. The Law Commission plans to complete its project (and produce a draft bill) by the end of 2013. It also advises that it hopes the Consumer Insurance (Disclosure and Representations) Act will come into force next spring. A link to the Consultation Paper is set out below.

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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