UK: (Re)Insurance Weekly Update 8- 2016

Last Updated: 7 March 2016
Article by Nigel Brook

A summary of recent developments in insurance, reinsurance and litigation law.

This week's caselaw:

Legg v Sterte Garage & Anor: Court of Appeal decides whether costs order should be made against insurers of a party and considers the effect of the lay-out of a policy term

Berrymans Lace Mawer for appellant, Jacobs & Reeves for respondents

A pollution claim was brought against a garage company. The company's public liability insurers initially conducted the defence but ceased to do so when they formed the view that the claim was not covered under the policy. Judgment in default was then ordered and the company, which was insolvent, was unable to pay the judgment and the costs order made against it. The claimants therefore sought, and obtained, an order that the insurers pay their costs. The insurers appealed to the Court of Appeal. It has now held as follows:

(1) The judge had correctly exercised his discretion under section 51 of the Senior Courts Act 1981 (which allowed him to make a non-party costs order).

The relevant criteria for making a costs order against insurers were set out by the Court of Appeal in TGA Chapman v Christopher [1998]. They are: (a) the insurers determined that the claim would be fought; (b) the insurers funded the defence; (c) the insurers conducted the litigation; (d) the insurers fought the claim exclusively to defend their own interests; and (e) the defence failed in its entirety.

The key issue here was whether the insurers had acted exclusively or predominantly in their own interests in defending the claim. The Court of Appeal concluded that they had. They had sought to avoid a claim falling within the cover provided by the policy. If they had not funded the defence, the insured would not have done so: "The only reasonable inference from the precarious financial position of [the insured] and from its failure to defend the claims once the insurers withdrew their support is that, but for the insurers' support, [the insured] would not have defended the claims and the claimants would have avoided the bulk of the costs they were forced to incur". It made no difference to this conclusion that the insurers had substantially successfully defended the part of the claim which might have fallen to be covered under the policy.

(2) Although not required to do so, the Court of Appeal also considered whether the insured had been entitled to an indemnity against the claimants' costs under the policy (and thus this entitlement would have been transferred to the claimants under the Third Party (Rights against Insurers) Act 1930).

The Court of Appeal acknowledged that (in the absence of express wording) the general position is that the insured's own costs in defending an unsuccessful claim are not covered under a liability policy. (The Court of Appeal's comments were made in reference to an extract from MacGillivray on Insurance Law, which in turn was discussing a sample clause which would not provide cover for unsuccessful claims. However, its suggestion that an insured should seek to agree wording in the policy to cover unsuccessful claims suggests that the Court of Appeal did not believe that there would be cover in the absence of such wording).

However, the policy can provide broader cover (where the claim is unsuccessful or does not fall within the scope of the policy). The policy in question had a definition of "Costs and Expenses", which provided as follows:

"1 any claimant's legal costs for which the Policyholder is legally liable

2 all costs and expenses incurred with the [insurer's] written consent

3 all solicitors' fees for legal representation at

... (b) any proceedings in any court...

in connection with any event which is or may be the subject of indemnity".

The lay-out above suggested that the last sentence (which covers costs incurred even if there has been no insured loss) qualifies only paragraph 3 and not paragraphs 1 and 2 as well.

However, the Court of Appeal held that the lay-out was "only a factor to be taken into account and its effect may well be displaced by the context or sense of the clause in question". To find that the last sentence did not qualify paragraph 2 would lead to the "extraordinary result" that insurers would not be liable to pay costs incurred with their consent if the claim against the insured failed. Even if the insured received a costs order in its favour, this would be unlikely to cover all its costs and, in any event, the claimant may be unable to pay. The Court of Appeal held that that consideration was "more than sufficient to displace any weight that may be placed on the lay-out". Accordingly, the last sentence also qualified paragraph 1, and so the insured was entitled to be indemnified by the insurers against the costs order in favour of the claimants.

Accordingly, the appeal was dismissed.

COMMENT: The decision regarding section 51 is in line with earlier caselaw. It confirms that an insurer is likely to be liable for costs where an insured is insolvent or is unlikely to be interested in defending the claim against it. Insureds will usually have an interest in defending professional negligence claims (for reputational reasons), though, so this condition is unlikely to be met in such cases (unless the insured is insolvent).

The Court of Appeal's view that, in the absence of express policy wording, the general position is that the insured's own costs in meeting an unsuccessful claim are not covered under a liability policy because such claims do not fall within the cover provided by the policy is of interest. (The Court of Appeal's comments were made in reference to an extract from MacGillivray on Insurance Law, which in turn was discussing a sample clause which would not provide cover for unsuccessful claims. However, its suggestion that an insured should seek to agree wording in the policy to cover unsuccessful claims suggests that the Court of Appeal did not believe that there would be cover in the absence of such wording).

However, there is prior authority for the proposition that defence costs are payable where there is a "mere possibility" that the claim advanced against the insured is covered by the policy. In other words, the fall-back position is to look at the nature of the claims rather than whether or not they eventually succeed. In practical terms, that is possibly a better approach, since there is no need to await the (uncertain) outcome of the case in order to determine whether the defence costs are covered under the policy.

Ocean Finance v Oval Insurance: Whether brokers were negligent in failing to give a block notification/apportionment between producing and placing brokers

Triton Global for defendant, Simmons & Simmons for third parties

The claimant sold secured loans and PPI. It retained the defendant producing broker, which in turn retained the third party defendant placing broker. In November 2008, the FOS Ombudsman's handed down a final decision (in a complaint which did not involve the insured) in which it had found that it is a defect in the selling process if a firm fails orally to set out the cost of the PPI. The insured then recognised (and told its producing broker) that "if the question was asked whether [the insured] had disclosed the cost of the PPI in addition to the loan the answer in 99% of cases would be that it was disclosed in the paperwork but not orally on the phone". In September 2009 (over a month before expiry of the insured's 2008/09 professional indemnity policy), the FSA (in response to its "serious concerns" regarding how PPI complaints had been dealt with by firms) published CP 09/23, which advised firms how to deal with such complaints. In particular, a full past business review would probably need to be conducted, and this would have identified the defect in the insured's sales process.

The placing broker then made a limited notification of circumstances under the 2008/09 policy of complaints which had already been made and rejected by the insured in relation to PPI. However, neither the placing nor the producing broker made a block notification to insurers of the entirety of the insured's 18,000 sales of PPI policies.

When a block notification was subsequently made under the following year (renewal) PI policy, it was not accepted by the insurer, who contended that any block notification should have been made under the 2008/09 year and relied upon a policy term requiring prompt notification of "any circumstances which may give rise to a loss or claim".

Cooke J noted expert evidence which showed "a market awareness of the unwillingness of underwriters to accept block notifications", but said that the pensions mis-selling scandals meant that the concept of such notifications was not unfamiliar and should not have been unfamiliar to brokers. Given that the policy referred to "any circumstances which may give rise to a loss or claim", the brokers had to consider whether there was a "real possibility", as opposed to a remote risk, of a claim. Although the judge accepted that there had been a risk that the insurer would reject a block notification under the 2008/09 year, legal advice would have confirmed that there would have been a strong case that such notification was valid: "It is clear that the "may" or "might" criteria creates a low threshold for notification of circumstances.... The risk of not obtaining cover for the ensuing year existed regardless of block notification to the earlier year. However it is not hard to envisage circumstances in which a renewal offer could be sought, obtained, and accepted, with disclosure of material facts prior to expiry of the current year, followed by block notification to the current year policy".

The judge therefore found that both the producing and placing brokers had breached their duties by failing to give the block notification (notwithstanding that the producing broker had played down the risk of multiple claims emerging against the insured to the placing broker): "this is a situation where both brokers were at fault because they each failed to grapple with the question of block notification at all in 2009 when they should have done in the light of the information each had (even though the information was different)". It was held that the insured would have sought legal advice and made a block notification had it been given appropriate advice by the brokers.

Adopting a broad brush approach, the judge held that the placing broker's responsibility for the loss was 30% and the producing broker's responsibility was 70%. The producing broker had already settled with the insured but the placing broker argued that it should not be held responsible for costs incurred after the date at which it argued a settlement should have been achieved. Cooke J held that: "when one is concerned with a settlement of this kind, it is the global figures which matter. In the context of a claim which, with costs, totalled over £6 million, a settlement of £2.55 million in all, together with the provision of an indemnity which is unlikely to be called on, constituted a very good settlement. It cannot in my judgment be said that there was any unreasonable element in the settlement, since the figures must be considered as a whole rather than broken down to the constituent parts in the way that [the placing broker] suggests. In any settlement there is a question of give and take and the way in which sums are attributed to particular elements of the claim and costs is ultimately neither here nor there, in the absence of some extraordinary feature".

There was little discussion in the case about the duties owed by a placing broker to a producing broker. Although the Terms of Business Agreement (TOBA) entered into between the brokers referred to the provision of advice by the placing broker "upon request" from the producing broker, the judge said that: "In a longstanding relationship between producing and placing brokers a duty to act as a prudent placing broker on the information provided to it is not easily displaced by such requests for a requirement or notice in writing. Such a request or notice was implied and was in fact acted on as appears from the history of the brokers' relationship".

COMMENT: This case continues the trend of the courts to accept the validity of block notifications in circumstances where few actual complaints have been made against the insured at the time of notification. The most recent example of this was the case of McManus v European Risk (see Weekly Update 03/13), where a blanket notification was validly made following discovery of widespread negligence by a firm. Here, it was apparent that there had been a defect in virtually every PPI policy sold by the insured, and so possibly an even stronger case for notification than that in McManus existed. Equally, the insurer in this case was justified in arguing that the block notification which was eventually made was too late and excluded under the relevant policy.

UK Insurance v Holden & Anor: Meaning of "use" in a motor insurance policy

Keoghs for claimant, DAC Beachcroft for defendant

The defendant, a garage mechanic, obtained permission from his employer to use the loading bay at his work premises to carry out some repairs to his own car. Due to his negligence when carrying out the repairs, a fire started at the premises and spread to adjoining premises. The employer's insurer paid out and then sought to bring a subrogated claim against the defendant. The only insurance policy which might potentially cover that claim would be the defendant's ordinary car insurance. The insurer of that policy sought a declaration of non-liability.

Section 145(3) of the Road Traffic Act 1988 provides that a motor insurance policy must cover liability caused by the "use" of the vehicle "on a road or other public place". Waksman QC HHJ held as follows:

(1) The policy was worded too narrowly when it referred to having "an accident in your vehicle" and should, in light of section 145(3), be read as covering legal responsibility if there is an accident caused by, or arising from, the use of the vehicle.

(2) The policy itself did not limit cover to roads and there was nothing "commercially odd" about the policy giving cover which more generous than section 145(3). Accordingly, the policy covered the location of the accident.

(3) In light of that conclusion, it was unnecessary for the judge to consider the effect of the ECJ decision of Vnuk (see Weekly Update 34/14). Nevertheless, he concluded that "it must be implicit in this decision that, in an appropriate case, cover can extend further than where the accident happens on a road" and so section 145(3) is incompatible with the relevant EU motor directive, as interpreted by the ECJ in Vnuk.

(4) Vnuk was also held to be authority for the finding that "use" suggests some activity performed by the vehicle as a vehicle: "Thus, carrying passengers or goods, transporting the driver to some destination, positioning a trailer or caravan, or parking, by way of some examples. On the other hand, sleeping in an ordinary saloon car would not in my judgment constitute such use because the normal function of a saloon car does not include providing accommodation".

Undertaking a repair to a vehicle is not a "use" of it: "The thing being used is the repair equipment". Furthermore, it is not a "normal function" of a car to undergo repair (although driving to test a repair would be a different matter).

The judge also noted that the courts of other jurisdictions have adopted different approaches to this question.

(5) Nor could it be said that the fire was caused by the use of the car. This case differed from that of Dunthorne v Bentley [1999], where an accident arose when a driver, who had run out of petrol, ran across the road, having seen a colleague (and where the accident was said to have been caused by her driving, and then parking up, of the car).

Accordingly, there was no cover under the defendant's policy.

Knauer v Ministry of Justice: Supreme Court rules that the multiplier in a dependency claim is calculated from the date of trial

Charles Lucas & Marshall for appellant, Government Legal Department for respondent

The usual method of assessment of a dependency claim under the Fatal Accidents Act 1976 is the "multiplier method", by which the assessed net annual loss of dependency (the multiplicand) is multiplied by a number of years (the multiplier). The House of Lords has previously held that the multiplier is to be calculated from the date of death, rather than from the date of trial (which may be many years later). The problem with this approach (as was noted by the Supreme Court in this case) is that it "means that the claimant is suffering a discount for early receipt of the money when in fact that money will not be received until after trial". As a result, it was said that this approach results in under-compensation in most cases.

The Supreme Court decided that this was a case where it should apply the 1966 Practice Statement, whereby the House of Lords declared that it could depart from its previous decisions. It therefore departed from the earlier decisions and concluded that "the correct date as at which to assess the multiplier when fixing damages for future loss in claims under the Fatal Accidents Act 1976 should be the date of trial and not the date of death".

Cofely v Bingham & Anor: Whether an arbitrator should be removed for apparent bias

Stephenson Harwood for claimant, Browne Jacobson and Wheelers for defendants

The Claimant sought an order that Mr Bingham be removed as arbitrator from an ongoing arbitration between it and the second defendant ("Knowles"), pursuant to section 24(1)(a) of the Arbitration Act 1996 ("the Act"), on the ground that circumstances exist that give rise to justifiable doubts as to his impartiality. Those doubts about his impartiality are alleged to involve apparent bias, not actual bias.

Following a dispute between the parties, Knowles sought the appointment of Mr Bingham and his appointment was approved by the Chartered Institute of Arbitrators ("CIArb). No prior involvement with Knowles was mentioned by Mr Bingham on his acceptance of nomination form. Subsequently, a decision was handed down by the TCC in which it was found that a fraudulent misrepresentation had been made by an employee of Knowles in a separate appointment of Mr Bingham. Further evidence was sought and it subsequently came to light that over the last 3 years, 18% of Mr Bingham's appointments and 25% of his income as an arbitrator derived from cases involving Knowles.

Hamblen J found that a case of apparent bias had been made out.

It was held in A v B (see Weekly Update 33/11 ) that regular appointments by the same party can amount to apparent bias, particularly if it raises questions of material financial dependence. The CIArb acceptance of nomination form calls for disclosure of "any involvement, however remote" over the last 5 years and it was held that acting as an arbitrator in which Knowles was either a party or a representative of a party was a form of involvement. Even though the evidence showed that Knowles had not directly appointed the arbitrator in many of the earlier cases, it had influenced and "steered" the appointment process. In particular, the existence of Knowles' appointment "blacklist" was significant: "It means that the arbitrator/adjudicator's conduct of the reference may lead to him/her falling out of favour and being placed on that list and thereby effectively excluded from further appointments involving Knowles. That is going to be important for anyone whose appointments and income are dependent on Knowles related cases to a material extent, as is the case for Mr Bingham". Furthermore, even though only 3 out of 24 prior cases in which Mr Bingham had acted as an arbitrator involved Knowles as a party, that was sufficient to trigger disclosure under both the acceptance of nomination form and the "Orange List" included in the IBA Guidelines on Conflicts of Interest in International Arbitration (which calls for disclosure where "the arbitrator has, within the past three years, been appointed as an arbitrator on two or more occasions by one of the parties, or an affiliate of one of the parties"; or "the arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration involving one of the parties, or an affiliate of one of the parties"). Furthermore, the aggressive manner with which Mr Benjamin had dealt with the claimant's concerns meant that "cumulatively" these grounds raised a real possibility of apparent bias.

Family Mosaic Home Ownership v Peer Real Estate: High Court considers the Shorter Trials Scheme

Trowers & Hamlins for claimant, Hogan Lovells for defendant

The launch of the Shorter Trials Scheme was reported in Weekly Update 36/15. This pilot scheme (which will run until 30th September 2017) is for commercial cases which do not require extensive disclosure or evidence (and there are no allegations of fraud). For such cases, a streamlined procedure should result in judgment within a year of starting proceedings. Different procedure rules will also apply – for example, disclosure will be limited to the documents on which a party relies plus particular documents requested by the other side. The costs budgeting rules will only apply if the parties agree.

This is the first case to discuss the scheme, an application having been made to transfer an action into it.

Birss J held that although the relevant practice direction for the scheme (PD51N) does not expressly say so, the court does have power to transfer an existing case into the STS (and to transfer a case out, if a case is started in the scheme). He noted that a transfer does not affect the court or division in which a case was begun, so, for example, a case commenced in the Chancery Division remains in that division after transfer. Applications to transfer must be made to a judge (and not, for example, a Chancery Master). Where reference is made to the scheme being suitable for "business cases" in the Chancery Division, the judge said that that should be construed in the widest sense and excludes only "purely private, non-commercial matters such as family property and family trusts".

The judge held that it was appropriate to order the transfer of this case. As for the procedure following transfer, he noted that allocation to a "designated" judge at the first CMC (or earlier) does not mean that only certain judges are designated to hear cases in the scheme. Since the trial date and pre-trial review will be fixed at the CMC, he directed the parties to liaise with Chancery Listing in advance of the CMC.

Anglia Research v Finders Genealogists: Whether pre-action disclosure can be sought if claim form issued before hearing

Carter-Ruck for claimants, Child & Child for defendants

The claimants applied for pre-action disclosure under CPR r31.16. The next day they issued a claim form (as a limitation period was about to expire), but they had not served the claim form by the time of the hearing of the application. One issue in this case was whether the court had jurisdiction to make the order.

Moloney QC HHJ approved the approach of Morgan J in a recent unreported decision, Personal Management Solutions v Gee 7 Group. Morgan J held that an earlier line of cases which had been thought to authorise pre-action disclosure applications post-issue had been misinterpreted. He instead found that the court would not have jurisdiction to hear a pre-action disclosure application where proceedings were commenced after the application was made but before it was heard.

However, if the claimant undertook to discontinue the first action and begin a second action which was not an abuse of process, the court would have jurisdiction over a CPR r31.16 application relating to the second action, but not the first.

Broadhust v Tan: Part 36 and low value personal injury cases

Winn solicitors for first appellant, Horwich Farrelly for second appellant

These conjoined appeals concerned claimants who had obtained more advantageous judgments than their earlier Part 36 offers. Both claims fell under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. Rule 45.29B provides that, for a claim started under this Protocol on or after 31 July 2013, "the only costs allowed" are the fixed costs set out in the rules. First instance judges have differed as to whether that means that the indemnity costs to which the claimant is entitled under Part 36 are restricted to the fixed costs prescribed by the Protocol.

The Court of Appeal has now held that Part 36 overrides Rule 45.29B and, accordingly, the claimants are entitled to costs assessed on the indemnity basis from the date when the offer became effective. Clearly this leads to a more generous outcome for claimants who beat their Part 36 offers, but the Court of Appeal did not find this outcome would be so surprising or unfair as to justify a different conclusion: "a generous outcome in such circumstances is consistent with rule 36.14(3) as a whole and its policy of providing claimants with generous incentives to make offers, and defendants with countervailing incentives to accept them".

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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