UK: (Re)insurance Weekly Update 13- 2018

Last Updated: 25 April 2018
Article by Nigel Brook
Most Read Contributor in UK, November 2018

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

Gavin Edmonson Solicitors v Haven Insurance Co Ltd: Supreme Court holds that claimants' solicitors have an equitable lien for their costs where an insurer settled directly with those claimants under the RTA portal

http://www.bailii.org/uk/cases/UKSC/2018/21.html

Solicitors are entitled, under common law, to an equitable lien for payment of their costs and disbursements. Accordingly, where a judgment, award or settlement is paid by the defendant's solicitor to the claimant's solicitor, the claimant's solicitor will be entitled to deduct his charges before accounting to his client for the balance. However, equity would only enforce that remedy where there has been a direct payment to the claimant if there has been collusion between the claimant and the payer to deprive the solicitor of his charges.

No collusion was alleged in this case. However, the payer (a motor insurer) settled directly with the claimants after it was notified of the claimants' claims on the RTA Portal. That settlement did not include an amount for the claimants' solicitors' costs or disbursements. The Court of Appeal held that, although the Conditional Fee Agreement ("CFA") entered into between the claimants' solicitors and the claimants had created no contractual liability of the claimants for the solicitors' charges, the court could use its equitable jurisdiction to intervene and order the insurers to pay the charges allowable under the RTA Protocol to the solicitors.

The Supreme Court has now unanimously dismissed the appeal from that decision, although its reasoning differed from that of the Court of Appeal. It held that the claimants did have a contractual liability to pay their solicitors' charges. It then went on to hold that "Once a defendant or his insurer is notified that a claimant in an RTA case has retained solicitors under a CFA, and that the solicitors are proceeding under the RTA Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as an interference with the solicitor's interest in the fruits of the litigation. The very essence of a CFA is that the solicitor and client have agreed that the solicitor will be entitled to charges if the case is won. Recovery of those charges from the fruits of the litigation is a central feature of the RTA Protocol".

AMT Futures v Boural: Judge decides when limitation period runs in a breach of a jurisdiction clause case

http://www.bailii.org/ew/cases/EWHC/Comm/2018/750.html

The contract between the parties contained a clause which provided that the defendants "irrevocably submit to the exclusive jurisdiction of the English courts" in relation to disputes. The defendants commenced a claim in Germany in May 2008, in breach of this clause (trial having taken place in 2014 and an appeal having been brought thereafter). The issue in this case was when a cause of action for the breach of an exclusive jurisdiction clause becomes time-barred: Is the cause of action complete when proceedings in another country are first commenced (in breach of the clause) or is there a continuing cause of action, which arises from day to day, for so long as the wrongful proceedings continue?

The judge held that the exclusive jurisdiction clause in this case obliged the defendants "not only not to begin any relevant proceedings elsewhere, but also not to continue any such proceedings, and instead to bring them to an end". That was because the English courts could not be said to have exclusive jurisdiction (ie sole jurisdiction to the exclusion of all others) for as long as proceedings are taking place in some other forum.

Accordingly, the claim was not time-barred and the claimant was entitled to claim for the whole of the period beginning six years prior to the commencement of the English proceedings.

RG Carter v Kier Business Services: Court determines whether a contribution claim was time barred after the main proceedings were settled

http://www.bailii.org/ew/cases/EWHC/TCC/2018/729.html

The Civil Liability (Contribution) Act 1978 provides that any person liable in respect of any damage can recover contribution from any other person liable in respect of the same damage. Section 1(4) of the Act provides that "A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage ... shall be entitled to recover contribution in accordance with this section ..."

Section 10(1) of the Limitation Act 1980 provides that no action to recover a contribution under the 1978 Act shall be brought after the expiry of a period of two years from the date on which such right accrued. The right to a contribution is treated, for the purpose of limitation, as accruing on the date of any judgment or award or "upon agreement to pay compensation in the case of a settlement" (s.10(4)). Section 10(4) provides that "If... the person in question makes or agrees to make any payment to one or more persons in compensation for that damage (whether he admits any liability in respect of the damage or not), the relevant date shall be the earliest date on which the amount to be paid by him is agreed between him (or his representative) and the person (or each of the persons, as the case may be) to whom the payment is to be made."

The issue in this case was what is meant by an agreement to pay. The claimant contactor had settled with the property owner and then sought a contribution from the defendant designer, who argued that the contribution claim was now time-barred.

Prior caselaw has established that under section 10(4) there must be agreement as to the amount of the payment and not merely as to liability. Also, the court should seek to identify the "earliest date" of the underlying agreement and not the subsequent date when any consent order was sealed by the court or made by the arbitrator. The issue in this case was whether section 10(4) requires the parties to have entered into a binding agreement, or whether an agreement in principle, with the final details still to be worked through, is sufficient to make time start running under the section.

The judge held that a binding agreement is required: "Since there can only be one trigger event, it follows that time cannot start to run where the parties reach an unenforceable agreement as to payment. In such a case, the litigation or arbitration remains on foot and time will only start to run under section 10(4) from the date of the subsequent formal agreement or, if the matter cannot be agreed, under section 10(3) from the date of the judgment or award".

It is open to the parties to reach an immediately binding agreement as to the settlement payment, but leave for later agreement details as to payment terms or any liability for costs, in which case time will start to run from the date of the agreement as to the amount of the payment. Equally, it is open to the parties to agree that nothing is agreed until everything is agreed, and so time will not start to run until the date of the subsequent binding agreement (or, should agreement prove impossible, the judgment or award).

Here, binding terms as to the payment were only agreed upon the execution of the settlement agreement and accordingly these proceedings were not time barred.

JMX v Norfolk and Norwich Hospitals: Judge decides not to award additional amount after claimant beat his Part 36 offer at trial

http://www.bailii.org/ew/cases/EWHC/QB/2018/185.html

At trial, Foskett J found in favour of the claimant on the issue of liability and that the claimant had bettered his Part 36 offer at trial. Of issue in this case was whether the claimant was entitled to the additional 10% uplift on all damages under CPR r36.17(4)(d). That was in dispute because that section provides, in relevant part, that "provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount...calculated by applying the prescribed percentage...to an amount which is (i) the sum awarded to the claimant, or (ii) where there is no monetary award, the sum awarded to the claimant in respect of costs" shall be awarded (unless it is unjust to do so).

The defendant argued that the case had not "been decided" because according to CPR r36.3(e), a case is "decided" only when "all the issues have been determined, whether at one or more trials". Foskett J agreed that a claim for damages has not been "decided" until both liability and quantum has been determined by the court.

However, the judge went on to note that it is possible to make separate Part 36 offers covering different issues in a case. So if an offer is made in relation to liability, and beaten at trial, the additional amount can be awarded (even though damages will have to be assessed later on). However, the effect of CPR r36.17(4)(d) is that the "additional amount" can only be awarded once, no matter how many claimant Part 36 offers end up being beaten by the claimant. The judge declined to exercise his discretion to deal now with the costs of the proceedings to date in this case though. The additional amount could be awarded after damages had been decided or, if the case settles, the claimant can ask the court to deal with the additional amount at that stage.

COMMENT: Where there is a split trial (with issues of liability and quantum being decided separately), certain judge have held in the past that they could not be told about the position as to Part 36 offers, and so could not deal with costs, after deciding liability but before deciding quantum issues. However, from 6th April 2015 it has been possible to tell a judge about the existence of, and the terms of, a Part 36 offer where it relates solely to any part of, or issue in, a case which has been decided (even though the case itself has not been decided). The judge can also be told about Part 36 offers which did not relate solely to the issue which has been decided, but not the terms of those offers. This case confirms that the judge can award the additional amount after liability has been decided, but before quantum has been assessed (although it cannot then be awarded again if other Part 36 offers are beaten later on).

JSC BTA Bank v Tyrkiye Vakiflar Bankasi: Judge considers a jurisdiction clause in favour of the courts in one part of a country

http://www.bailii.org/ew/cases/EWHC/Comm/2018/835.html

Dicey, Morris and Collins on the Conflict of Laws (15th edn) provides that: "If a contract provides that all disputes between the parties shall be referred to the exclusive jurisdiction of a foreign tribunal, not only will proceedings brought in England in breach of such agreement usually be stayed, but also the foreign court is deemed to have jurisdiction over the parties. A contractual submission to a particular court is not of itself a submission generally to the jurisdiction of all courts of that country; the question is one of construction of the contract."

In this case, the relevant contract contained a clause providing for Turkish law and "place of jurisdiction is Ankara". One of the issues in this case was therefore whether one of the parties could challenge the jurisdiction of the Istanbul Court. Butcher J held that there could be well be a submission to all the courts of a country if the place of jurisdiction was a city in a particular country (especially if it is the capital city): "This would depend in part, as it seems to me, on the extent to which the courts in that country operated independently of each other; whether there might be transfers between courts; and whether, in view of such matters, it was plausible that parties might have wished to choose only the courts of a particular city or place within the country rather than the courts of the country".

As the judge lacked material as to whether there was any factual matrix regarding the drafting of the contract, he was only able to conclude that the claimants (who were arguing that there had only been a submission to the courts of Ankara and not Istanbul) had shown a serious issue to be tried and a good arguable case.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nigel Brook
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions