UK: Are You Taking A Risk With Your Insurance?

Last Updated: 14 January 2009
Article by David Robinson

Whether you are the Finance Director of a major company or in business in a modest way or simply a private individual you should take extra care to ensure that you do not take a risk that may prejudice you when you suffer a claim. The English Courts have recently clarified the position on the obligations of an insured when reporting to its insurers where that insured has duties to report either circumstances or claims. Unless care is taken, first to understand the obligation the insured is under in terms of timing, and second on the scope or breadth of the notice (what it contains by way of detail about what has happened) there is a real risk that the insurer who may wish to, may take advantage of the insured's either lateness or lack of clarity and lawfully avoid making any payment to the insured.

This means that potentially tens or hundreds of millions of pounds of claims may go unpaid which would otherwise be paid.

Reduced capital bases following recent steep falls in World-Wide markets, coupled with sharp reductions in available credit may incline insurers to take advantage of the position the recent decision of the English Court of Appeal has set in the case of HLB Kidsons v Lloyd's Underwriters and others.

Briefly, the facts in the Kidsons case are that this firm of Accountants which had been selling tax schemes which were intended to assist taxpayers to mitigate (reduce) the amount of tax they might otherwise have to pay in certain situations became concerned that some of those schemes which they had sold and were selling might have either been mis-sold, incorrectly implemented, or incorrectly designed (or a combination of these) and that in consequence they might face claims. An employee in one of their offices pointed to deficiencies that he thought existed in these schemes and first the partnership management board of the firm and then the board of the wholly owned subsidiary company of the firm through which the products were sold met to consider what ought to be done in light of concerns the individual was expressing. On 30 August 2001, the subsidiary company board resolved to instruct the firm's partnership secretary to notify their professional indemnity insurers that there may be circumstances which may give riser to claims.

The following day, the firm's partnership secretary wrote to the firms brokers as instructed by the company's board, i.e. with the intention of notifying the firm's underwriters that circumstances existed which may give rise to claims across the range of products that the firm had, and was selling. The letter was sent to the firm's insurance Brokers. It was shown to the lead underwriter on the policy, one who was on the placing, not claims side of the syndicate, and returned "Noted". A while later a further copy of the letter was, packaged in a claims file wrapper, produced to the lead underwriter again, this time to someone who dealt with claims. The English court held that the first presentation did not have the intended effect of making a notification of circumstances but instead (and contrary to the insured's interest) amounted to a nothing. The second presentation did, the court held amount to an effective notification, but the notification was said not to be as wide as the insured intended it to be (and indeed needed it to be to cover the spectrum of losses foreseen by the board of the company as reported by the employee. So, only a proportion and not all of the claims which have subsequently emerged and been made have been held to be covered by insurance. The unfortunate partners have been left shouldering the cost of all the claims while the policy contest has been fought out, and of the litigation too.

But the unlucky partners' problems do not end there because, in common with many insurances of this type, and many professional practices have similar cover against the cost of civil liability claims, they gain protection against the cost of claims in the future if they notify circumstances before the expiry of their policy and this policy contained the clause that such notification must be made by them, as soon as practicable. The firm's policy was underwritten by a number of insurers on what is termed a "line slip". Each individual insurer on this slip was entitled to be shown notice of claims. A proportion of the insurers were not shown the notification until well after the policy period which the courts held was not as soon as practicable. The consequence of that was that the proportion of the cover under the policy, attributable to those insurers was lost to the partners.

Anyone who was not a lawyer who sat through the case in court would have been astounded to see the range of issues which the underwriters dragged into the case. From what was in the mind of the author of the letter as to what he intended to achieve by writing it (the underwriters contention was that he did not intend to notify anything but was merely 'testing the water') to the business background of the firm at the time (considering as it had been a merger with another firm of accountants and so there was not intention to make a notification which would in turn become reportable during the due diligence process the two firms would go through in the process of merging.

Whether they intended to or not, in the eyes of the English courts, Kidsons took a risk with their insurance and have paid a high price. What the partners wanted was certainty, and that is certainty that if any claims from any of these products arose then they would be paid by their insurers. Are you taking risks with your insurance?

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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.