UK: HFW Insurance & Reinsurance Bulletin - February 2010

Last Updated: 17 February 2010

Costs – A Revolution Underway?
By Graham Denny

The Jackson Report

Jackson LJ's final report on costs in civil litigation was published on 15 January 2010. The Report is extensive and HFW's specialist costs department will be circulating a more detailed client briefing shortly. The recommendations include:

Conditional Fee Agreements (CFA) / After the Event insurance (ATE)

CFAs are seen as a major contributor to disproportionate costs in civil litigation. It is recommended that success fees and ATE insurance premiums should cease to be recoverable from the opposing party. This will be welcomed by UK property/casualty insurers but not ATE insurers.

Costs shifting

Currently most civil litigation follows the "loser pays" principle. It is recommended that this should remain in commercial litigation, though not in personal injury ("PI") or defamation cases where it is recommended that the claimant should not be required to pay the defendant's costs if the claim is unsuccessful. The Report also proposes a 10% uplift in relation to PI damages, presumably to give the claimants the means of funding success fees. There are concerns that these measures as a whole may lead to an increase in unmeritorious PI claims and unwarranted defamation cases having a restrictive effect on the media.

Contingency fees

The Report recommends that these be permitted with appropriate regulation and a requirement for a client to take independent advice on the terms of such contracts. This is a significant change from the current regime and will fuel the ongoing debate on collective/class actions, particularly in view of the proposals in the Financial Services Bill ( www.hfw.com/insurancereinsurance-bulletin-issue-17/) (www.hfw.com/insurancereinsurance-bulletin-issue-17/).

Collective actions

There should be no change to the full costs shifting position (save for personal injury collective actions), although the court should have a discretion to order costs on a different basis where appropriate.

Third party funding

Third party litigation funding is supported, particularly Before the Event cover which is considered to be underused in England and Wales. There may be opportunities for insurers in this area.

Case Management

The report considers a number of areas. There is support for the assignment of a judge for the life of the case. In addition:

  • Pre-Action Protocols: it is considered that Pre-Action Protocols perform a useful function, however the "one size fits all" Pre-Action Conduct Practice Direction leads to costs being incurred unnecessarily and should be repealed. Instead, there should be costs sanctions to deter unreasonable behaviour.
  • Disclosure: there should be appropriate training for judges, solicitors and barristers on the efficient handling of e-disclosure. Large commercial cases should have a "menu" of disclosure options available.
  • Witness statements and expert reports: case management measures should be used to control their length and content. Costs sanctions should be imposed on parties producing unnecessarily long and irrelevant statements/reports.
  • Costs management: judges should take a more robust approach to ensure realistic timetables are observed and that the costs are proportionate. There should be cost management procedures which can be used by the judges where appropriate. In addition there should be training for solicitors, barristers and judges in costs budgeting and costs management.
  • Part 36: it is recommended that if a claimant obtains a more favourable result than its own Part 36 offer, the claimant's damages should be increased by 10%. This is to further incentivise defendants to accept such offers. The report recommends a reversal in the Court of Appeal decision in Carver v BAA [2008] EWCA Civ 12 which held that money is not the sole governing factor in determining whether a claimant has beaten a defendant's Part 36 offer.
  • ADR: whilst this is not made compulsory, Jackson LJ recognises that this is underused. He recommends a campaign to promote knowledge of these procedures and for an authoritative book to be written explaining how the procedures work and listing reputable providers of such services.

The report is extensive and makes recommendations on many other areas not set out above such as intellectual property litigation; small business disputes; judicial review and appeals. If the proposals are accepted, current rules and procedures could be used to implement some of the recommendations, however primary and secondary legislation will be required to implement many of the proposals.

The "Burden" Of Solvency II
By Kapil Dhir and Andrew Carpenter

Solvency II heralds a number of administrative burdens, not only in preparation for its solvency requirements, but in its reporting requirements. The Solvency and Financial Condition Report ("SFCR") is seen as one such burden. The SFCR, it is proposed, will draw from a number of sources within an insurer to illustrate, in detail, how the entity manages and operates risk.

Many in the market are seeing this proposal, at best, as burdensome, time-consuming, and expensive. Some see it as entirely unnecessary. Whilst improving the availability of public information is a reasonable aim, specific problems are:

  • Work duplication - much of the information in the SFCR is already available in the annual report and accounts.
  • Additional effort in producing the report leads to an inevitable increase in costs.
  • Disclosure of commercially sensitive information - revealing lists of policyholders to the regulator and the public.
  • Uncertainty surrounding how the regulator will manage the public disclosures.

Another question is who, other than the regulator, could need the information. Investors and the public have the annual reports and accounts. Consumers are unlikely to want the extra information to make an assessment of whether or not to place their business with an insurer. It is not inconceivable that any increased costs will find their way back to the policyholder.

It is unlikely in our view given the current climate that regulators will tone down their demands as they in turn continue to feel pressure from the political arena above.

ABI Practice Guidance On Selling Insurance Online
By Saman Salimi-Pour

The Association of British Insurers issued a good practice guide on 29 December 2009 in order to protect those purchasing insurance products online. It was deemed appropriate to do so as buying insurance online is on the increase. For example, approximately two thirds of motor insurance are now arranged online. The guidance has been issued for the attention of brokers, comparison websites and insurers, who sell products online. This will assist the consumers and ensure that they can buy insurance products suited to their needs. The guidance recommends that consumers need to be able to see and review the main features of the insurance products they wish to purchase. It should be obvious what the standard cover provided includes and which parts of it are add-ons. The applicable deductibles should be highlighted and made clear. If the insurance providers cannot provide a quote to their customers, they need to be referred to alternative sources, who for example specialise in providing particular insurance products.

Sousa v London Borough Of Waltham Forest
By Geoffrey Conlin

The claimant suffered a loss and made a claim upon his insurance policy. The insurer satisfied the claim and exercised its right of subrogation to compel the claimant to issue proceedings against the defendant. The insurer agreed to indemnify the claimant in respect of any liability to costs and the claimant instructed solicitors nominated by the insurer with whom the insurer had entered into a Collective Conditional Fee Arrangement (CFA).

The solicitors negotiated a settlement which included an agreement that the defendant would pay the claimant's costs. At assessment the claimant sought a success fee. The defendant contended that there should be no success fee, relying on the fact that the claimant had the benefit of full indemnity for his costs from the insurer and it was therefore unreasonable for the claimant to enter into a CFA.

The issue came before the District Judge who held, inter alia, that as the claimant was never at risk as to costs, it was unreasonable for him to rely on a Conditional Fee Arrangement. The decision was appealed and the appeal was allowed for the following principal reasons:

  • It would be anomalous if an insurer with an assigned cause of action (e.g. where there had been a provision for assignment in the policy) was able to take advantage of a CFA whereas an insurer with a subrogated claim cannot. The claimant had supported this argument on the basis that CFAs are open to everyone irrespective of their means (Campbell v MGN Ltd (No. 2) [2005] UKHL 61).
  • It is inherent in the concept of subrogation that the insurer is entitled to the advantage of every right of the insured.
  • There is no difference in principle between a trade union funding its members' personal injury action and an insurer pursuing a subrogated claim through its insured. The fact that in one case the member enjoys the fruits of the action and in the other they are held on trust for the insurer does not affect the position.
  • The absence of an express provision for a success fee in the policy does not affect the position that the insurer was entitled to dictate to the insured the terms of the Agreement between him and the solicitors. If those terms included a success fee, the claimant in effect had no choice but to enter into it.

One of the major recommendations contained in Lord Jackson's recently published Review of Civil Litigation Costs is that success fees should be borne by the client and not the opponent. If Lord Jackson's proposal becomes law, the principles set out in the Sousa case will not have wide application. However, for the time being, the case is relevant where an insurer exercising its right of subrogation requires the insured to instruct lawyers to seek recovery of the loss from a third party.

AC Ward v Catlin (5) Limited
By Luke Hacker

Thieves stole cigarettes and tobacco worth £450,000 from a caged area on the mezzanine floor of the insured's (AC Ward) warehouse. The theft happened outside of business hours. We previously reported on Catlin's, the insurer's, unsuccessful application for summary judgment to avoid liability for AC Ward's claim ( http://www.hfw.com/insurancereinsurance-bulletin-issue-14/) (www.hfw.com/insurancereinsurance-bulletin-issue-14/). In the main action Catlin succeeded, but on the grounds of non-disclosure or misrepresentation. Catlin resisted liability for three reasons:

  1. Alleged collusion of one or more of the insured's employees in the theft.
  2. Existing breach of two warranties concerning burglar alarm and protection maintenance.
  3. A variation to the policy removing "Endorsement 6" could be avoided for material non-disclosure or misrepresentation. (Endorsement 6 excluded cover for theft of cigarettes and tobacco outside of business hours, unless they were stored in a secure store on the warehouse's ground floor.)

Mr Justice Flaux held that Catlin had not proved collusion; it had not shown actual knowledge on the part of the employees.

Catlin also failed to show that AC Ward had breached the maintenance warranties, which included the important proviso that "all defects must be promptly remedied". For the breach to exist it would have to relate to measures in place at inception of the policy and to a fault which the insured was (or could reasonably be expected to be) aware of but failed to rectify. The insured had not been aware of the defects. The judge also suggested it is implicit in such maintenance warranties that provided the insured does what is required of it and promptly remedies the defect, it will not be in breach.

However, the judge found that AC Ward had misrepresented the true position of the security measures in place when the insurance policy was varied to remove Endorsement 6, which had induced underwriters to reach a different decision on the removal of the endorsement than they would otherwise have done. Accordingly, Endorsement 6 remained in place at the time of the theft and the claim was not covered.

The case is a reminder of the principles that the court will apply when interpreting warranties (as set out in Pratt v Aigaion [2008] EWCA Civ 1314 ( http://www.hfw.com/insurancereinsurance-bulletin-issue-06/) (www.hfw.com/insurancereinsurance-bulletin-issue-06/) In particular, that the court will construe a warranty to produce a reasonable and businesslike interpretation.

Crane v Hannover Re
By Saman Salimi-Pour

The claimant representing Lloyd's Syndicates wished to avoid excess of loss reinsurance retrocession treaties entered into with the defendants on grounds of non-disclosure and misrepresentation. The defendant had reinsured policies providing casualty insurance in America covering statutory liabilities and benefits under workers compensation schemes in various states (carve-out products). The claimant had underwritten a proportion of the two excess of loss treaties in 1998 and had written this type of business prior to this, hence, it was familiar with the workers compensation carve-out products.

The claimant alleged that the defendant had not disclosed its underwriting audits and had misrepresented/not disclosed material information regarding the underwriting practices in place. The claimant also alleged that there were misrepresentations as to the actual loss histories provided in order to calculate expected losses and the prescribed methodology of calculating expected losses.

The Court held that there was no misrepresentation or non-disclosure. The claimant could not avoid the disputed retrocession treaties as the renewal proposals required the insured to use actual loss histories, which did not make a representation about the future losses. As the proposals mentioned that the guidelines were to be updated from time to time, the claimants could not have been under the impression that the underlying business would not change. The insured's broker had also given the claimant details of the allocation method used. Upon receiving this information, the flexibility and methodology of the business written into the accounts would have been apparent. Following this, the claimant had shown no concern about the allocation criteria. Another indicative factor was that the claimant was willing to reinsure the business at reduced rates. The non-disclosed audit reports would not have on their own prevented the reinsurer from writing the business as the claim handling was assessed as average and would not have in principle affected the judgment of the prudent reinsurer. As far as the loss rating of the insured was in question, the renewal proposals did explain the insured's loss rating method.

Comment

Whilst this case largely turned on its own facts and the evidence before the Court, it shows practical steps that could have been taken by the claimant reinsurer to avoid these issues when entering into the contracts. The information provided in the proposals in effect puts the underwriters on notice of any issues that might be of concern to them. Prior to accepting the risks, the relevant queries need to be raised with the insured/ cedant. The Court also considered issues such as reduction of the rates and discounts given to determine whether the reinsurer had real concerns in writing the business in question. The case is also a classic example of the significance attached by the Court to the materiality of the information provided and its impact on the prudent underwriter's decision in accepting the risk, which is assessed objectively.

Reform Of Chinese Insurance Law
By Simon Sloane and JulianTheo

On 1 October 2009, the revised Insurance Law of the People's Republic of China ("PRC") came into effect. A summary of the major changes introduced by the new law is as follows:

1. Article 12 clarifies when an insured is required to have an insurable interest in the subject matter of the contract. In life insurance, the applicant must have an insurable interest at the time of the contract; regarding property insurance, the applicant must have an insurable interest at time of occurrence of the insured event.

2. The insurance contract is effective when the insurer accepts the applicant's insurance request. The old law was unclear in this respect.

3. Article 16 now states that insurers lose the right to rescind the insurance contract by reason of insured's non-disclosure if insurers do not exercise the right of rescission within 30 days after knowledge of the non-disclosure or more than two years have elapsed since acceptance by the insurer of the applicant's request for insurance.

4. Article 17 requires insurers to provide precise and clear explanations to the applicant of the contract terms either orally or in writing, failing which these clauses shall have no effect.

5. Dealing with the claims process the following provisions are noteworthy:

  • Article 22 requires the insurers to notify the insured of all other additional documentation to be provided in a timely fashion if it considers that the documents and materials submitted by the insured are insufficient.
  • Article 23 requires insurers to make a timely decision on whether to accept the claim and must notify their decision to the insured in a timely fashion. In complicated cases, insurers must make a decision within 30 days.
  • If insurers determine there is no coverage, they must notify the insured within three days of their decision, in writing with reasons (Article 22, Article 23, Article 24).

6. When the insured subject matter is assigned and the assignment increases the risk of the insured subject matter, insurers may within 30 days of receipt of the notification of such assignment, rescind the contract or demand increased premium from the insured (Article 49).

7. In respect of liability insurance, when the insured causes loss or damage to third party, the insurer shall indemnify the third party directly at the request of either the insured or the third party (Article 65).

8. Importantly, the new law deleted Article 103 of the previous law, requiring priority on outward reinsurance business to be given to PRC-based insurance companies.

Scottish Lion Appeal Decision - Road Block To Schemes Of Arrangement Dismantled
By Richard Baines

On 29 January 2010, after an appeal hearing lasting four days, The Inner House of the Scottish Court of Session unanimously overturned the first instance judgment of Lord Glennie in The Scottish Lion Insurance Company v Goodrich Corporation and others. In October 2009, Lord Glennie dismissed the petition held at the earlier direction of the court for the sanction of a solvent scheme of arrangement in relation to Scottish Lion which had been approved by resolutions of a majority, in number representing 75% majority by value, of Scottish Lion's creditors at each of two separate creditors meetings (one for non-IBNR creditors and one IBNR creditors). Lord Glennie's judgment was seen as a blow to the prospects of implementing future solvent schemes of arrangement.

Scottish Lion had been in run-off since 1994, and proposed a solvent scheme of arrangement in accordance with the procedure laid down in the Companies Act. Under the proposed scheme all policyholders would be paid in full within a relatively short time-frame based on actuarial estimates of their claims. The two statutory meetings of creditors were held at which the necessary statutory majorities of creditors approved the scheme. Subsequently, the company applied to the Scottish Court seeking its sanction under the Companies Act procedure in order to make the scheme binding on all creditors of Scottish Lion. On that application the judge, Lord Glennie, said he did not see why the Court should sanction a scheme of arrangement for a solvent company unless the creditors voted unanimously in favour of scheme. In reaching their judgment on the appeal against Lord Glennie's decision, their Lordships confirmed that solvent schemes of arrangement should in principle be treated in the same manner as insolvent schemes when it comes to sanction.

The scheme for which sanction was sought included a proposal that the Company's creditors, including its contingent creditors in respect of IBNR claims, would be entitled to receive immediately certain sums based on a scheme of valuation, the payment of which would discharge their contingent claims. The respondents opposing the petition to sanction the scheme wanted to retain their existing contractual rights under their policies. Their Lordships considered the opposing creditors' arguments including those based on observations made by an English judge in the British Aviation Insurance case, but decided that the proposal in the Scottish Lion scheme was not so unreasonable that the Court should refuse to sanction it. In particular, their Lordships indicated that the loss of a policyholder's contractual rights in a solvent scheme of arrangement is not a reason to prevent a solvent scheme being sanctioned in circumstances where the statutory majority of creditors voted in favour of the scheme. The Scottish Lion scheme has yet to be sanctioned as there are still detailed objections to be dealt with by the court.

Insurers To Appeal Scottish Pleural Plaques Decision
By Luke Hacker

Pleural plaques is a symptomless fibrous thickening of the pleural membrane caused by exposure to asbestos. In Rothwell [2007] UKHL 39, the House of Lords decided that claimants could not claim damages for pleural plaques, thereby ending the twenty five year-old practice of compensating sufferers of pleural plaques. ( http://www.hfw.com/insurancereinsurance-bulletin-issue-03/) (www.hfw.com/insurancereinsurance-bulletin-issue-03/)

In June 2009, the Scottish Parliament responded by passing the Damages (Asbestos Related Conditions) (Scotland) Act 2009, to make pleural plaques a compensatable condition in Scotland; i.e. reversing the Lords' decision. On 8 January the Court of Session in Edinburgh rejected challenges by four major insurers' to the Scottish Act by way of judicial review. Although insurers successfully argued that the Scottish Parliament's legislation could be judicially reviewed (which would probably not be the case if Westminster had passed primary legislation), the judge held that insurers could not establish that the Act was "manifestly absurd" so as to invalidate it. The insurers have lodged an appeal against the decision.

News: Middle East developments

HFW, now with 11 international offices including Sydney which opened in December 2009, has increased its ability to service the Middle Eastern markets with a number of key developments in the region.

The firm is pleased to announce the recruitment of former Ince & Co lawyer, Paul Suckling, who joins its Dubai office as a construction litigation partner. In addition, the firm has formalised two 'best friends' associations with firms elsewhere in the region: Allazzam Law Office in Saudi Arabia and Salem Al Maddfa Advocates & Legal Consultants in Abu Dhabi.

These developments aim to enhance the firm's long term strategy in the region across the core areas of its practice including insurance & reinsurance. The Middle East continues to be an important market in the long term, due to its position as a conduit between East and West for international commerce and these developments will help us continue to grow and service our clients appropriately.

News: Insurance Day article

Costas Frangeskides and Rupert Warren have had an article published in Insurance Day (5 February 2010, pg 7). The article focuses on differences between UK and US approaches to Re/ Insurance arbitration.

Conferences and Events

Contractual Liabilities and Indemnities Marsh's National Oil Companies Conference, Dubai (22-24 February 2010) Paul Wordley

Lillehammer Energy Claims Conference Quality Hotel Hafjell, Oyer, near Lillehammer in Norway (24-26 February 2010) Nigel Wick, Roger Balson and Toby Stephens

D&O Liability Insurance Forum Crowne Plaza, London - The City (16-17 March 2010) Costas Frangeskides

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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