Grasping the Nettle on International Risks
Recent decisions of the English courts show enthusiasm for boldly tackling the largest and most complex cases, including those involving international risks, with significant implications for commercial policyholders.
In Municipao de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951, the Court of Appeal has allowed claims to proceed against the Anglo-Australian mining company BHP in respect of losses caused by the Fundão Dam collapse in 2015, overturning the first instance decision to strike out the case as an abuse of process. Millions of tonnes of toxic mining waste were released along the Doce River resulting in mass claims from individuals, businesses and municipalities seeking at least £5 billion in damages. Over 200,000 claimants can now seek redress through the English legal system in respect of Brazil’s worst ever environmental disaster.
The High Court previously concluded that the case would be “irredeemably unmanageable” and “akin to trying to build a house of cards in a wind tunnel”, in view of concurrent claims and compensation schemes in Brazil. The Court of Appeal disagreed, noting that case management complexity could not of itself justify a finding of abuse, and there was a real risk that full redress could not otherwise be obtained. In a striking statement of the English courts’ approach, their Lordships observed (at paragraph 211):
“In principle, claimants are entitled to choose whom to sue. There may be diverse and legitimate reasons why a claimant may choose to sue a particular defendant or defendants and it is not part of the court’s function to interfere with that process. … A claimant’s unhindered right of access to justice in respect of properly arguable claims is a core constitutional right inherent in the rule of law.”
In Al Mana Lifestyle Trading LLC & others v United Fidelity Insurance Co PSC & others [2022] EWHC 2049, the Commercial Court decided that an ambiguously worded jurisdiction clause allowed COVID-19 business interruption insurance claims to be brought in the English courts, having regard to the good commercial sense of facilitating resolution of disputes through a single neutral venue with extensive insurance law expertise.
The claimants operate in the food, beverage and retail sectors and sought recovery of around $40 million pandemic related losses under multi-risk insurance policies issued in the Middle East. The defendant insurers, located in the UAE, Qatar and Kuwait, challenged the English court’s jurisdiction, with reference to the following policy provision:
APPLICABLE LAW AND JURISDICTION
In accordance with the jurisdiction, local laws and practices of the country in which the policy is issued. Otherwise England and Wales UK Jurisdiction shall be applied.
Under liability jurisdiction will be extended to worldwide excluding USA and Canada.
This was construed as a non-exclusive jurisdiction clause allowing proceedings to be issued either in the UK or the country where the policy was issued. Reference was made to the relevant factual matrix in reaching this decision, including the policies having been issued as part of a suite of insurances intended to provide comprehensive cover for group operations in numerous jurisdictions and reinsured in the international market. The option for policy disputes to be determined in one place was advantageous and presumed to accord with the parties’ intentions, with the English courts being: “particularly well-versed in the issues relating to claims for indemnity for Covid-related business interruption losses [and] highly experienced in dealing with issues of foreign law, where they arise.”
The English legal system’s independence and flexibility inspire business confidence, underpinning international trade and investment. As one of the leading financial, (re)insurance and commercial centres in the world, the UK offers unrivalled access to high quality legal services, and specialty underwriting through Lloyd’s of London. These factors are important for multi-national businesses considering a choice of jurisdiction, as well as potential claimants affected by the actions of their foreign subsidiaries. The UK courts remain at the forefront of jurisprudence on recovery of pandemic related losses, alongside growing trends for human rights and environmental litigation.
Amy Lacey is a Partner at Fenchurch Law
Fenchurch Law boosts insurance disputes team with double hire
Fenchurch Law, the UK’s leading firm working exclusively for policyholders and brokers on complex insurance disputes, has announced the expansion of its team with two new appointments to its Leeds office; Catrin Wyn Williams and Chloe Vine.
Catrin Wyn Williams joins as an Associate Solicitor, bringing with her experience of representing insurers in a variety of areas includingProperty Damage and Professional Indemnity. Catrin was previously a solicitor at BLM, and experience of working in house at Hiscox
Chloe Vine joins as a Trainee Solicitor from a nationwide insurance broker, where she was the Group Claims Technical Manager. Chloe has experience handling all aspects of insurance claims, including taking the lead in relation to coverage disputes.
The new appointments will bolster the business’ team in Leeds, which was set up to support the insurance broking community in the North of England, and their policyholders.
Daniel Robin, Senior Associate and Head of Leeds Office commented:
“In a short space of time we have built the leading policyholder practice in the North of England, providing the same high quality specialist services as our colleagues in our City office. Catrin and Chloe come from different professional backgrounds, but both bring with them an excellent combination of insurance and legal knowledge that will be invaluable in our mission to level the playing field for policyholders.”
Catrin Wyn Williams added:
“Fenchurch Law impressed me from the outset; not only for their commitment to assisting policyholders in challenging coverage disputes, but also for their progressive and unique values. For me, this set Fenchurch Law apart from other law firms.”
Chloe Vine concluded: “I was attracted to Fenchurch Law for their policyholder-focused approach. Having worked for insurance brokers’ previously, this company mission really resonated with my own ambition to better equip policyholders in disputes with insurers.”
Co-Insurance, it’s a bit of a scrum
The Rugby Football Union v Clark Smith Partnership Limited & FM Conway Limited [2022] EWHC 956 (TCC)
This recent High Court decision once again shines a light on the tricky issue of co-insurance under project CAR policies, in particular the difficulties faced by contractors of all levels when trying to demonstrate the extent of cover in the face of a subrogated claim from project insurers.
It’s the most noteworthy judgment on the issues since Haberdashers’ Aske’s Federation Trust in 2018 (which, as we’ve stated previously, is a bad decision for policyholders), and is a helpful refresh of the issues, if only to remind parties to construction projects to ensure that the contractual arrangements for any project accurately reflect the intention and authority of the party obtaining insurance cover for others.
Background
The Rugby Football Union (“RFU”) was undertaking significant works at Twickenham in 2012 in order to prepare for the 2015 Rugby World Cup. It engaged Clark Smith Partnership Limited (“Clark Smith”) to design buried ductwork which was to contain power cables, and FM Conway Limited (“Conway”) to install it. RFU and Conway contracted on the basis of a JCT Standard Building Contract without Quantities 2011 (“the JCT”), some of which (but importantly not all) was the subject of agreed amendments.
RFU asserted that the ductwork was defective which caused damage to the cables as they were pulled through (by a third party), which resulted in replacement costs of £3,334,405.26, for which it was indemnified by the project insurers, Royal & Sun Alliance Plc (“RSA”).
The project policy contained a DE3 standard form defects exclusion, which meant that the cost of addressing the defective ductwork was excluded, but the remedial cost of the consequential damage to the cables was covered.
RSA sought to recover those sums from Conway (and Clark Smith) in a subrogated recovery action on the basis that the damage had been caused by its defective workmanship. In response, Conway issued Part 8 proceedings seeking a declaration that it was a co-insured under the project policy and that it had the benefit of cover to the same extent as RFU (as principal insured), which prevented RSA from bringing the subrogated claim against it.
Issues
In relation to the claim brought by RSA (in relation to which it stood in RFU’s shoes), Mr Justice Eyre was asked to consider whether the sums paid by RSA to RFU were irrecoverable because RSA could not exercise subrogation rights and/ or on a proper analysis of the project policy and/ or the contract documents that RFU and/ or RSA were not entitled to claim the insured losses.
The judgment contains a very useful summary of the law regarding co-insurance to date, including the basis on which subrogated claims between parties to an insurance policy can be barred by reason of circuity of action (Co-operative Retail Services Ltd [2002] UKHL 17) and the basis on which one insured may obtain cover for another (Gard Marine & Energy Ltd [2017] UKSC 35). However, the key aspect here was not the existence of cover in the first place, but the extent of that cover for a co-insured.
The specific consideration here was whether Conway had the benefit of the full cover under the project policy, which provided cover for damage to other property insured caused by Conway’s defective works, or whether its cover was restricted to damage caused by Specified Perils as provided for by the unamended part of the JCT.
Mr Justice Eyre was at pains to stress (guided by the above authorities, but also National Oilwell (UK) Ltd [1993] 2 Lloyd’s Rep 582) that the contract is key when determining the intention and authority of the principal insured when securing cover, stating:
“74. What is important is that the authorities are clear that in order to determine whether the insurance cover which a policy effected by, in my example, the employer or contractor applies to the contractor or sub-contractor and if to what extent (with the latter point determining the extent to which they are co-insured) it is necessary to look to the terms of the contract between those parties. It is those terms which provide the key to the existence and extent of the insurance cover.”
“88. … when a person becomes a party as a consequence of the actions of another person then the terms of the contract between the insured party and that other govern the extent of the insurance”
In relation to the intention and authority of RFU, Mr Justice Eyre found (despite witness evidence to the contrary relied on by Conway, that the insurance obtained by RFU was intended to be more extensive than envisaged by the JCT), that the contract documents read together (including the JCT) did not demonstrate an intention for the project policy to create a fund which would be the sole remedy for loss suffered by RFU as a consequence of a breach by Conway.
Whilst Conway was an insured under the project policy, the extent of that cover was that as envisaged in the JCT and no wider, such that it was not a co-insured in relation to the damage for which RSA had indemnified RFU. He went on to find (again consistent with National Oilwell) that the waiver of subrogation clause in the policy only related to the matters for which Conway had cover under the policy, and so didn’t prevent a claim by RSA.
Comment
This judgment doesn’t alter the previous state of the law in this area, but is a salutary reminder to make sure that the contractual documents are in line with the expectations of the parties.
Mr Justice Eyre indicated that “compelling evidence to counter the inferences from the natural reading” of the JCT may have altered the result (which is in line with the “other admissible material” referred to in National Oilwell), but that evidence was not present here. Rather, the judge found it “surprising” that the JCT was subject to amendment elsewhere, but not in relation to the insurance for the works. If the parties had intended the extent of cover to be different from that envisaged by the unamended JCT, then presumably it would have been simple enough to reflect that in an amended version of the JCT. The absence of those amendments seems to have been an important consideration in relation to the parties’ intentions.
If there’s an intention for members of the project team to have a benefit under any project policy, it is vital that the underlying contractual documents accurately reflect the full extent of the principal insured’s intention and authority in that regard.
Rob Goodship is a Senior Associate at Fenchurch Law
Reinstatement 101 – (rein)stating the obvious?
Reinstatement can be a difficult issue for a policyholder to navigate in the wake of a loss.
The answers to what might seem like obvious questions such as: what is it? who does it? and, do the costs actually have to be incurred? are in actual fact far from straightforward, and have been the subject matter of a number of legal cases in recent years.
This short article summarises some of the key principles that are involved.
What is it?
Reinstatement is the repair or replacement of property so that it is in the same condition or a materially equivalent condition to that which it was in prior to the loss occurring.
Of itself that seems clear enough. However, as ever the devil is in the detail, and the wording of reinstatement clauses varies from policy to policy with very different outcomes for the policyholder.
For example, depending on the precise wording, the policyholder may or may not be entitled to a cash settlement, may or may not be required to rebuild, and may or may not have to rebuild on the same site. Also, many policies give the insurer the option to reinstate.
Who does it?
As might be expected, more often than not the policyholder reinstates. However, many policies give the insurer the option to reinstate at its election. Why might an insurer choose to do so?
There are several reasons why an insurer might elect to reinstate, rather than have the policyholder reinstate or pay them an amount equivalent to the cost of reinstatement. Certainly, one reason identified by the courts is to avoid what other might be “the temptation to an ill-minded owner to set fire to the building in order to pocket the insurance money” (Reynolds v Phoenix Assurance Co Ltd [1978] 2 Lloyd’s Rep 440).
If an insurer elects to reinstate, it must give unequivocal notice to the insured, whether expressly or by conduct. Following a valid election to reinstate, the policy is no longer treated as one under which payment is to be made, and instead stands as if it had been a contract to reinstate in the first place. The consequence of this is that if the insurer fails to perform the contract adequately, it will be liable to the policyholder for damages.
Do the works have to take place?
Whether, and if so, when the reinstatement works have to be carried out, or whether the policyholder is entitled to an indemnity for what the works would cost if carried out, is again going to turn on the precise wording of the policy.
The starting position is as set out in the following extract from the judgment in Endurance Corporate Capital Ltd v Sartex Quilts & Textiles Ltd ([2020] EWCA Civ 308):
“How the claimant chooses to spend the damages and whether it actually attempts to put itself in the same position as if the breach had not occurred – for example by reinstating lost, damaged or defective property – or whether the claimant does something else with the money, is – in accordance with the general principle mentioned earlier – irrelevant to the measure of compensation.”
Therefore, subject to any contrary wording in the policy, a policyholder is entitled to recover the cost of repairing their property, regardless of whether they in fact carry out such repairs, but instead decide, for example, to sell their property or to use the money to build elsewhere on site.
Insurers often look to limit that entitlement, and reinstatement clauses often provide that the work must be commenced and carried out “with reasonable despatch”, and that “no payment is to be made until the costs of reinstatement have actually been incurred”. This presents something of a chicken and egg situation for insureds, since an impecunious policyholder will not have the funds available to pay for reinstatement without first receiving the costs of reinstatement from the insurer.
In Manchikalapati & Others v Zurich [2019] EWCA CIV 2163, the insurer contended that where the policy provided an indemnity for “the reasonable cost of rectifying or repairing damage …”, the term “reasonable cost” should be read as meaning “actual” or “incurred” costs. Therefore, because that cost had not yet been incurred, the insurer argued that its liability under the policy had not been triggered. The court rejected that argument, finding that there was nothing about the wording which indicated that the cost must be incurred before the policyholder was entitled to an indemnity.
An insurer can limit its liability to costs actually incurred, provided it uses clear language to that effect. However, absent clear language, or where the clause is neutral as to whether the cost must already be incurred or may be incurred in the future, the courts have made it clear that insurers are no longer able to able to withhold the indemnity pending the works being carried out.
To what extent are intentions relevant?
One thorny issue that has come up time and again in the context of reinstatement is the relevance of a policyholder’s intentions. This first arose in a case where the policyholder intended to sell the property at the time of the fire. In that case, the court found that the indemnity to which the policyholder was entitled was the price at which it was prepared to sell at the time of the fire. This is because a policyholder is entitled to be indemnified for its loss, and in quantifying that loss, an insured’s intentions may impact on an assessment of the value of the property to them.
This issue most recently came before the court in Endurance v Sartex [2020] EWCA Civ 308. The insured, Sartex, claimed an indemnity on the reinstatement basis following a fire at its premises. The insurers asserted that that this was inappropriate because Sartex did not have a genuine intention to reinstate, placing reliance on the fact that Sartex had not carried out reinstatement in the many years after the fire occurred. As such, the insurer said that Sartex was only entitled to the considerably lower sums representing the diminution in market value of the property as a result of the fire. The court found that the question of whether Sartex actually intended to reinstate the buildings was, in most cases, of no relevance to the measure of indemnity.
Standard of repair
Another issue that frequently arises, particularly in the context of older properties, is what happens when the reinstatement results in the property being in a condition better than it was before. This is known as betterment. The principle of betterment requires the policyholder to account to the insurer for the improved or better aspects of the new property.
Sometimes, a policyholder has no practical alternative but to replace the original property with modern, upgraded property. This is known as involuntary betterment, and in those circumstances the policyholder is entitled to the actual replacement cost.
If an insurer does look to apply a discount for betterment, a policyholder would be advised to require the insurer to identify precisely what betterment the policyholder would enjoy and to serve evidence in support, as where an insurer fails to adequality quantify and evidence its case on betterment, no deduction should be applied.
Summary
Reinstatement clauses are intended to place policyholders into a materially equivalent position to that which they would have been in had the loss not occurred. Quite how that works in practice can be a minefield, but recent case law has helpfully cleared up some misconceptions around the policyholder’s intentions and the extent to which the works have to be carried out – both of which will be of assistance to policyholders in getting their claims paid.
Alex Rosenfield is a Senior Associate at Fenchurch Law
Better late than never: the first reported case on damages for late payment
Quadra Commodities S.A v XL Insurance Co SE and Others
Ever since the Enterprise Act 2016 ushered in the ability of insureds to claim damages against their insurers for the late payment of insurance claims, the sector has been waiting to see how this legislation would play out in practice, and in particular what would constitute a ‘reasonable’ time for paying claims.
That wait is finally over.
Background
The policyholder, Quadra Commodities, specialised in the trade of agricultural commodities including grains, oil seeds and vegetable oils. In 2019, a fraud now known as the ‘Agroinvestgroup Fraud’ unravelled and revealed that Agroinvestgroup, a loosely associated group of companies involved in the production, storage and processing of agricultural products, had defrauded the policyholder.
A claim was notified under the policyholder’s marine cargo open cover insurance policy in February 2019. The insurer denied all liability for a variety of reasons, including that the policyholder had no insurable interest, and that the loss was purely financial with no loss of physical property (for which the insurer maintained the policyholder was not insured).
Section 13A of the Insurance Act 2015 (“the Act”)
While the details of this claim are well worth a read (see here for the full judgment) interest in the case has focused on the claim for damages pursuant to s.13A of the Act (a copy of the wording of s.13A can be found here).
As a primary point the Court was clear that the issue of what was a “reasonable time” in which the claim should have been paid must be considered separately to the Defendants’ case as to whether there were reasonable grounds for disputing the claim.
The onus is on the insured to show payment was made after the “reasonable time” within which the insurer should have paid sums due in respect of the claim: whereas the insurer carries the burden of proof for showing that there were reasonable grounds for disputing the claim.
In considering the question of what was a “reasonable time”, the Court considered that the fact that the Defendants’ actual conduct of the claims handling could be said to have been too slow or lethargic, was not of itself an answer. The Court looked to the non-exhaustive list of factors referred to in s. 13A (3) of the Act and the accompanying Explanatory Notes (all the while attempting to keep separate the question of whether or not there were reasonable grounds for disputing the claim).
The Court concluded that, given the nature and complicating circumstances of the claim, including the origins of the claim in the Agroinvestgroup Fraud and the destruction of documents, the reasonable time in which the claim should have been paid was not more than about a year from the notice of loss.
The one-year period would have been a reasonable time for the insurer to investigate and evaluate the claim, and then pay it. However, this was predicated on the assumption that there were no reasonable grounds for disputing the claim or part of it.
Turning then to whether or not there were reasonable grounds for disputing the claim the fact that the Court may ultimately find that those grounds were wrong did not automatically infer that those grounds were unreasonable. On the facts, the Court agreed that in the circumstances there were reasonable grounds for reaching that conclusion.
Ultimately, while it could be said that the way in which the Defendants conducted their investigations was too slow, as this aspect of their conduct occurred within a period throughout which there were reasonable grounds for disputing the claim there was no breach of the s.13A implied term.
Conclusion
While the policyholder was successful in its claim for an indemnity, it was not successful in its argument relating to s.13A of the Act.
Any s.13A claim will be highly fact specific, but in circumstances where there are fairly significant complicating factors, a “reasonable time” of no more than a year to investigate, evaluate and pay a claim (which is not a lot of time in the grand scheme of a complex loss) appears to be a positive decision for policyholders. Large losses can be unpalatable for insurers, but they may now think twice before delaying investigations in order to test a policyholder’s resolve, especially in circumstances where ultimately there are no reasonable grounds to dispute the claim.
Anthony McGeough is a Senior Associate at Fenchurch Law
Recent developments in the W&I sector: Q&A with Howden M&A's Head of Claims, Anna Robinson
Hot on the heels of the release by Howden of its annual M&A Insurance Claims Report we caught up with their Head of Claims, Anna Robinson, to find out about trends across the sector in 2020/2021 and her predictions for 2022.
A copy of the full report can be accessed here.
Q: Despite the turmoil of the pandemic, we understand that M&A transactions continue to increase as companies use mergers and acquisitions to grow. Is this increase in deal-making, and increase in the use of M&A insurance, starting to lead to an increase in claims activity?
A: Yes on both counts. Following a significant drop in deal activity at the start of the pandemic, there was a phenomenal and unprecedented increase in deal activity from Q3 2020 onwards and throughout 2021. The same period saw an exponential increase in the use of M&A insurance, and a corresponding increase in the number of notifications. Although the number of notifications in percentage terms has fallen since 2019, the absolute number of notifications has risen, which is a factor both of the increase in use of M&A insurance and the increase in Howden M&A’s market share.
Q: Has Covid had the impact on M&A claim notifications that was envisaged by the insurance industry? Do you expect any COVID-19-related claims trends to emerge in the future?
A: Interestingly the predicted spike in notifications did not materialise. With hindsight, in some ways that is not surprising as the deals done, and associated policies placed, following the emergence of COVID-19 would either have diligenced COVID-19 or excluded claims arising out of it.
Q3: Has there been an impact on when claim notifications are made against the policy i.e. are claims now notified earlier following inception or later?
A: Our research indicates that notifications are being made later. For notifications received from 2015 to 2019, 90% were made within 18 months of the policy’s inception. In 2020/2021 the proportion of later notifications, made after 18 months, rose significantly. There are two potential reasons for this – the first is that longer warranty periods are available, and the other is the increase in tax claims which, of course, have longer notification periods reflecting the time it can take for these to materialise.
Q4. Has there been a change in the claim values being discovered and notified under the policy?
A: It is the larger deals, and in particular the mega-deals (above €1 billion EV) that have a higher notification rate, and which rate increased again in 2021. These large and complex deals are both more difficult to diligence and often conducted at a fast pace meaning issues can be missed.
Q5. What’s the most common cause for claims and are there any emerging trends? Are there any sector trends for claims notifications?
A: The top three most commonly breached warranties that we see are: Material Contract warranties, for example where a known issue with a supply contract wasn’t disclosed; Financial Statement warranties, reflecting errors in the financial statements; and Compliance with Law warranties, where relevant legislation has not been complied with. This latter type of breach is something that arises commonly in relation to real estate deals where planning, environmental and safety laws are not complied with. While Tax warranties have historically been one of the most common breaches, it still takes up a large portion of notifications received at 17.8%. Taken together these four amount to just over three quarters of all notifications.
Q6. Has the percentage of notifications turning into paid claims changed?
A: The data shows that three-quarters of claims were resolved positively, which is a slight reduction from the previous period but is explained, in part, by the increase in precautionary notifications.
Q7. What would be your top tips for policyholders in getting their claims paid?
A: Good question! Notify early and in accordance with the policy provisions; particularise each element of the warranty breach and provide robust supporting evidence; keep the insurer updated and provide them with the documentation they need to investigate the claim, and, perhaps most importantly, make sure you can evidence the impact of the breach on the purchase price. Also, involve your broker as their relationship with the claims handler can be key to ensuring a smooth claims process.
Q8. What role does Howden M&A play in getting claims paid, can you give an example?
A: We provide assistance with the claims process as a W&I claim is often the first time an insured has dealt with an insurer in this context. We also assist clients with policy interpretation and quantum issues – quantum is typically the most complex part of a W&I claim. As brokers, we are able to deal directly with the insurers, and we can negotiate outcomes based on commercial as well as legal imperatives.
Q9. What role do coverage specialists, like Fenchurch Law have to play in the claims process?
A: Where a case turns on a point of law or policy interpretation, and the insurer/insured have reached stalemate and commercial negotiation has not assisted (which is rare!), it is vital for us, and our clients, to be able to have specialist advisers to call in that situation. Knowing that Fenchurch Law offer a free preliminary advice service is very reassuring!
Q10. Finally, what are your predictions for the coming year?
A: We predict a tidal wave of notifications in the coming year, reflecting the phenomenal increase in policies placed in 2020 and 2021. In similar vein, given the increasing number and size of the deals on which we advised in 2021 we anticipate that claim size and complexity will increase. In line with the trend for more policies (title and tax in particular) to include cover for ‘known issues’, we anticipate that notifications and claims arising under these policies will increase. Watch this space!
Even a Solicitors’ PI policy has its limits - Doorway Capital Limited v AIG
In this recent decision, the High Court considered whether a liability incurred by a solicitor under a factoring agreement was covered by its professional indemnity policy.
Background
In 2016, Doorway Capital Limited (“Doorway”) entered into a Receivable Funding Agreement (“the Agreement”) with Seth Lovis & Co Solicitors Ltd (“the Solicitors”). The relevant terms of the agreement were as follows:
- Doorway would provide funding to the Solicitors for use as working capital and to repay certain of their debts.
- The Solicitors would sell to Doorway its “Receivables” i.e., the Solicitors’ trading debts, together with the right to pursue those debts.
- the Solicitors would be appointed as Doorway’s agents to collect the Receivables.
- On receipt, the Solicitors would hold the Receivables in their client account on trust for Doorway, before paying the sums over to Doorway’s nominated account.
Doorway claimed that the Solicitors collected c. £2m worth of Receivables between 2017 and 2018 but in breach of the Agreement, only paid over a small portion of them. Doorway also asserted that the Solicitors breached fiduciary duties owed to Doorway.
As the Solicitors had entered into administration, Doorway claimed directly against the Solicitors’ professional indemnity insurers, AIG, under the Third Parties (Rights Against Insurers) Act 2010.
The Application
AIG applied for summary judgment, arguing that Doorway’s claim had no prospects of success. For the purposes of the application, AIG did not dispute that the Solicitors had breached the Agreement nor that they had breached fiduciary duties owed to Doorway.
There were two principal issues for the Court to decide:
- Did the liability that the Solicitors incurred to Doorway fall within the insuring clause of the policy (“the Policy”)?
- If so, did the ‘Debts and Trading Liabilities’ exclusion (“the Exclusion”) nevertheless apply?
The insuring clause
The insuring clause indemnified the Solicitors against “… civil liability to the extent that it arises from Private Legal Practice in connection with the Firm’s Practice.”
“Private Legal Practice” was defined as meaning “the provision of services in Private Practice as a solicitor … including, without limitation … (c) any Insured acting as a personal representative, trustee, attorney, notary, insolvency practitioner, or in any other role in conjunction with a Practice.
Doorway argued that the Solicitors’ services fell within the definition of “Private Legal Practice.” In particular, it said that acting as a trustee, without more, was sufficient. It also argued that (i) the Solicitors exercised “professional judgment in relation to the assessment of obligations which would arise in the course of the solicitor’s practice”, because they were required to determine whether, as a matter of law, a Receivable was payable to Doorway; and (ii) the holding of monies in their client account showed that they were providing a service in private practice.
The Judge, Mr Justice Butcher, paid short shrift to Doorway’s arguments. Any liabilities that the Solicitors owed to Doorway derived from Agreement alone; the fact that the Solicitors were holding monies on trust was merely “a part of the mechanism” of fulfilling their obligations under the Agreement. The Judge came to the same conclusion in respect of the Solicitors’ use of “legal judgment” to recover the Receivables, as well as the use of their client account – neither were for the provision of services in private practice as a solicitor.
In the circumstances, the liabilities incurred by the Solicitors did not arise from Private Legal practice, and were therefore not covered by the insuring clause. Accordingly, AIG’s application for summary judgment succeeded.
The Exclusion
Although it was not necessary for the Judge to decide this given his findings on the insuring clause, the Judge nevertheless also expressed a view on the applicability of the Exclusion.
The Exclusion stated: “The Insurer will have no liability to indemnify an insured in relation to any … legal liability assumed or accepted by an Insured under any contract or agreement for the supply to, or use by, the Insured of goods or services in the course of the Insured Firm’s Practice.”
In considering this issue, the Judge referred to the Supreme Court decision in Impact Funding Solutions Limited v AIG Europe Insurance Ltd [2016] UKSC 57. As with the present case, Impact Funding concerned a commercial agreement between a firm of solicitors and a third-party funder, and required to court to decide whether services conducted in connection with that agreement were covered (or, in the circumstances, excluded) under the solicitor’s PI policy. The policy contained an exclusion for “breach by any Insured of terms of any contract or arrangement for the supply to, or use by, any Insured of goods or services in the course of providing legal services.” By a majority of 4 to 1, the Supreme Court found that the exclusion applied. Of particular relevance, Lord Toulson said that the commercial agreement “did not resemble a solicitor’s professional undertaking as ordinarily understood, and it falls aptly within the description of a “trading liability” which the minimum terms were not intended to cover.”
Therefore, by analogy with Impact Funding, the liability incurred by the Solicitors to Doorway was not the type of liability which would be covered by a solicitors’ PI policy. Therefore, had he been required to do so, the Judge would have found that the Exclusion applied.
Conclusion
The case is confirmation that not every service provided by a solicitor will be covered by its professional indemnity policy. In any case, one has to look at the substance of the service being provided; merely acting as a trustee or using a client account, for example, will not necessarily be enough.
As to the Exclusion, although the Judge’s comments were obiter, it is difficult to see how the issue could have been decided any other way in light of Impact Funding. As with that case, the meaning and effect of the Exclusion were clear, and the Judge had no doubt that it applied.
Alex Rosenfield is a Senior Associate at Fenchurch Law
Covid-19 BI Update: Access Granted to Corbin & King and Deduction of Furlough from Claims
“… the decision of the Supreme Court has moved the goalposts and the argument which has emerged is materially different.”
Mrs Justice Cockerill, Corbin & King v Axa [2022] EWHC 409 (Comm)
Two further policyholder-friendly judgments last week continued the trend of extending the scope of coverage available for Covid-19 BI losses under non-damage extensions. This time the focus falls on (i) prevention of access wordings; (ii) aggregation of losses at multiple premises; and (iii) deduction of furlough and other government support payments.
1. Prevention of Access – Access Granted!
In our September 2021 Update ‘‘Denial of Access – Access Granted", we set out Lord Mance’s reasoning in the China Taiping Arbitration, noting that it set out a clear pathway to coverage for policyholders with Prevention of Access and similar wordings, whose claims had been declined following the Divisional Court judgment in the FCA test case.
In a judgment handed down on Friday in Corbin & King v Axa, Mrs Justice Cockerill endorsed that approach and signalled a wholesale reversal of the coverage position under such wordings.
Recap
The FCA test case examined coverage under a number of non-damage Prevention of Access or Denial of Access clauses. At first instance, the Divisional Court found that the majority of such clauses provided a “narrow, localised form of cover” which did not respond to the broader circumstances of the pandemic. The basis for this conclusion was encapsulated at paragraph 467 of the Divisional Court judgment (repeated in similar terms elsewhere in relation to different wordings):
“There could only be cover under this wording if the insured could also demonstrate that it was an emergency by reason of COVID-19 in the vicinity, in that sense of the neighbourhood, of the insured premises, as opposed to the country as a whole, which led to the actions or advice of the government. […] it is highly unlikely that that could be demonstrated in any particular case[3].”
Many policyholders were disappointed at the FCA’s decision not to appeal that aspect of the Divisional Court judgment, and have subsequently argued that the Supreme Court’s ultimate conclusions on causation rendered the Divisional Court’s ruling an unsound authority for declining coverage under such clauses.
The China Taiping Arbitration
The point was subsequently argued on behalf of policyholders in the China Taiping Arbitration, decided by Lord Mance in a published award. Although the China Taiping policyholders’ claim ultimately fell down on the issue of whether the UK government was a ‘competent local authority’ within the meaning of the clause, on the key issue of whether the Covid-19 pandemic was capable of triggering coverage under a clause requiring, “an emergency likely to endanger life or property in the vicinity of the Premises” Lord Mance agreed with the policyholders that the position was indeed altered by the Supreme Court judgment in the test case.
In Lord Mance’s words:
“I therefore doubt whether the Divisional Court could or would have approached the matter as it did in paragraphs 466 and 467 had it had the benefit of the Supreme Court’s analysis.”
The door was therefore left wide open for the point to be fully argued before the Courts, which it duly was by Corbin & King in their case against Axa.
Corbin & King v Axa
In Corbin & King, the policyholders sought coverage for their BI losses flowing from closure and other restrictions places on eight insured restaurants, under a Non-Damage Denial of Access (NDDOA) clause, which responded to:
“the actions taken by police or any other statutory body in response to a danger or disturbance at your premises or within a 1 mile radius of your premises.”
Insurers denied coverage in reliance on the Divisional Court, in much the same terms as China Taiping.
Coverage
On behalf of Corbin & King Jeffrery Gruder QC argued, relying on Lord Mance’s reasoning in China Taiping, that government action to close down the insured restaurants had been taken in response to the nationwide pandemic, that included cases of Covid-19 within a 1 mile radius of the insured premises, which amounted to a danger. On the Supreme Court’s concurrent causation analysis, the action had been taken in response to a danger or disturbance within 1 mile of the premises, which therefore was a proximate cause of loss, triggering coverage under the NDDA clause.
Axa for its part contended that the Supreme Court’s findings on causation could not be transposed from disease clauses to prevention of access clauses, which were qualitatively different, but that in any case in the present case the insured peril had simply not been triggered. There had been no “danger or disturbance at the insured premises or within a 1-mile radius of the insured premises”, and the question of causation did not therefore arise.
Mrs Justice Cockerill first concluded that she was not bound by the ruling of the Divisional Court, not only because the Axa clause was sufficiently different from the clauses considered in the test case, but also because the Supreme Court decision in the test case had “moved the goalposts”, and that consequently the legal argument had “developed somewhat … in the way that legal argument inevitably develops, like water, to find its way round an obstacle.”
Approaching the matter from first principles, but drawing heavily on the Supreme Court’s ruling on concurrent causation, and Lord Mance’s persuasive discussion of the issue, Cockerill J therefore found that:
- Covid-19 was capable of being a danger within one mile of the insured premises;
- which, coupled with other uninsured but not excluded dangers outside;
- led to the regulations which caused the closure of the businesses and caused the business interruption loss.
There was therefore cover for Corbin & King’s losses under the Axa NDDOA clause.
2. Prevention of Access - Aggregation
A secondary issue was whether the limit of £250,000 available under the NDDOA clause applied as an aggregate limit to Corbin & King’s losses, or to each of the eight insured premises. Axa accepted that a fresh limit applied for each new set of government restrictions, but maintained that in each case the limit applied to Corbin & King’s business as a whole, and not to each restaurant individually.
On that issue the Court also found in the Claimants’ favour, for two reasons.
First, as Corbin & King pointed out, their policy was a composite one under which the insurer had agreed to indemnify a number of different insured entities, each holding one or more insured premises. The Court found that the insureds’ interest was not joint, and that each had their own claim under the policy.
Moving on to construction, Cockerill J noted that the policy referred to cover in respect of interruption and interference with the business where access to the Premises was restricted, and that each of the Premises was in a different location. The closure of two restaurants “must be seen on any analysis as two separate incidents”, and that was said to be regardless of whether there was one common danger causing the closure, or two separate dangers. The word “premises” pointed to each restaurant/café, and that pointed to separate limits. Cockerill J found that these were powerful points that unequivocally supported the Claimant’s position, and therefore had no difficulty concluding, apparently regardless of the ‘composite policy’ issue, that the Policy provided a separate limit of £250,000 for each insured restaurant.
The ruling marks the first aggregation decision in the Covid-19 BI context, and may serve to dramatically increase insurers’ liability in cases where policyholders have insured multiple locations under a single policy.
3. Furlough and Government Support
A near-universal point of contention in the adjustment of Covid-19 BI claims (where coverage is established), has been the treatment of certain types of government financial support received by policyholders. While insurers have by and large agreed that government grants are to be ignored for the purposes of a BI indemnity, they have generally maintained that any support received in the form of Coronavirus Job Retention Scheme payments (“Furlough”), and Business Rates Relief, should be either be accounted for as turnover or as a saving, thus reducing the value of the covered claim under the Policy.
For their part, many policyholders have maintained that (i) the terms of the policies do not generally support such an approach; (ii) as a matter of common law, such payments do not go to reduce the policyholders’ covered loss, and (iii) as a matter of public policy, government financial support provided to the hospitality industry and other hard-hit sectors was not intended to inure to the benefit of insurers.
Insurers’ approach has had the effect of drastically reducing, or in some cases effectively wiping out, the amount paid by the insurer to policyholders for their claims. The underlying question therefore remains: who should stand first in line to benefit from the government’s financial support measures – the hospitality industry which is still struggling to recover 2 years later, or insurers, who were largely cushioned from the effects of the pandemic, and who have in many cases reported record profits in 2021?
The issue remains untested in the English courts, although a distinguished panel led by Lord Mance in the Hiscox Action Group Arbitration was reported in July 2021 to have found in favour of the policyholders on the issue.
More recently, in the second Australian test case[1], the Federal Court of Australia found at first instance that JobKeeper payments (the Australian equivalent of furlough) were properly deductible from Covid-19 BI claim calculations as a saving. That decision was appealed to the Full Court of the Federal Court of Australia, which last week overturned the ruling and found that JobKeepers payments, and certain other forms of government support, were not to be treated as a saving because they were not made and received “in consequence of” the interruption or interference resulting from the insured peril, i.e. the policyholder would have received the payments regardless of whether there had been an outbreak of disease within the specified radius of the premises.[2]
Whilst the decision of the Australian Full Court is not binding on UK insurers, it provides further support for policyholders’ position in the UK, and will no doubt come under close scrutiny by the Commercial Court, when the issue falls for determination for the first time in the English courts in the forthcoming trial of Stonegate v MS Amlin in June 2022[3].
4. Comment
This week’s developments will come as welcome news to a great many policyholders who have either had their Covid-19 BI claims declined under Prevention/Denial of Access wordings, or who have had the value of their claims reduced for government support received. The Corbin & King decision will also serve as an important authority for those policyholders who are seeking full indemnity for losses suffered at multiple premises. Policyholders in any of these groups should now therefore review their position with their advisors, to consider whether any further action is now required.
Aaron Le Marquer is a Partner at Fenchurch Law
[1] Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID‑19 insurance test cases) [2021] FCA 1206
[2] LCA Marrickville Pty Limited v Swiss Re International SE [2022] FCAFC
[3] https://www.judiciary.uk/you-and-the-judiciary/going-to-court/high-court/queens-bench-division/courts-of-the-queens-bench-division/commercial-court/test-and-grouped-cases-including-covid-19-bii-cases/
Original cause? It’s all the same: Spire Healthcare Ltd v RSA
Background
Spire Healthcare Limited (“Spire”) operated two private hospitals at which Mr Paterson, a consultant breast surgeon employed by the Heart of England NHS Foundation Trust ("HEFT"), carried out unnecessary and inadequate procedures from around 1993 to 2011.
Mr Paterson had been performing sub-total mastectomies ("STMs") which involved leaving some breast tissue behind - a practice that that went against the universally accepted practice of removing all tissue in the event that a mastectomy was clinically indicated. Mr Paterson had carried out this procedure in both his NHS and private practice.
His negligent methods had been discovered by NHS officials at HEFT in 2007, who sought assurances from Mr Paterson that he would cease carrying out STMs. Despite giving those assurances, Mr Paterson continued to carry out STMs. He was subsequently suspended from practice in 2011 by the General Medical Council ("GMC").
Following Mr Paterson’s suspension, Spire discovered that he had also carried out unnecessary surgical procedures – typically, wide local excisions ("WLEs") - in circumstances where there was no clinical indication for the surgical procedure to be undertaken.
High Court Proceedings
Around 750 former patients commenced proceedings against Mr Paterson, Spire and HEFT. Spire settled the proceedings by way of a confidential settlement and sought an indemnity from its insurer, RSA.
The policy had a Limit of Indemnity of £10m and was subject to an aggregate limit of indemnity of £20m. The policy also contained the following wording of relevance:
“The total amount payable by the Company in respect of all damages costs and expenses arising out of all claims during any Period of Insurance consequent on or attributable to one source or original cause irrespective of the number of Persons Entitled to Indemnity having a claim under this Policy consequent on or attributable to that one source or original cause shall not exceed the Limit of Indemnity stated in the Schedule”
RSA had accepted that it would indemnify Spire under the policy, but only to the Limit of Liability of £10m. RSA asserted that all of the claims arose out of one source or original cause, i.e. Mr Paterson or Mr Paterson’s conduct.
Spire’s position was that it should be entitled to the aggregate limit of £20m as there had been two distinct groups in the underlying claim:
- Those attributable to his negligent conduct by carrying out STMs where a full mastectomy was clinically required; and
- Those attributable to his deliberate conduct by carrying out unnecessary surgery.
Ultimately the High Court decided that Spire was entitled to the full £20m from RSA on the basis that there had been a different source and/or original cause between the two groups of patients.
The Court of Appeal Decision
The Court of Appeal considered the previous case law in relation to aggregation wording where loss was consequent on or attributable to one source or original cause, and confirmed the following principles:
- In general, an aggregation clause should be approached neutrally, as opposed to with a predisposition towards either a narrow or broad construction;
- However, the wording in this case requires the widest possible search for a unifying factor in the history of the losses it is sought to aggregate;
- There is no distinction between an "original cause" on the one hand and an "originating cause" on the other, and nor is there a distinction between “cause” and “source”.
- The doctrine of proximate cause does not apply, since “original cause” connotes a considerably looser causal connection; and
- There must still be a causative link between what is contended to be the originating cause and the loss and there must also be some limit to the degree of remoteness that is acceptable.
The Court of Appeal allowed the appeal as it considered the High Court had erred in its consideration of a single effective cause of all the claims, which was not the correct test. Instead, the High Court should have searched for a unifying factor to the claims. Had the High Court done so, it would have identified the unifying factor as a single "rogue consultant" who habitually acted in breach of his duties to his patients.
Furthermore, all the patients' claims were based on Mr Paterson's improper and dishonest conduct. That conduct, in all cases, involved operating on the patients without their informed consent and with disregard for their welfare. Any analysis of Mr Paterson’s motivation was both unnecessary and inappropriate.
The High Court had relied heavily on Cox v Bankside, but the passages relied upon provided no justification for the High Court’s approach. Instead, it had introduced unnecessary complication into what the Court of Appeal considered should have been a relatively simple and straightforward exercise. The claims were not based on a negligent misunderstanding; they were based on a pattern of deliberate and dishonest behaviour by one individual.
The Court of Appeal concluded that:
“As a matter of ordinary language, and applying the principles applicable to aggregation clauses expressed in these wide terms, it seems to me to be plain that any or all of (i) Mr Paterson, (ii) his dishonesty, (iii) his practice of operating on patients without their informed consent, and (iv) his disregard for his patients' welfare can be identified either singly or collectively as a unifying factor in the history of the claims for which Spire were liable in negligence, irrespective of whether the patients concerned fell into Group 1 or Group 2 (or both)”.
Comment
While disappointing for policyholders with similar aggregation wording, the decision does serve as useful reminder on the test to be applied for “original cause” wording.
It should be noted that the Court of Appeal deliberately stepped back from creating a general rule for claims arising from the actions of an individual, and acknowledged that there will still be cases in which the behaviour of an individual will be too remote or vague a concept to provide a meaningful explanation for the claims.
Aggregation disputes will remain highly fact-specific, and policyholders should bear in mind that separate negligent acts with their own individual context may still avoid the sting of “original cause” aggregation wording.
Anthony McGeough is an Associate at Fenchurch Law
Fenchurch Law launches new Reinsurance and International Risks practice
Fenchurch Law, the leading UK legal firm working exclusively for policyholders and brokers on insurance coverage disputes, has launched a new practice group focused on Reinsurance & International Risks. The new group will focus on representing non-UK policyholders in complex and high value insurance disputes under policies placed either directly into the London Market, or placed locally and then reinsured, into the London Market.
Led by the firm’s Managing Partner, David Pryce, the new practice group will also take instructions from captives, and from non-UK insurers which have coverage disputes with London Market insurers.
Commenting on the launch of the new practice group, managing partner, David Pryce explained:
“The London Market has a long and well-established reputation for paying claims. However, it is a fact of business life that occasionally disagreements do arise between policyholders and insurers, particularly when losses are large.
“We’ve launched this new dedicated practice group to reflect the increasingly international nature of our work, which is itself a reflection of the way the London Market continues to be a global leader in writing bespoke and complex risks. In doing so, we’re furthering our purpose of levelling the playing field between policyholders and their insurers, not just in the UK, but across the world”.
Visit the Reinsurance & International Risks page for more information.