Fenchurch Law opens new office in Leeds
Fenchurch Law, the UK’s leading firm of solicitors specialising exclusively in representing policyholders in insurance coverage disputes, is delighted to announce its further expansion with the opening of a new office in Leeds from 1 September 2020, which will provide improved access to policyholders in the North of England, and their insurance brokers.
Founded in 2010, Fenchurch Law was created to allow policyholders access to specialist and high quality insurance advice that insurers have received for decades.
Fenchurch Law is now the largest specialist team of solicitors in the UK dedicated to serving the needs of policyholders. We focus exclusively on representing policyholders in insurance coverage disputes, specialising in high value and complex disputes.
The firm comprises five main practice areas, each of them partner-led by lawyers with a reputation for innovation and excellent client care:
· Professional Risks
· Financial & Commercial Risks
· Construction Risks
· Property Risks, and
· Products & Environmental Risks
Whilst Fenchurch Law has always acted for policyholders across the UK, as well as internationally, we have recognised an increasing demand among policyholders based in the North of England to have access to solicitors who are based closer to them. Our Leeds office has been launched in response to that demand.
David Pryce, Fenchurch Law’s Managing Partner is excited about the next stage of the firm’s expansion:
“For some time we’ve recognised not only that policyholders outside London often like to be able to instruct solicitors who are based closer to them, but also that there is a great pool of talented insurance disputes solicitors who are based outside the City. The launch of our Leeds office is the first step in helping to connect policyholders in the regions with solicitors who are not only based near them, but are genuine insurance disputes specialists with deep insurance market knowledge and experience”.
The Leeds Office will be headed up by Senior Associate, Daniel Robin. Dan has wide ranging experience of the insurance market, having previously worked as a panel solicitor for insurers, as a broker, and as a claims handler for insurers. He now uses his knowledge of how insurers operate to help policyholders to achieve the best outcomes from their insurance disputes. Dan has a particular focus on professional liability, property and financial lines risks.
Working alongside Dan is Phil Taylor, Insurance Consultant. Phil joined Fenchurch Law after 15 years in Broking as Regional Claims Director dealing with a wide portfolio of Clients, major and complex losses, and coverage disputes on first and third party claims. Prior to Broking, Phil’s background was Liability Loss Adjusting specialising in EL, PL, Products and Professional Indemnity claims. Phil has 35 years of experience in the insurance industry, is ACII qualified, and holds Chartered Status with the CII.
Fenchurch Law launches Fenchurch Advocacy Services
Fenchurch Law, the UK’s leading firm of solicitors focused exclusively on representing policyholders in insurance coverage disputes, is delighted to announce the launch of a unique claims advocacy service for insurance brokers, Fenchurch Advocacy Services, which will be available from 1st September 2020.
Fenchurch Advocacy Services is a non-legal insurance service designed to replicate the high quality, specialist claims advocacy currently only provided by the “Big 3” brokers and the Nationals.
Fenchurch Advocacy Services will provide brokers and their clients with access to an experienced ACII qualified and chartered status insurance claims professional, to offer brokers support, advice and assistance, as and when required, on claims-related issues, for a fixed monthly fee.
Announcing the launch David Pryce, Fenchurch Law’s Managing Partner, commented that: “For several years the brokers who we work with have been telling us that they really value the services we provide to them, and would like us to support them in other ways. Fenchurch Advocacy Services allows us to do just that, by providing brokers outside the “Big 3” brokers and “Nationals” with the same high quality claims advocacy that those larger brokers are able to provide to their clients. As a firm our purpose is to help level the playing field between policyholders and their insurers, and the launch of Fenchurch Advocacy Services is an important milestone in that journey”.
Fenchurch Advocacy Services will be headed up by Phil Taylor, Insurance Consultant. Phil joined Fenchurch Law after 15 years as Regional Claims Director at a leading broker, dealing with a wide portfolio of clients in relation to major and complex losses, and coverage disputes on first and third party claims. Prior to broking, Phil’s background was in Liability Loss Adjusting specialising in EL, PL, Products and Professional Indemnity claims. Phil has 35 years of experience in the insurance industry, is ACII qualified, and holds Chartered Status with the CII.
For further information please click here or contact Phil Taylor.
Fenchurch Law launches "The Associate Series"
Fenchurch Law’s new initiative, The Associate Series, is being launched with a view to sharing our knowledge and experience of coverage disputes with junior-mid level brokers. In doing so, we hope to enhance brokers’ ability to add value to their portfolios.
Fenchurch Law are specialists in coverage disputes. We act exclusively for policyholders and work shoulder-to-shoulder with (and never against) brokers.
The associates, whose specialisms span across a number of classes of insurance, are now sharing their expertise to assist junior-mid level brokers and claims handlers in their own careers. The associates are well-placed to do so as coverage specialists with prior experience as either brokers or insurer-side lawyers.
The Associate Series will enable us to share our knowledge and encourage you to cultivate relationships. Talks are being delivered to brokers across the UK between now and Christmas, with more seminars being planned for 2020.
The (free!) talks will be no more than 30 minutes each and focus on practical issues affecting the junior-mid tier. The fact that the talks are being delivered by your peers will, it is hoped, allow for relaxed interactive sessions.
The menu of talks will be regularly updated to reflect market developments but retain some core topics. The current menu is:
- Notification
- Coverage Disputes 101
- Damages for late payment
- A claims handler, broker and lawyer’s perspective
- Property Risks
- Third Party Rights against Insurers
- D&O
- Combustible cladding
- Contractors and traps for their brokers
Some of these talks will also be the subject of webinars, and there will be regular blogs looking at issues and trends in the market. Keep an eye out for our events and material!
If you have any queries about The Associate Series please contact James Breese on 020 3058 3075 or via james.breese@fenchurchlaw.co.uk.
Fenchurch Law recognised for claims dispute expertise with tier one ranking in Legal 500
Fenchurch Law, the leading UK firm working exclusively for policyholders and brokers on complex insurance disputes, has received a tier 1 ranking in the latest Legal 500, marking an important milestone in the firm’s commitment to improving policyholder outcomes.
David Pryce, managing partner, said: “From the very launch of the firm seven years ago, our aim has been to provide insurance policyholders with access to the same levels of legal expertise and support that insurers have in dealing with complex claims disputes.
“To be recognised for both our policyholder litigation expertise and our client-focused ethos is testament to the commitment of the team to ensuring there is a level playing field in the resolution of disputes.”
“This recognition also comes in no small part thanks to the support and shared commitment of the insurance broking community to improving outcomes for policyholders. We will continue to work with them to develop our services and capabilities to reflect the evolving needs of policyholders to support their clients through complex disputes.”
Legal 500 recognised the Fenchurch Law team’s legal and policyholder litigation capabilities and expertise and its client-focused ethos. David Pryce was recognised as a leading individual in insurance litigation and partners Daniel Brooks and Amy Lacey were also rated as next generation lawyers.
Dalecroft Properties Limited – v – Underwriters
Dalecroft Properties Limited – v – Underwriters subscribing to Certificate Number 755/BA004/2008/OIS/00000282/2008/005
[2017] EWHC 1263 (Comm)
This recent decision by the Commercial Court provides a neat recap of the applicable law pre the Insurance Act 2015, which still applies to many claims brought by policyholders today.
The Claimant, Dalecroft Properties Limited (‘Dalecroft’), owned a property in Margate (‘the property’). The property was a mixture of commercial and residential parts, and was insured with the Defendants (‘the Underwriters’).
The property was a five-storey building, and included a restaurant, a charity shop and an amusement arcade, the upper floor of which had previously been used as a discotheque (‘the disco building’).
The brief insurance history is as follows:
- On 1 August 2007, Tristar (the Underwriters’ Agents) issued Dalecroft with a schedule for the period 1 August 2007 – 31 July 2008 (‘certificate 001’).
- Shortly after, Dalecroft requested an increase to the sums insured. Accordingly, on 16 August 2007, Tristar issued Dalecroft with a new schedule marked CANCEL & REPLACE (‘certificate 002’).
- At the August 2008 renewal, Tristar issued Dalecroft with a schedule for the period 1 August 2008 – 31 July 2009 (‘certificate 003’).
- On 19 November 2008, Dalecroft’s brokers requested that “the property should be registered in the name of Dalecroft Properties Ltd’. On 20 November 2008, Tristar issued Dalecroft with a new schedule marked CANCEL & REPLACE (‘certificate 004’). The period of insurance ran from 19 November 2008 to 31 July 2009, and the premium was stated to be £0.00.
- On the same day, Dalecroft’s broker noted that Tristar had failed to correct Dalecroft’s name on the policy and so, on 21 November 2008, Tristar issued a further schedule marked CANCEL & REPLACE (‘certificate 005’). Again, the insured period ran from 19 November 2008 – 31 July 2009, and the premium was stated to be “£0.00.”
A fire occurred on 16 May 2009, which required the property to be demolished and rebuilt. Dalecroft then made a claim on the policy, which the Underwriters sought to avoid.
In the subsequent proceedings, Dalecroft claimed an indemnity from the Underwriters for its losses arising from the fire. The Underwriters counterclaimed for a declaration that they were entitled to avoid the policy on the grounds of misrepresentation/non-disclosure, and a breach of warranty.
In all but one of allegations of misrepresentation, Dalecroft denied that what it said was untrue. It also said the matters complained of by the Underwriters did not induce the making of the contract, as the relevant contract was not made until 2008, by which point the Underwriters had issued a revised certificate headed “Cancel and Replace.”
The issues to be decided were:
a) Which was the relevant policy?
b) Did Dalecroft misrepresent any matters to the Underwriters?
c) Were there any breaches of warranty?
d) Was the risk divisible into commercial and residential parts?
Which was the relevant policy?
Dalecroft submitted that the relevant policy was contained in certificate 005, this being the policy in force at the date of the fire.
The Underwriters, by contrast, submitted that correct policy was certificate 003 i.e. the policy issued at renewal in August 2008.
The Judge, Mr Richard Salter QC, agreed with the Underwriters. He accepted that certificates 004 and 005 were marked CANCEL & REPLACE; however, neither certificate was a new policy.
Misrepresentation/Non-Disclosure
The Underwriters relied on the following misrepresentations/non-disclosures in the August 2008 Proposal/Statement of Fact:
a) That the residential units were vacant for refurbishment;
b) That the property was in a good state of repair;
c) That the property had no flat roof;
d) That the property had not been subject to malicious acts or vandalism;
e) The non-disclosure of the fact that the property had been the subject of an Emergency Prohibition Order (‘EPO’) dated 6 June 2008.
Apart from point (a), the Underwriters made out their case in respect of each alleged misrepresentation/non-disclosure.
There was compelling evidence that the property had suffered from broken windows, leaking and drainage issues (amongst other issues). Accordingly, Dalecroft had misrepresented that the property was in a good state of repair.
As regards the status of the roof, the Judge noted the experts’ views that the flat proportion of the roof comprised 50.43% of the entire roof area. As such, the representation that there was no flat roof was also incorrect.
As to the alleged malicious acts of vandalism, the Judge found that there was a history of “continual disturbances of vandalism and drug taking”, together with at least one further specific incident where a police officer was assaulted. Therefore, this too had been misrepresented.
Finally, the Judge accepted that the EPO had been misrepresented. There was a long list of defects to the property (which significantly increased the risk of fire), and nothing to suggest that the issues had been remedied. In the circumstances, the Judge found that this was a matter about which a prudent insurer would have wished to know.
The Judge found that each of points (b) – (e) were material, and that the Underwriters had made out their case on inducement. Accordingly, Dalecroft’s claim had to fail.
Although not strictly necessary, the Judge went on to consider the remaining issues.
Were there any breaches of warranty?
The Underwriters alleged that Dalecroft breached a Commercial Unoccupancy Condition in the policy (‘the Condition’) in that it had failed to ensure that:
a) The Basement and disco building were free of combustible materials;
b) The charity’s letterbox was sealed;
c) The Charity Shop and the Basement were properly secured;
On the evidence, the Judge was satisfied that Dalecroft was in breach of the Condition. In particular, it was clear from the available photographs that there were loose combustible materials in the disco building, and that neither the charity shop nor its letterbox were secured against unauthorised entry.
Was the risk divisible into commercial and residential parts?
Dalecroft argued that the risk was divisible, and that, because the alleged misrepresentations/non-disclosures related only to the residential parts, it was entitled to an indemnity for their losses in relation to the commercial part.
The Judge disagreed. The condition broken by Dalecroft was directed at risks which jeopardised the entire property. It followed that the Underwriters were discharged from all liability.
Summary
The Underwriters, on the facts of this case, were entitled to reject all claims made against them. The Judge was keen to emphasise, however, that even if the new law had applied, Dalecroft’s claim would still have failed. In this respect, he was satisfied that Dalecroft made “no real effort” to make a fair presentation, and that Underwriters would still have declined to take on the risk.
Alexander Rosenfield is an associate at Fenchurch Law
Insurance Act 2015: Some Insurers Crying Foul
When the Insurance Act 2015 came into force in August 2016, it was hailed as the biggest reform of this area of law in over a century. The old law had been criticised by the Law Commission as “out of date” and “no longer reflecting the realities of today’s commercial practices”.
The Act addressed those criticisms head-on. It repealed the archaic “duty of utmost good faith” and created a new, fairer, “duty of fair presentation” designed to clarify precisely what is required from policyholders during the disclosure process, and to increase the burden on Insurers to ask the right questions about the risk they wish to write.
Likewise, the Act softened many of the harsh remedies available to Insurers under the pre-Act regime. Where policyholders innocently omitted to disclose a material piece of information (for a wide variety of unfortunate, but quite understandable, reasons), the old law afforded Insurers the draconian remedy of avoiding the policy in its entirety, even if they would have still written the risk in one way or another.
The Act, on the other hand, asks the very sensible question brokers and coverage lawyers have been asking for decades, which is: “What would you have done had you known?”. If the Insurer would have written the risk in any event, the Act’s new system of proportionate remedies provides a more measured redress mechanism to alter policy terms or the premium retrospectively to reflect what ought to have happened in the absence of the Insured’s oversight.
Uncertainty for Brokers and Policyholders
On the face of it, therefore, the Act generally works in favour of policyholders. However, as with all change (even one for the better), the move from a complex, but established, body of law to a more rational, but nonetheless new and untested, set of rules has created much uncertainty for brokers and their clients over the past six months.
In particular, many brokers now ask themselves and their advisors: “Does the Act really put my clients into a better position than they were in under the old law, and, if not, can I use the prevailing market conditions to improve their position in some way?”
The answer, of course, is that it in many cases the Act puts Insureds in a worse position than under the old law, leaving brokers with the challenge of finding an appropriate solution to protect their clients’ interests.
The best (and most controversial) example of this is the use of “Innocent Non-Disclosure” clauses on certain lines of business. Pre-Act, clauses such as the following were largely uncontroversial and commonplace protections against the risk of avoidance:
“Insurers shall not avoid this Policy as a result of any non-disclosure or misrepresentation by the Insured save in respect of a fraudulent non-disclosure or misrepresentation”.
In other words, under the old law Insurers were prepared (for a variety of reasons, not least their eagerness to write business) to agree that nothing short of a fraudulent non-disclosure or fraudulent misrepresentation would give them opportunity to remove that client’s cover in its entirety.
Under the Act’s new proportionate remedies regime, even an innocent breach of the duty of fair presentation might, for example, entitle Insurers to retrospectively increase an Insured’s premium significantly, or to exclude the type of loss that has unearthed the innocent non-disclosure. In the absence of an Innocent Non-Disclosure clause (tweaked to reflect the new order of things), an Insured therefore has far less protection on certain lines than they might have secured in previous years.
Tension between Brokers and Insurers
It is unsurprising, therefore, that many brokers have continued to insist on the inclusion of Innocent Non-Disclosure clauses (as well as a variety of other protections) to ensure that their clients remain protected against non-disclosure remedies under the Insurance Act, much as they were protected under the old law. The reality is that Insurers today continue to compete fiercely, and many are therefore prepared to maintain these same protections afforded to Insureds that were available when the old law applied.
Many Insurers, however, have cried foul-play, arguing that these clauses should no longer be necessary in the post-Act world. Some go further and argue that taking advantage of soft market conditions to include them is in some way “unfair” to Insurers, given the Insurance Act was designed to “level the playing field”.
Such arguments are unlikely to hold water with brokers. One of the principal reasons the Law Commission recommended changing the law was to ensure that the rights generally afforded to Insurers on all lines of business reflected the realities of today’s market practice. Changing the inherent dynamics of the market was never on the agenda. If soft market conditions mean that Insurers, in competing for business, remain prepared to offer greater certainty and protection to Insureds, then brokers are duty bound to try and secure those things for their clients.
Conclusion
Under the pre-Act regime, the balance of power lay firmly with Insurers. At worst, policyholders might have found themselves without cover for either perfectly innocent non-disclosures or for breaches of terms wholly irrelevant to a particular loss. Market conditions pre-Act gave brokers the ability to protect their clients from those harsh remedies.
While those remedies no longer exist, brokers will continue to use those same market conditions to find ways to eliminate some of the uncertainty the Act has created. Some Insurers will see that as the insurance market working as it should. Others will say that gaining such protections flies in the face of the spirit of the Act.
To those latter Insurers, I can only assure them their own brokers are very probably striving to achieve precisely the same protections for those Insurers’ own exposures. Every cloud?
James Morris is a senior associate at Fenchurch Law.