Fenchurch Law receives third consecutive nomination for insurance law firm of the year
Following our success at last year’s Post Magazine Claims Awards, we are proud to have been nominated again in 2017 for the Insurance Law Firm of the Year Award.
In 2016, we were honoured to have received the award that recognises, that specifically recognises a firm that demonstrates technical ability and the application of innovative ideas and customer service within legal services. The team are delighted to have received this second nomination for such a prestigious award.
This nomination highlights the increasing recognition that whole industry is driving for improved policyholder outcomes.
The Post Magazine Claims Awards celebrate excellence and innovation in the general insurance claims sector. The 2017 award winners will be announced on 1st June at a ceremony in the Sheraton Hotel on London’s Park Lane.
To find out more about the Awards and a list of all the finalists check out http://www.postevents.co.uk/claimsawards/static/shortlist
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 The old law had been criticised by the Law Commission as “out of date” and “no longer reflecting the realities of today’s commercial practices”.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 It repealed the archaic “duty of utmost good faith” and created a new, fairer, “duty of fair presentation” designed to clarify precisely what is required from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.
Fenchurch Law appoints Morris to strengthen financial lines insurance disputes team
Fenchurch Law, the UK’s leading firm working exclusively for policyholders and brokers on complex insurance disputes, announces the appointment of James Morris as senior associate.
In his role, he is specialising in representing policyholders with coverage disputes arising from financial lines insurances including professional indemnity, D&O, crime, cyber and warranty & indemnity.
David Pryce, managing partner of Fenchurch Law, said: "James brings to the team important experience from across the insurance industry including legal advisory work to insurers, adjusting major losses for an insurer and performing in-house advocacy for a leading insurance broker. His background and understanding adds further strength to our financial lines capabilities.”
James joins Fenchurch Law from JLT Specialty where he was legal and technical advocate, financial lines group. He spent a number of years at City law firm RPC where he was an associate in their financial risks practice. While in his role at RPC James was seconded to AIG’s financial lines claims team, where he adjusted both major and complex claims and losses.
James also sits on the British Insurance Law Association’s Under 35s Committee.
No on-going obligation to assess if a claim is likely: Zurich -v- Maccaferri
In a (predictably?) pro-policyholder decision, the Court of Appeal (Black and Christopher Clark LJJ) yesterday dismissed Insurers’ appeal. Instead it agreed with the trial judge that the policyholder (Maccaferri) had not breached a condition in its public liability policy requiring it to notify insurers “as soon as possible after the occurrence of any event likely to give rise to a claim”.
Maccaferri’s business involved the hiring out of “Spenax Guns” (pictured - in effect, giant staplers used to tie steel mesh gabions together) to builders’ merchants, who in turn hired them out to building contractors. In this case, an employee of one such building contractor was badly injured by a Spenax Gun. Maccaferri quickly found out that there had been an incident involving one of its Guns, but did not know either that there had been a serious injury or that the Gun might have been faulty - as opposed to its having been mis-used or the accident having happened without anyone’s fault.
Zurich argued, however, that further information about the incident which Maccaferri subsequently discovered meant that many months after the incident Maccaferri knew or should have known that a claim was likely, and thus should have - but failed - to notify them, thereby disentitling it from cover.
The Court of Appeal disagreed. Instead, it agreed with the trial judge that the clause in question required a reasonable assessment by the insured at the time of the “event” as to whether it was likely to give rise to a claim and did not, as Zurich had submitted, impose an obligation on the insured to “carry out something of a rolling assessment, as circumstances develop, as to whether a past event is likely to give rise to a claim”. The Court of Appeal held that:
“This is a condition introduced by Zurich into its policy which has the potential effect of completely excluding liability in respect of an otherwise valid claim for indemnity. If Zurich wished to exclude liability it was for it to ensure that clear wording was used to secure that result. It has not done so. It is possible to construe the use of the phrase “as soon as possible” as meaning that even if, when the event occurred, it was not likely to give rise to a claim, the obligation to notify would arise whenever thereafter the insured knew or should have known that an event which had occurred in the past was likely to give rise to a claim. But I regard this as a strange interpretation and erroneous.
It is, in any event, far from clear that that is the right interpretation and, given the nature of the clause, the ambiguity must be resolved in favour of Maccaferri.”
Putting the boot in (or kicking an insurer when it’s down), the Court of Appeal went on to find that, even if Zurich’s construction of the clause had been correct, nothing in fact had subsequently occurred which meant that Maccaferri ever knew or should have known that a claim was in the offing, until it had eventually received (and promptly notified) civil proceedings against it.
The Court of Appeal’s decision is yet another instance of the courts deciding coverage disputes in the policyholder’s favour when that outcome is open to it on the relevant policy wording and when there is no evidence of any real culpable conduct by the policyholder.
However, one should sound a note of caution. As the Court of Appeal mentioned in passing (see paragraph 33 of the judgment), while the above might apply to a typical clause in a public liability policy requiring the policyholder to notify “an event likely to give rise to a claim”, the position will be different in professional indemnity policies, where the obligation is to notify a circumstance which is likely to (or, depending on the wording, which might) give rise to a claim. Whereas an event is a one-off occurrence, whose likelihood to give rise to a claim is (as we now know) to be assessed then and there, circumstances can and do evolve during the currency of a professional indemnity policy. Thus, whereas a client’s failure to pay a professional's invoice would, in isolation, almost always fall short of a notifiable “circumstance”, the position would change if, a few months later, the client explained that his failure to pay was the result of his dissatisfaction with the services which he had received.
See: Zurich Insurance plc -v- Maccaferri Ltd [2016] EWCA Civ 1302(12/01/2017)
http://www.bailii.org/ew/cases/EWCA/Civ/2016/1302.html
Jonathan Corman is a partner at Fenchurch Law.
Exclusion clauses clarified
In the recent decision of Impact Funding v. AIG the Supreme Court gave important guidance on the construction of exclusion clauses in the context of Insurance policies. Whilst of particular interest to Solicitors and their insurers the decision is of wider importance.
Barrington Support Services Limited (Barrington) was a firm of Solicitors who acted for claimants wanted to pursue claims for industrial deafness. Public funding was no longer available for such claims and hence the clients needed to fund their actions by way of CFA and ATE insurance. Impact Funding Solutions Limited “Impact” provided cover for disbursements which would be incurred in pursuit of those claims. The intention was that if the litigation was successful, the loans would be repaid by the defendants to the action and, if unsuccessful, by ATE insurers. Crucially in this case, Impact also had a direct cause of action against Barrington under the terms of a Disbursement Funding Master Agreement (DFMA). It provided amongst other things;
(a) at clause 6.1, that each party would “comply with all applicable laws, regulations and codes of practice from time to time in force… and each party indemnifies the other against all loss, damages, claims, costs and expenses… which the other party may suffer or incur as a result of any breach by it of this undertaking”; and
(b) at clause 13.1, Barrington represented and warranted to Impact that “the services provided or to be provided by [Barrington] to the Customer shall be provided to the Customer in accordance with their agreement with the Customer as set out in the relevant Conditional Fee Agreement”.
Loans amounting to £581,353 were made by Impact. Barrington failed to investigate the claims properly which either failed or were never pursued. ATE insurers refused to pay out as a result of Barrington’s negligence, leaving Impact substantially out of pocket. Barrington became insolvent and Impact brought a claim against Professional Indemnity Insurers, AIG, under the Third Party Rights against Insurers Act.
The professional indemnity policy written by AIG (“the Policy”) was written on materially the same terms as the Minimum Terms and Conditions.
The insuring clause provided: “The insurance must indemnify each Insured against civil liability to the extent that it arises from Private Legal Practice in connection with the Insured Firm’s Practice…”.
At clause 6.6 the Policy contained an exclusion for:
(a) trading or personal debt of any Insured; or
(b) breach by any Insured of the terms of any contract or arrangement for the supply to, or use by, any Insured of goods or services in the course of the Insured Firm’s Practice; or
(c) guarantee, indemnity or undertaking by any particular Insured in connection with the provision of finance, property, assistance or other benefit or advantage directly or indirectly to that insured…”
The judge at first instance decided that the exclusion applied. The Court of Appeal overturned that decision, holding that it was inapplicable and that AIG were liable under the policy. AIG appealed to the Supreme Court. By a majority of 4 to 1 the Appeal was allowed. The Supreme Court had to decide:
(a) Whether the contract between Impact and Barrington was a contract or arrangement for the supply of services to Barrington by Impact and hence excluded (notwithstanding that Impact’s loss arose from Barrington’s negligence in handling its clients claims)
(b) Whether it was necessary to construe the exclusion clause narrowly limiting its effect so as to make it consistent with the purpose of the Policy as a whole, given that this was a Professional Indemnity policy.
In relation to (a) the Supreme Court found that the contract was indeed a contract for Impact to supply services to Barrington: (i) Barrington contracted with Impact as a principal and not as an agent for the clients (ii) Barrington clearly obtained a benefit from the funding of disbursements since it enabled the claims to be fully funded. Barrington’s clients were able to pursue their claims which they could not otherwise afford and hence it was able to earn fees (iii) Barrington itself had paid an administration fee and had agreed to pay the loan itself should the client(s) breach the credit agreement.
In relation to (b) the Supreme Court found that there was no reason to imply additional words to limit it’s scope, it was not necessary to give the contract business efficacy or was so obvious that it went without saying. The Policy should be construed as having a broad insuring clause but subject to a number of exclusions which were “an attempt to identify the types of liability against which solicitors are not required by law to be covered by way of professional liability insurance”. There was no reason to construe those exclusions narrowly.
Good news for Insurers and bad for insureds? Not necessarily. Although obviously bad news for Impact. The decision as a whole should be welcomed as it provides clarification in relation to the construction of the policy. Many firms are considering their options not only in relation to Alternative Business Structures, but also in relation to litigation funding as a whole. We would also suggest it is good news for the Solicitors Profession as a whole. As had the decision gone the other way, potential sky high premiums for next renewal should insurers be obliged to cover claims such as this?
Pauline Rozario is a Consultant at Fenchurch Law
Fenchurch Law boosts insurance disputes team with three new appointments
Fenchurch Law, the UK’s leading firm working exclusively for policyholders and brokers on complex insurance disputes, announces the expansion of its team with three new appointments.
Joanna Grant joins as a partner in the firm’s financial and commercial practice. She was previously senior associate at Allen & Overy. Her broad experience in complex multi-jurisdictional proceedings and arbitrations includes acting for financial institutions and global corporates in high-value commercial coverage disputes. A particular focus of her insurance practice is advising on political risk, crime, and D&O policies. She also has considerable experience of Bermuda Form arbitration.
Pauline Rozario will be a consultant to the firm specialising in professional indemnity insurance disputes, with a particular focus on disputes involving solicitors. She has over 20 years’ experience in handling such claims, initially at the Solicitors Indemnity Fund and latterly at a leading professional indemnity insurer.
Sara-Jane Reilly joins as trainee solicitor from a large insurer where she specialised in construction claims and later moving on to handling professional indemnity claims. Prior to this, she worked for the Financial Ombudsman Service as part of their insurance division, arbitrating disputes between policyholders and insurers. Sara-Jane is due to qualify as a solicitor in March 2017.
Commenting on the appointments, David Pryce, managing partner at Fenchurch Law, said: “We are delighted that Joanna, Pauline and Sara-Jane have agreed to join the firm. We are committed to investing in the growth of our business and this continued investment in the expansion of capabilities is part of our wider objective of improving outcomes for policyholders.”
The new appointments brings the total number of partners at the firm to seven.
Fenchurch Law launches combined legal service and costs cover for policyholders with insurance claims disputes
Fenchurch Law, the UK’s leading firm working exclusively for policyholders and brokers on complex insurance disputes, has launched Fenchurch Law Unlimited (Unlimited) with the goal of protecting policyholders and levelling the playing-field with insurers.
Most policyholders are unable to match the financial resources or the specialist professional support networks that their insurers can call upon. This means that if insurers refuse to pay a claim, very few policyholders are able to challenge the decision on a commercially level playing-field.
As part of the package, policyholders also have access to unlimited legal advice in relation to their rights and obligations under their insurance policies and cover for the cost of pursing a claim against the insurer. Costs such as counsels’ fees, experts’ and court fees, and the risk of having to pay insurer’s costs are also covered, for claims with good prospects of success. It will be sold through brokers on a delegated authority basis, alongside the policyholder’s existing commercial or personal lines insurance.
How does it work?
The policyholder buys the service at the same time as they take out their insurance policy, for a single up-front fee calculated as 1% of the premium of the policyholders’ insurance policies.
Commenting on Unlimited David Pryce, managing partner at Fenchurch Law, said: “When an insurer refuses to pay a claim very few policyholders are able to challenge them on a commercially level playing-field. Unlimited is all about improving outcomes for policyholders, and addresses a risk faced by all policyholders but for which there was no protection available, until now”.
“Working in conjunction with a group of like-minded providers we have been able to produce a package of services offering the same high quality representation insurers already receive in dealing with disputes. We will now be working to introduce the benefits of Unlimited across the UK insurance broking sector as a key part of their client support offering.”
For further details about Unlimited and how it could benefit you or your clients please contact us either by email at address unlimited@fenchurchlaw.co.uk or call our dedicated Unlimited phone number 020 3058 3088.
Fenchurch Law: Insurance Law Firm of the Year
Fenchurch Law won the award for Insurance Law Firm of the Year at the 6th Post Magazine Claims Awards held in London last night.
The awards celebrate excellence and innovation in the general insurance claims sector, and the Insurance Law Firm of the Year Award recognises technical ability and the application of innovative ideas and customer service within legal services.
David Pryce, Managing Partner of Fenchurch Law said: “We were honoured to be shortlisted and are absolutely delighted to have won. It is a real credit to the insurance market to consider us for this award, given our sole focus on representing policyholders. However, we’ve always believed that all good insurers share the same goal as we do: to improve outcomes for policyholders. I’d like to thank the team at Fenchurch Law for all their hard work over the last six years, as well as our many valued supporters within the broker community.”
The Claims Awards were announced at the Royal Garden Hotel in London on the 2nd June.
Fenchurch Law trainee to qualify
Fenchurch Law, one of the UK’s leading firms working exclusively for policyholders and brokers on complex insurance disputes are delighted to announce that Marie van Ingelghem will be admitted as a Solicitor on 14th June 2016.
Marie started her training contract with Fenchurch law in 2014 and qualifies in to the Financial & Commercial team, which is led by John Curran.
Before joining Fenchurch Law in 2014, Marie worked as a Claims Advocate in the City office of a leading global insurance broker.
Marie is a member of the Chartered Insurance Institute Claims Faculty and holds a Certificate in Insurance (CII Claims) qualification.
John Curran, FinCom team leader, said: “We are delighted that Marie will qualify this month. Fenchurch Law has grown considerably over the last 12 months, and retaining Marie with her first rate claims broking experience, and her commitment to putting policyholders first, allows us to continue strengthening our team.”
Fenchurch Law boosts professions practice with associate appointment
Fenchurch Law, one of the UK’s leading firms working exclusively for policyholders and brokers on complex insurance disputes, has expanded its professions practice with the appointment of associate Cécile Lonjarret.
Cécile has expertise in professional indemnity claims representing a variety of professionals including architects, solicitors, barristers, financial advisers and accountants. She joins Fenchurch Law from Baker & McKenzie.
Commenting on the appointment, David Pryce, managing partner at Fenchurch Law, said: “Cécile is the 4th new joiner to Fenchurch Law in the last 6 months which is testament to our commitment to attracting high-calibre individuals. We are committed to investing in the growth of our business and this continued investment in the expansion of capabilities is part of our wider objective of improving outcomes for policyholders.”
Comprising very experienced practitioners Jonathan Corman and Rob Fink the professions team represent professionals of all types, including accountants, insolvency practitioners, solicitors, IFA’s and surveyors.