It has long been an oddity of English Law that an insured has no right to claim damages for late payment of sums due under an insurance contract. This arises from a historical legal fiction whereby the claims payments themselves are considered to be damages for breach of contract by an insurer and the law does not permit the recovery of damages for losses suffered by the late payment of damages. The only claim that an insured has is for interest on the late payment. That was only ever at the discretion of the Court and so often irrecoverable in practice if a claim was settled prior to Court proceedings.
The High Court recently considered a claim by an investment management company against two former employees for copying and retaining the company’s confidential information. The Claimant sought £15m in damages, representing what it considered to be the value of the confidential information, but was awarded a mere £2, as it had not based its case on actual use of the information.
Two recent cases on conditions precedent – one in favour of the insurer and one against – illustrate that arguments over the meaning of key insurance terms will continue against the backdrop of the Insurance Act 2015.
Last month the High Court in Denning v Greenhalgh Financial Services Ltd  EWHC 143 (QB) considered the scope of the duty of care owed by a professional to its client. In striking out the claim against a pensions advisor the Court provided a useful reminder of the “signal importance” of the retainer and the limited circumstances in which the Court might be willing to extend a professional’s duty beyond those terms.
AIG Europe Limited v Woodman & Others  UKSC 18
The Supreme Court has today finally put to bed the long running AIG solicitors' insurance claims aggregation saga. Market wisdom has broadly prevailed on the principles and the confusing qualifications introduced by the High Court and Court of Appeal have gone. However the Court did decide that insurers will only be partially successful on the agreed facts in that separate limits of indemnity were available for each of the two developments, which demonstrates once again how fact sensitive liability cap issues are.
We have vast experience in implementing strategies for insurers and insureds facing multiple claims and are always available for an informal initial discussion. Please contact Richard Loney if you would like to know more.
In Versloot Dredging BV & anor v HDI Gerling Industrie Versicherung AG & ors  UKSC 45 the Supreme Court considered whether the use of ‘fraudulent devices’ (or ‘collateral lies’ to use the Court’s preferred terminology) should operate to forfeit an otherwise perfectly legitimate claim under an insurance policy. The Supreme Court found by majority (Lord Mance dissenting) that it should not.
In the recent case of DB UK Bank Limited (t/a DB Mortgages) -v- Jacobs Solicitors  EWHC 1614 (Ch) the High Court confirmed that making an offer under Part 36 of the Civil Procedure Rules has the effect of rejecting an earlier common law offer, meaning it is no longer capable of acceptance.
The long delayed Third Parties (Rights Against Insurers) Act 2010 came into force from the beginning of August 2016 with the intention of making it quicker, easier and more certain for Claimants seeking recovery from the liability insurers of insolvent policyholders who have caused them loss.
The pilot scheme for adjudication in professional negligence claims, first introduced in February 2015, has recently been relaunched. For parties to professional negligence disputes, the scheme is an alternative to Court for the resolution of the claim, or particular issues within it.
In two recent cases, the Court of Appeal has considered the law regarding the enforceability of contractual clauses that purport to restrict the way in which the contract can be varied. These types of clauses are common, and often require any variation to be made in writing. There had previously been mixed decisions from the Court on the issue and we now have a useful analysis and clarity on previously inconsistent judicial approaches.
The Insurance Act 2015 heralds the long-awaited reform of insurance contract law. It represents a number of significant changes to the rights and remedies of insurers and policyholders and impact on the role and duties of commercial brokers. In this article we consider changes to the Insured’s disclosure obligations at a pre-contract stage.
The Insurance Act 2015 heralds the long-awaited reform of insurance contract law. It represents a number of significant changes to the rights and remedies of insurers and policyholders and impact on the role and duties of commercial brokers. In this article we consider changes to the remedies available to insurers in circumstances where it contends that the insured has breached its duty of fair presentation.
The Insurance Act 2015 heralds the long-awaited reform of insurance contract law. It represents a number of significant changes to the rights and remedies of insurers and policyholders and impact on the role and duties of commercial brokers. In this article we consider changes to warranties and other conditions of the insurance contract.