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Project Angel Bidco v AXIS - what are the key takeaways for warranty and indemnity insurers?
On 31 October 2023, the London Circuit Commercial Court gave judgment in Project Angel Bidco Limited (in administration) v Axis Managing Agency Limited & Ors (2023) EWHC 2649.
Read moreWordings do matter
Contract drafting has been brass tacks for lawyers since the dawn of time. In its broadest terms, it involves putting the scope of a bargain reached between parties into clear and effective language.
Read moreStorm Babet, flooding and the insurance implications
Subtropical cyclone Storm Babet is currently responsible for over 350 flood warnings in the UK, with more flood warnings expected later this week.
Read moreConstruction disciplinary trends analysis #1: continuing professional development
This article is the first in our mini-series analysing trends in disciplinary decisions involving construction professionals, with insight from our specialist disciplinary team.
Read moreGetting to know Global Access Lawyers
Global Access Lawyers brings together some of the worlds leading insurance law practices. In the following pages get to know the different law firms that make up Global Access, who we are, where we operate and the kind of work we do. We hope you find this useful to understand the international reach of Global Access.
Read moreCourt of Appeal finds in favour of FSCS on scope of the Policyholder Protection Rules (PRR)
Tamsin Hyland explores the recent judgment of JR (On the application of Manchikalapati v FSCS [2023] EWCA Civ 1006) and its relevance to insurance policy wording.
Read moreAre settlements covered under liability policies if not consented to by the insurer? Does it make any difference if the insured was told to "act as a prudent uninsured"?
Does it make any difference if the insured was told to "act as a prudent uninsured"?
Read moreThe El Niño year and impact on subsidence claims
Insurers should be bracing for a wave of subsidence claims arising from the increasingly warm weather. The UN’s World Meteorological Organization (WMO) has declared that an El Niño climate event is in progress, which helps explain why June 2023 was the hottest on record in the UK.
Read moreWhat does the FRC's proposed corporate governance overhaul mean for D&O exposures?
The Financial Reporting Council (FRC) has now published the draft new UK Corporate Governance Code following the Government's requirements that it incorporate more robust internal control and prudent and effective risk management requirements. The deadline for responses to the FRC's consultation is 13 September 2023.
Read moreWhat’s next for PFAS litigation?
RPC’s Lucy Dyson explores how growing public awareness of PFAS and the associated health and environmental concerns has seen a rise in litigation in the US that parallels asbestos as a toxic tort, with claims over chemical contamination in Europe also on the rise.
Read moreCovered: Insurance regulation – Asia edition
Covered: Insurance regulation – Asia edition
Read moreCrypto: issues for solicitors and their PI insurers
We explore the types of work lawyers are doing in this area, the risks this work may give rise to and issues for solicitors and their PI insurers to consider.
Read moreHow a Supreme Court ruling could cause surge in claims against directors
Ben Gold, explains how a recent Supreme Court case (BTI v Sequana) confirms company directors owe a duty to creditors if the company nears balance sheet or cash flow insolvency.
Read moreConsumer duty and claims handling – beware of sludge practices
The Consumer Duty is a new regulatory framework developed by the Financial Conduct Authority (FCA) aimed at creating a higher standard of consumer protection in the retail markets. The FCA expects the Consumer Duty to be a significant shift for the market in terms of its expectations on firms and in this blog we consider this shift in the context of insurance claims handling.
Read moreBeware unexploded bombs, proximate causes and …. the unintended consequences of adding clarity
It is not that often that the standard UK market War Exclusion, language which for decades has sat materially unchanged, is the basis of a declinature by insurers. The recent case of Allianz Insurance plc v University of Exeter is therefore particularly interesting as the Court was asked to interpret this language and decide whether BI losses arising from the controlled detonation of a WWII bomb, discovered on nearby property were excluded from cover
Read moreA matter of interpretation – the Supreme Court look at contractual interpretation once more
In their recent Judgment in Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retails Ltd [2023] UKSC 2 the Supreme Court adopted a commercially balanced interpretation of a lease; rejecting the overly textual approach of the Court of Appeal in favour of reading the relevant clause in the context of the lease as a whole.
Read moreYour statement or mine? Witness statements under Practice Direction 57AC
The judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) has highlighted, in no less than 36 paragraphs on the matter, the importance of ensuring compliance and understanding of Practice Direction 57AC - Trial Witness Statements in the Business and Property Courts ("PD 57AC"), when preparing witness statements.
Read moreLess is not always more in the context of commercial insurance clauses
The recent Court of Appeal judgment in Al Mana Lifestyle Trading LLC v United Fidelity Insurance Co PSC [2023] EWCA Civ 6 is a quick read on a relatively short point and serves as a useful recitation of the rules of interpretation in the context of insurance policy wordings.
Read moreThe collapse of FTX: lessons for many
From investors to regulators, FTX Trading Ltd (FTX) filing for bankruptcy was unexpected by all. A catalyst for litigation and regulation over the years to come, this collapse will serve as a warning, particularly to cryptocurrency insurers.
Read moreSLAPPs – a round up of the latest developments for the SRA
The last week or so has seen a burst of activity on SLAPPs, alongside criticism of the SRA. This will be of interest to lawyers and their insurers.
Read moreThe scope of a solicitor's duty to third parties in the spotlight again
The Claimant (Mr Syed Ul Haq), via his Estate, brought claims against the Defendants for damages arising out of two frauds in connection with the same property. It is central to this appeal to understand that Rees Page Solicitors never acted for the Claimant. It is indeed for that reason Rees Page Solicitors applied for summary judgment on the grounds that the Claimant had no reasonable prospects of success. After hearing the application, on 13 December 2019, Deputy Master Lloyd, granted summary judgment on the basis that as Mr Ul Haq was not a client of Rees Page Solicitors, they did not owe him a duty of care.
Read moreWaiver of a solicitor’s equitable lien: Candey Ltd v Russell Crumpler and another
The Supreme Court has considered the circumstances in which a solicitor may waive or surrender their lien.
Read moreInsurers face claims threat from pension fund LDI crisis
The events of the past few weeks are likely to result in claims and/or pressure on commercial relationships, particularly when pension schemes conduct their triennial valuations and agree new deficit reduction plans with employers.
Read moreLien won't circumvent disclosure obligations
In Mr David Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm) the Court confirmed that solicitors cannot assert a lien so as to modify disclosure obligations under the Civil Procedure Rules in a claim for professional negligence.
Read moreCyber Insurance: Next stop, LATAM
This year BEC and ransomware top the list of cyber incidents around the world, taking an estimated 70% of the total incident response cases.
Read moreThe SRA's proposals for the use of its new fining powers
The SRA has recently acquired increased fining powers (with effect from July 2022). They are currently consulting on their new approach to imposing financial penalties on regulated firms and individuals.
Read more(Establishing a) Line of duty – Miller v Irwin Mitchell
The recent decision in the High Court case of Miller v Irwin Mitchell (2022) EWHC 2252 (Ch) has provided a helpful guide to the often complex question of when a duty of care either in contract or tort arises – a question that often arises in professional negligence claims against solicitors.
Read moreMOJ plans to impose compulsory mediation for all County Court claims
The Ministry of Justice has announced plans to impose compulsory mediation (currently a 1-hour telephone call) in small claims and, eventually, in all County Court claims. The MOJ is also considering how the civil mediation market should be regulated. We explain and critique the current proposals and encourage lawyers, their insurers and brokers to provide feedback to the MOJ.
Read moreRisks remain after Law Society guidance on solicitors' undertakings
As solicitors, we are taught from an early stage in our careers that the word "undertaking" should set alarm bells ringing. When an undertaking is mentioned, we are often encouraged to refer it to a supervisor and / or the Risk team. It is true that giving or receiving an undertaking can be fraught with risk – but this is also true of many other aspects of a solicitor's retainer. Why, then, do solicitors need to treat this area with particular caution?
Read moreCourt of Appeal confirms that conditional fee arrangements do not give rise to implied duty of good faith
The Court of Appeal has upheld a High Court decision that conditional fee agreements (CFAs) do not imply a duty of good faith on the part of the client. A firm of solicitors acting under a CFA who had been instructed by their client to settle proceedings on a "drop hands" basis, with no order for costs, was not entitled to recover costs from their client on the basis that the client had breached a duty of good faith. The ruling cautions solicitors who enter into CFAs about the risks of clients agreeing a settlement that deprives them of their entitlement to conditional fees.
Read moreMunicipio de Mariana-v-BHP – the evolution of environmental group litigation in the English courts
Earlier this month, the Court of Appeal handed down its much-awaited decision in Municipio de Mariana -v- BHP . This was an appeal by over 200,000 Brazilian claimants seeking to overturn the High Court's dismissal of £5bn group claims against BHP (England and Australia), in relation to damage arising from the 2015 Fundao dam collapse and worst environmental disaster in Brazil's history. The cases are now able to proceed in the English courts against BHP England and BHP Australia (causes of action under Brazilian law, including strict liability as an indirect polluter and fault based civil liability).
Read moreIs the FCA to blame for BSPS? MPs seem to think so
The House of Commons Public Accounts Committee (PAC) yesterday published a report entitled "Investigation into the British Steel Pension Scheme". The report makes a number of recommendations in light of its investigations in to the FCA's conduct and regulatory oversight at the time of the issues arising from the British Steel Pension Scheme (BSPS) and in particular the decision by 7,834 members to transfer to a personal pension arrangement. The report is heavily critical of the FCA's handling of BSPS and its regulatory oversight of the defined benefit transfer market generally. Given the request in the report for an update from the FCA on its progress on the various recommendations and conclusions in 6 months' time, we wait to see how the FCA reacts to yet further criticism of its handling of BSPS at a time when it is reviewing responses to the consumer redress scheme consultation.
Read moreThe Fire Safety Act – An update
Since the Fire Safety Bill received Royal Assent on 29 April 2021, it has been in limbo, waiting for its provisions to be brought into force. This has now happened, at least in part, with the publication of the Fire Safety (England) Regulations 2022 (the Regulations) made under article 24 of the Fire Safety Order (the FSO).
Read more'Big Plastic' is an emerging climate risk and a ticking time-bomb for litigation
The tangible commitment to plastics regulation and action will likely trigger a new wave of plastics-related litigation.
Read moreFCA consultation on British Steel redress scheme published
The FCA has now published its consultation paper on the proposed redress scheme for British Steel Pension transfers under s.404 of FSMA. The scope of this is wider than anticipated and the proposals contain some surprises around the lack of an opt-in process and potential involvement of FOS.
Read moreSIPPs and FOS - does the Rowanmoor decision change anything?
Last week FOS published a decision it reached last year in a complaint against a SIPP provider involving advised sales. The FOS upheld the complaint, finding that the SIPP provider should have rejected business from the regulated financial adviser, CIB Life and Pensions Limited (CIB), given, broadly, red flags available to the SIPP provider with respect to the operation of CIB's business model including that CIB was not advising on the ultimate investment within the SIPP and as a result such introductions involved a significant risk of consumer detriment. The decision has received quite a bit of press attention - but has it moved the dial for SIPP complaints before FOS or not?
Read moreThe Future of Insolvency Regulation
On 21 December 2021 the Government launched a consultation into the future of insolvency regulation. The changes proposed in the consultation document will have a wide ranging impact on the insolvency profession (and its insurers) with the proposals including: the direct regulation of insolvency firms, the introduction of a single regulatory body with powers to order compensation against insolvency practitioners and firms, a new additional requirements regime, changes to the bond regime and a public register of insolvency practitioners and firms. Many of the changes proposed require primary legislation and so it may be some time before the changes to take effect (if adopted). But there does appear to be some wind behind these proposals given they follow on from the Call for Evidence in 2019 and a more general focus on insolvency issues in the wake of the Covid-19 pandemic.
Read moreFirst English judgment on the ‘Duty of Fair Presentation’ under the Insurance Act 2015
Berkshire Assets (West London) Limited v AXA Insurance UK plc [2021] EWHC 2689 (Comm) High Court of Justice Queen’s BenchDivision Commercial Court This judgment of the High Court Queen’s Bench Division provides a welcome analysis of how the courts will approach a policyholder’s breach of the ‘Duty of Fair Presentation’ under the Insurance Act 2015 (the ‘Act’).
Read moreWhen does an arbitration clause become binding? A reminder from the English High Court in Markel Bermuda Limited v Caesars Entertainment Inc
Parties can agree and become bound by an arbitration clause in advance of the finalisation of the remainder of a contract; a recent case in the English High Court concerning an insurance policy has served as a salient reminder. The judgement also includes a thorough walk through of the law as to when an insurance policy comes into existence (Hint: it is not necessarily when the final policy wording is provided to the Insured and/or its broker).
Read moreNavigating the hazards of Part 36 offers Part 2
In our first article we looked at problems associated with settlement offers made in multiparty actions and settlement offers where the intended consequence is unclear. In this article we look at some of the issues that can be caused by the litigation process itself and upon the way the offer is made.
Read moreNavigating the hazards of Part 36 offers Part I
Most claims seek money from other people. Although such claims might be for money owed for goods and services, or compensation for loss caused by breach of contract, or compensation for injury or damage to property or for defamation, the fundamental point of the claim is that the Claimant wants to be paid, and will agree to settle if sufficient money is offered.
Read moreSubsidence mitigation: the legal principles
Subsidence: mitigating insurer’s outlay and maximising recovery prospects.
Read moreDie Hard and the importance of insurance
Insurance is at the heart of modern life; and what better way to remind ourselves of this fact, at this festive time of year, than to consider the film Die Hard and all its many insurance claims.
Read moreBuilding on renewable energy #3 – Anaerobic Digestion
Anaerobic digestion is the process by which biodegradable materials are broken down in a controlled environment. Whilst being broken down, the materials emit gas (which can be used as a source of renewable energy), and produce heat (which can also be harnessed on or near-to site). The process also leaves a waste material (digestate), which can be used as fertiliser, contributing to the circular economy.
Read moreBuilding on renewable energy #3 – Anaerobic Digestion
Anaerobic digestion is the process by which biodegradable materials are broken down in a controlled environment. Whilst being broken down, the materials emit gas (which can be used as a source of renewable energy), and produce heat (which can also be harnessed on or near-to site). The process also leaves a waste material (digestate), which can be used as fertiliser, contributing to the circular economy.
Read moreProduct Law bulletin – August 2020
Welcome to the latest edition of our product law update, this month we focus on how COVID-19 is impacting product liability regulation.
Read moreD&O – the irrelevance of the Corporate Insolvency and Governance Act
The Corporate Insolvency and Governance Act ("the Act") came into expedited effect on 26 June 2020 and is intended to maximise the chance of corporate survival and reduce the threat of personal liability on directors during this unprecedented economic crisis.
Read moreTax incentives for HK Insurance market
First proposed in December last year, the Hong Kong Legislative Council has now passed a measure that will reduce profits tax on several insurance businesses.
Read morePractical issues resulting from the impact of lockdown restrictions on BI/DSU losses
There has been much discussion about the general impact of COVID-19 on the insurance sector. In this note we highlight some practical issues (re)insurers are facing following the imposition of lockdown restrictions implemented by governments on existing or new BI/DSU losses where there is covered PD that is unconnected with COVID-19.
Read moreInternational risk team: Mediating in a time of social distancing
The new, and arguably more relaxed, government guidance notwithstanding, it seems inevitable that the COVID-19 crisis will leave people more cautious about face-to-face meetings. Nonetheless, disputes will continue, and so must efforts to resolve them.
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