News

July 1, 2019

The Good, the Bad & the Ugly: 100 cases every policyholder needs to know. #6 (The Bad). Orient-Express Hotels v Generali

Welcome to the latest in the series of blogs from Fenchurch Law: 100 cases every policyholder needs to know. An opinionated and practical guide to the most important insurance decisions relating to the London / English insurance markets, all looked at from a pro-policyholder perspective.

Some cases are correctly decided and positive for policyholders. We celebrate those cases as The Good.

Some cases are, in our view, bad for policyholders, wrongly decided, and in need of being overturned. We highlight those decisions as The Bad.

Other cases are bad for policyholders but seem (even to our policyholder-tinted eyes) to be correctly decided. Those cases can trip up even the most honest policyholder with the most genuine claim. We put the hazard lights on those cases as The Ugly.

At Fenchurch Law we love the insurance market. But we love policyholders just a little bit more.

#6 (The Bad)

Orient-Express Hotels v Generali

Business interruption (BI) policies in the UK ordinarily provide for recovery of loss caused by physical damage to property at the insured premises, subject to adjustment to reflect other factors that would have affected the business in any event.

In Orient Express Hotels Ltd v Assicurazioni Generali SPA t/a Generali Global Risk [2010] EWHC 1186 (Comm), the Commercial Court held that the ‘but for’ causation test applies under standard BI policy wordings where there are two concurrent independent causes of loss, and there could be no indemnity for financial loss concurrently caused by: (1) damage to the insured premises – a luxury hotel in New Orleans, and (2) evacuation of the city as a result of Hurricanes Katrina and Rita.

Orient Express Hotels Ltd (OEH) was owner of the Windsor Court Hotel (the Hotel), which suffered significant hurricane damage in August and September 2005 leading to its closure for a period of two months. The surrounding area was also devastated by the storms, with the entire city shut down for several weeks following the declaration of a state of emergency, and the imposition of a curfew and mandatory evacuation order.

A dispute arose concerning the interpretation of OEH’s BI policy (subject to English law and an arbitration provision), which provided cover for BI loss “directly arising from Damage”, defined as “direct physical loss destruction or damage to the Hotel”. The trends clause provided for variations or special circumstances that would have affected the business had the Damage not occurred to be taken into account, “so that the figures thus adjusted shall represent as nearly as may be reasonably practicable the results which but for the Damage would have been obtained during [the indemnity period]”.

The arbitral Tribunal held that OEH could only recover in respect of loss which would not have arisen had the damage to the Hotel not occurred, and this meant that OEH was to be put in the position of an owner of an undamaged hotel in an otherwise damaged city. Since New Orleans itself was effectively closed for several weeks due to widespread flooding, with no-one able to visit the area or stay at the Hotel even if it had (theoretically) been undamaged, OEH could not recover under the primary insuring provisions for BI loss suffered during this period. A limited award of damages was made under separate Loss of Attraction and Prevention of Access extensions to the policy.

OEH appealed to the Commercial Court, arguing that the Tribunal’s approach was inappropriate given the wide area damage to the Hotel and the vicinity caused by the same hurricanes. OEH sought to rely upon principles established in: Miss Jay Jay [1987] and IF P&C Insurance v Silversea Cruises [2004], that, where there are two proximate causes of a loss, the insured can recover if one of the causes is insured, provided the other cause is not excluded; and Kuwait Airways Corpn. v Iraqi Airways Co. [2002], that, where a loss has been caused by two or more tortfeasors and the claimant is unable to prove which caused the loss, the Courts will occasionally relax the ‘but for’ test and conclude that both tortfeasors caused the damage, to avoid an over-exclusionary approach.

Mr Justice Hamblen dismissed the appeal, concluding that no error of law had been established in relation to the Tribunal’s application of a ‘but for’ causation test under the policy on the facts as found at the arbitration hearing, whilst recognising “as a matter of principle there is considerable force in much of OEH’s argument”. The insurance authorities mentioned above were distinguished as involving interdependent concurrent causes, in which case the ‘but for’ test would be satisfied. The Court did appear to accept that there may be insurance cases where principles of fairness and reasonableness meant that the ‘but for’ causation test is not applicable, but OEH was unable to establish an error of law by the Tribunal where this argument had not been raised at the arbitration hearing. Given these evidential constraints on an appeal limited to questions of law, OEH was unsuccessful in the Commercial Court.

Permission to appeal was granted, indicating that the Court considered OEH’s grounds for further challenge had a real prospect of success. Settlement on commercial terms was agreed between the parties prior to the Court of Appeal hearing.

The decision in this case has been criticised by commentators as unfair, giving rise to the surprising result that the more widespread the impact of a natural peril, the less cover is afforded under the policy. Leading textbooks (including Riley on Business Interruption Insurance and Hickmott’s Interruption Insurance: Proximate Loss Issues) express concern at this unsatisfactory outcome, noting that the ‘windfall loss’ applied by Generali under the trends clause during the period when OEH itself was affected by its own damage did not reflect the approach adopted by insurers following, for example, the earlier London bombings, or severe flooding in Cumbria in 2009. We consider that that the true intention of the London market was that, in the event of wide area damage, claims would be met up to the level that would have applied had the damage been restricted solely to the insured’s own property at the premises.

In our view, the approach taken by the Tribunal and upheld by the Commercial Court in this case is wrong in principle. It is hoped that an opportunity will arise for the English Courts to revisit this issue and adopt a fairer approach to indemnity under standard UK wordings, to remedy the potential injustice for policyholders. In the meantime, those taking out BI policies should seek amendment of the trends clause to provide for the policyholder to be put in the position they would have been “but for the event(s) causing the damage” (instead of “but for the damage to insured premises”), and to agree sufficient limits of indemnity under extensions for Loss of Attraction and Prevention of Access.

May 17, 2019

Young v Royal and Sun Alliance PLC

The Court of Session found that an insurer had not waived disclosure under the Insurance Act 2015 (“the Act”). The case is the first to be decided under the Act.

Background

A fire occurred at Mr Young’s property (“the Property”) causing extensive damage. Mr Young then claimed an indemnity from his insurers, Royal and Sun Alliance PLC (“RSA”).

RSA declined Mr Young’s claim on the basis that he had failed to disclose material information pursuant to section 3(1) of the Act.  Mr Young denied making a material non-disclosure, and, in any event, argued that RSA had waived disclosure of that information, pursuant to section 3(5)(e) of the Act.

The Market Presentation

Mr Young’s insurance was arranged by his broker by way of a 20-page Market Presentation (“the Presentation”). The Presentation was completed using the broker’s software, and identified the insured as Mr Young and Kaim Park Investments Ltd (“Kaim”).

The “Details” section of the Presentation contained the following passage, which the judge referred to as the “Moral Hazard Declaration”:

“Select any of the following that apply to any proposer, director or partner of the Trade or Business or its Subsidiary Companies if they have ever, either personally or in any business capacity:”

The Moral Hazard Declaration required the proposer to select from seven options in a drop-down menu. The answer selected was “None”.

RSA emailed the broker on 24 April 2017 in response to the Presentation (“the Email”). The Email contained a heading titled “Subjectivity”, and stated as follows:

          “Insured has never

          Been declared bankrupt or insolvent

          Had a liquidator appointed

          …”

The Parties’ positions

RSA asserted that Mr Young failed to disclose that he had been a director of four insolvent companies (“the Insolvency Information”), and, had he done so, it would not have entered into the insurance “on any terms”.

Mr Young, in response, argued that the Presentation contained no misrepresentation, as neither he, Kaim, nor any director of Kaim had ever been insolvent. Further, by referring to “the insured” in the Email, Mr Young said that RSA had waived any entitlement to disclosure of prior insolvencies or bankruptcies experienced by anyone other than the insured themselves.

RSA denied that it had waived disclosure of the Insolvency Information, as the Email did not set out any questions for Mr Young to respond to. As a result, Mr Young’s failure to disclose the Insolvency Information was unconnected to the Email. Further, RSA said that it had no knowledge of Mr Young’s prior breach of the duty of fair presentation, and, since there must be knowledge of the right before it can be waived, there had been no waiver here.

The decision – was there a waiver?

The Judge firstly referred to the pre-Act case law, which established that an assured seeking to establish waiver would need to show a “clear case” (Doheny v New India Assurance Co Ltd [2005] Lloyd’s Rep I.R. 251). This could be done in one of two ways: (1) where an insured submitted information which contained something which would prompt a reasonably careful insurer to make further enquiries, but the insurer fails to do so; and (2) where an insurer asks a “limited” question such that a reasonable person would be justified in thinking that the insurer had no interest in knowing information falling outside the scope of the question. This case concerned the latter.

In considering the issue, the Judge noted that the term “any business capacity” was capable of including other entities with which the insured was involved. The difficulty for RSA, however, was that the Moral Hazard Declaration was incomplete; although RSA had seen the answer of “None”, it did not know what the “None” referred to.

The Judge held that the Email was aimed at clarifying Mr Young’s answer to the Moral Hazard Declaration, which it achieved by stipulating the specific moral hazards that needed to be addressed. Further, the judge held that the reference to “the insured” in the Email was not limited to Mr Young and Kaim, but also covered the longer formulation contained in the Moral Hazard Declaration. So, read in this context, the judge was satisfied that no reasonable reader would have understood the Email as waiving the part of the Moral Hazard Declaration relating to “any business capacity” in which Mr Young might have acted. Accordingly, the judge held that there was no waiver.

Comments

A number of themes arise in the judgment which are of relevance to policyholders and brokers.

Firstly, the judgment illustrates the potential drawbacks of using bespoke software to place insurance. Here, it was to Mr Young’s detriment that RSA were not using the same software as the broker, the result being that RSA were unable to determine the full extent of what was being disclosed, absent further information being provided.

The judgment also demonstrates that formulations such as “any business capacity”, may, in some circumstances, be broad enough to extend to any company with which an individual insured was involved. However, it is unclear whether that same analysis would apply where insurance is taken out by a business only.

Finally, although the judgment sheds light on what is required to establish waiver, it did not consider issues of materiality or inducement, and so the question of whether RSA can make good their assertion that it would not have written the risk “on any terms” remains to be decided.

Alex Rosenfield is a senior associate at Fenchurch Law.

Court of Appeal plunges into notification issues

In a Judgment handed down yesterday, the Court of Appeal considered for the first time in over ten years issues regarding the effect of a notification of a “circumstance” to a professional indemnity policy: Euro Pools plc v RSA [2019] EWCA Civ 808 [1].

Introduction

The commercial background to the dispute was unusual. Typically, a policyholder will argue that its notification was wide in scope, so that in due course its notification will “catch” any ensuing claims. By contrast, the insurer to whom the notification was made will typically argue that the scope of the notification was narrow (or, sometimes, wholly ineffective), so that it is in a position to resist indemnifying the policyholder for the later claim(s).

Here the position was reversed. The insurer (RSA) argued that the notification in question was sufficiently wide to catch the later claims; and the policyholder argued that its original notification was very narrow, so that accordingly the claims in question could be said to arise from the (unquestionably wider) notification which it had made to its successive policy.

The reason for this apparent role reversal was the simple fact that the indemnity limit under the original policy (which was on an aggregate basis, not “per claim”) was exhausted, so that the policyholder needed to establish that the later policy (also written, as it happens, by RSA) would respond.

The facts

Euro Pools plc (“Euro Pools”) designed and installed swimming pools. One particular feature which it offered was the inclusion of vertical “booms”, which could be raised and lowered in order to compartmentalise the pool.

Initially, the booms were powered by an air drive system, whereby air would be pumped into and out of stainless steel tanks housed within the booms.

In February 2007, Euro Pools notified its 2006/07 policy (“the First Policy”) that the booms weren’t working. This was, it said, because of a perceived problem with the stainless-steel tanks. Euro Pools proposed an inexpensive solution whereby inflatable bags would be used instead of the steel tanks.

In June 2007, just before expiry of the First Policy, Euro Pools supplemented its original notification by informing RSA that, while it was continuing to replace the tanks with inflatable bags, the cost of which it expected would fall within its excess, it nevertheless wished “to ensure the matter [was] logged on a precautionary basis should there be any future problems”. [2]

Thereafter, during the course of its 2007/08 policy (“the Second Policy”, also written, as I have said, by RSA), it became apparent to Euro Pools that the inflatable bags were no more successful than the stainless steels tanks had been, and that the air drive system would need to be replaced with a hydraulic system – which would be far more expensive. Indeed, it appears that, with a view to preventing its customers from making claims against it, ultimately Euro Pools spent about £2m replacing the air drive system with a hydraulic system.

By this time, the limit under the First Policy was exhausted. The issue was therefore whether the £2m of mitigation costs had been spent in avoiding putative claims which, had they been made, would have arisen out of the circumstance(s) notified to the First Policy.

The Court of Appeal’s Judgment

Euro Pools argued that its notifications in February and June 2007 to the First Policy had been confined to a problem with the stainless-steel tanks. Relying on the principle that one cannot notify a circumstance of which one is not aware, Euro Pools submitted that when notifying the First Policy it had not been aware of a possible problem with the inflatable bags, let alone with any inherent defect in the air drive system generally, and thus could not have been notifying either of those as a “circumstance”.

That argument was accepted at first instance by Moulder J, who thus held, to RSA’s disappointment, that the Second Policy did respond. However, some commentators had criticised this decision on the basis that the Judge had confused the ability to notify a problem (here, that that the booms were not working) with the cause of that problem. As earlier cases such as Kidsons [3] and Kajima had had held, it is open to a policyholder to make a “hornets’ nest” notification – ie, a general notification of a problem, even where the cause of the problem and/or its potential consequences are not yet known.

The Court of Appeal (Hamblen LJ, Males LJ, and Dame Elizabeth Gloster) largely echoed those criticisms, and held that the notification to the First Policy had not been confined to the failure of the steel tanks and the consequential need to replace them with inflatable bags. Instead, the Court of Appeal agreed with RSA that the circumstances notified in February 2007 were that “multiple failures had taken place in relation to the [booms] and….[Euro Pools] was not sure what was causing the failures” and that the circumstances notified in June 2007 were that “in the face of continuing boom failures, Euro Pools had developed a potential solution involving the use of inflatable bags, but that it nevertheless wished to make a notification in case of ‘any future problems’ giving rise to possible third party Claims”. 

“In other words,” said the Court of Appeal, “Euro Pools appreciated that it might not have got to the bottom of the problem in the sense of understanding what the root cause of the booms’ failure was. Thus, although Euro Pools hoped that it could make the boom design work by using bags in place of tanks, and that solution would fall within the deductible, it nonetheless wanted to make a general precautionary notification.”

Conclusion

In allowing the appeal, the Court of Appeal has re-stated the orthodox approach, as set out in previous cases such as KidsonsKajima and McManus [5]. Although the Court of Appeal’s decision was undoubtedly disappointing to this particular policyholder, in the long run its approach is likely to be beneficial to policyholders since it will assist them when, as is often the case, they wish to make a precautionary notification of a problem when the cause of that problem and/or its potential consequences are as yet unknown.

Notes:

[1] The full Judgement is here: https://www.bailii.org/ew/cases/EWCA/Civ/2019/808.html

[2] This request seems to have been prompted by a realisation on the part of Euro Pools’ broker that, owing to an administrative error, RSA had not opened a claims file following the original notification in February 2007.

[3] HLB Kidsons (a firm) v Lloyd’s Underwriters [2008] Lloyd’s Rep IR 237.

[4] Kajima UK Engineering Limited v The Underwriter Insurance Company Limited[2008] EWHC 83.

[5] McManus v European Risk Insurance Co [2013] Lloyd’s Rep IR 533.

Jonathan Corman is a partner at Fenchurch Law.

March 11, 2019

Zagora Management Limited & Others – v – Zurich Insurance PLC and others

In this recent decision, the Technology and Construction Court allowed claims brought by the leaseholders under “Standard 10 Year New Home Structural Defects Insurance Policies” (“the Policies”), but rejected all the claims against the Approved Inspector.

The case concerned a development of two blocks of flats in Hulme, Manchester (“the Property”). The claimants were the freeholder, Zagora Management Ltd (“Zagora”), and 26 long leaseholders, who between them owned 30 flats. The defendants were (1) Zurich Insurance plc (“ZIP”), which had issued the Policies to the leaseholders; and (2) Zurich Building Control Services Ltd (“ZBC”), which had undertaken the role of building inspector and issued final certificates under the Building Regulations (“the Certificates”).

As against ZIP, the Claimants sought to recover under the Policies the cost of remedying a number of serious defects at the Property, pleaded at £10.9m. Zagora also sued ZIP based under what was referred to as an “agreement to rectify”.

As against ZBC, thirteen of the Claimants, including Zagora, claimed damages representing the diminution in their respective interests as the Property, on the basis that ZBC knew that the statements made in the Certificates were untrue, or was reckless as to their truth.

The claims against ZIP

(i) Zagora’s claim under the Policies

Zagora claimed that it was entitled to sue ZIP under the Policies because it had a freehold interest in the Property as a whole. By contrast, ZIP argued that Zagora was not, and never had been, insured under the Policy.

It was common ground that Zagora had never been issued with a certificate identifying it as the buyer; however, Zagora claimed that did not matter, as it became a co-insured in relation to each flat when it acquired the freehold of the Property in 2013.

Although acknowledging the ingenuity of Zagora’s argument, the Judge (HHJ Stephen Davies) had no difficulty in concluding that it was wrong. Each insurance certificate identified the buyer by name; the only situation provided for in the Policy where the buyer’s identity could change was in the event of an onward sale of the flat in question. That did not apply in this case, as Zagora’s predecessor was never issued with an insurance certificate. Further, the Policies did not allow for there to be more than one insured with separate interests in the same flat. In the circumstances, the Judge held that Zagora was not an insured under the Policy.

(ii) The leaseholders’ claims under the Policies

The Judge found that the Property was seriously defective and that the leaseholders were entitled to recover the reasonable cost of repairs. Before coming to that conclusion, however, the Judge addressed a number of issues of policy construction; in particular, ZIP’s contentions that (a) the claims were subject to a maximum liability provision (“the Cap”), and (b) the Policies did not indemnify the cost of repairs that the claimants never intended to carry out.

Zagora asserted that the Cap imposed a maximum liability of £25m. ZIP’s case, by contrast, was that the Cap limited each leaseholder’s claim to the declared purchase price of its flat, with the result that the total maximum liability was the declared value of 30 flats i.e. £3.634m. The Judge agreed with ZIP, and found that it was not unreasonable for it to have wanted to limit its cover for a 10-year policy. Accordingly, the leaseholders’ claims were capped at the total purchase price of their flats.

As to the correct indemnity, the Claimants contended they were entitled to recover the reasonable cost of repair without first having to undertake those repairs. Whereas ZIP argued that the Policies did not cover repairs which would never be carried out.

The Policy provided that ZIP would pay “the reasonable cost of rectifying or repairing the physical damage [or] the reasonable cost of rectifying a present or imminent danger”. The term “reasonable cost” was, in the Judge’s view, neutral as to whether it was a cost already occurred or a cost to be incurred. Accordingly, there was no obvious reason why it should have the limited meaning for which ZIP contended.

(iii) The “agreement to rectify” claim

Zagora claimed that at a meeting in June 2013, ZIP agreed to resolve certain defects, regardless of the strict position under the Policies.

The Judge commented that, where parties have no pre-existing contractual relationship, it would be necessary to show that they agreed on all matters essential to the formation of a contract. However, the need to do so would be less acute where there was a pre-existing contractual relationship. The difficulty here, however, was that the relationship between Zagora and ZIP did not fit neatly into either category, given that by the time of the crucial meeting, there was a dispute as to the claimants’ contractual rights under the Policy.

In any event, the Judge found that what was actually agreed between the parties was merely a “step along the road” to what the parties would have expected to be a pragmatic resolution of a serious problem, and did not represent a binding and enforceable contract. Accordingly, Zagora’s claim failed on the basis that the agreement lacked contractual certainty.

The claims against ZBC

The Claimants contended that they would not have acquired the individual flats, or (in the case of Zagora) the freehold, had they known the true position regarding the value of their interests. As their claim was brought in deceit, the Claimants were required to show not only that ZBC knew that the representations in the Certificates were untrue or were reckless as to their truth, but that they also relied on those representations.

It was common ground that ZBC knew at the time that it had not taken reasonable steps to satisfy itself that the Building Regulations had been complied with, and had thus been reckless. The issue therefore turned on reliance.

ZBC’s evidence was that it never anticipated that Zagora, as a subsequent purchaser of the freehold, would have relied on the Certificates. The Judge accepted Zagora’s evidence, and found that it was “impossible” to conclude that it intended Zagora to rely on the certificates 2 to 3 years after they were issued. Accordingly, Zagora’s claim failed.

Contrary to the position vis-à-vis Zagora, ZBC accepted that it did anticipate that the leaseholders would rely on the Certificates. However, there was a complete absence of evidence that the leaseholders or their solicitors were provided with the Certificates either before exchange or completion. Therefore, even though the Claimants were able to prove deceit on ZBC’s part, their claims also failed at the reliance hurdle.

Conclusion

The case illustrates the various complexities and challenges facing policyholders, and particularly leaseholders, when bringing claims under new home warranties. The case is also a reminder of the practical difficulties of bringing claims against Approved Inspectors. Indeed, in the recent decision in The Lessees and Management Company of Herons Court v Heronslea and others [2018] EWHC 3309 (TCC), a claim against an Approved Inspector failed, this time because Approved Inspectors were not subject to the Defective Premises Act 1972.

Alex Rosenfield is an associate at Fenchurch Law

March 7, 2019

How to Annoy Judges

There wasn’t much law in the Court of Appeal’s recent decision in Friends Life v Miley [2019] EWCA Civ 261, other than a reiteration of the principle derived from Economides v Commercial Union [1998] QB 587 that a declaration in a proposal, that information is true to the best of the proponent’s knowledge and belief, connotes only a test of honesty, and not accuracy.

However, the decision (which is reported at https://www.bailii.org/ew/cases/EWCA/Civ/2019/261.html) struck me as a textbook example of how to alienate the tribunal.

Background

Mr Miley has a high-powered, high-pressure job at an investment bank. He became (he said) to unwell too work, and for four years he received payments under a Permanent Health Insurance policy written by Friends Life (“FL”). FL then ceased making payments, contending that Mr Miley was exaggerating his condition.

Mr Miley sued Friends Life. The Trial Judge (Turner J) had been unimpressed by an application by FL that he should recuse himself because (or so FL submitted) some questions he had emailed to their QC apparently demonstrated bias. He dismissed the recusal application, and in a subsequent judgment held in favour of Mr Miley

FL appealed to the Court of Appeal, and again pursued a forensic course which seems not to have endeared them to the Lord Justices.

FL’s appeal rested on essentially two grounds.

First, they contended, as I have said, that Mr Miley had exaggerated his condition. Secondly, they contended that he had under-declared his income in the years he was receiving payments under the policy. Both grounds failed.

Exaggeration

As to the first ground, FL did not have permission to challenge the Trial Judge’s finding that Mr Miley jad not been dishonest. Despite that, FL saw fit to describe in the appeal papers a schedule of alleged misrepresentations (which of course might have been made by My Miley, if at all, merely carelessly) as “Lies”. The Court of Appeal didn’t like that.

FL also produced a separate 25-page of “Schedule of Factual Inconsistencies”, picking out further alleged inaccuracies in Mr Miley’s presentation of his condition, on which the Court of Appeal commented drily that “we were not invited to consider any of these items individually, either in the written or oral arguments presented on behalf of FL, and have not done so.”

Having managed seemingly to alienate the Court in this way, it transpired that much of FL’s case turned on the fact that Mr Miley, while contending that he was too ill to do his job, had nevertheless gone to the pub on various occasions and had been on a number of holidays.

The Court of Appeal was quick to conclude that being too ill to carry out a high-level, high-pressure job didn’t mean that one was likewise incapable of going on holiday.

It was also unimpressed by FL’s complaint that, while claiming under the policy, Mr Miley had attended a “beer festival”, instead preferring to quote this from the first instance judgment:

” … In so far as the notion of a beer festival might, to the uninitiated, conjure up images of the participants cavorting in lederhosen whilst brandishing overflowing beer steins in scenes of infectious Bavarian gaiety, they must be dispelled. In reality, this was a rather understated affair in which patrons of the local public house were given the leisurely opportunity to sample a range of craft beers.”

It was hardly a surprise that this ground of the appeal failed. Instead, the Court of Appeal held that Mr Miley’s account of the severity of his illness, in his periodic communications with FL, had been entirely accurate.

Under-declaration of Income

FL’s second ground seemed, from a “black letter” perspective, more promising. In two years in which he claimed on the policy, Mr Miley hadn’t disclosed very substantial sums represented by the vesting of shares, which he had received as part of his annual bonus while still working at his investment bank.

Mr Miley relied on the fact that the relevant forms which he supplied to FL each year while claiming on the policy didn’t require him to disclose “income from investments”.

One might have questioned – as FL certainly did – whether that was an apt description for Mr Miley’s receipt of these shares. However, the Court of Appeal was in no mood to accept that argument. Indeed, in the form of McCombe LJ, who gave the only judgement, it was highly critical of how the point had emerged at the trial in the first place:

“I have mentioned what I see as the unsatisfactory manner in which this issue arose at trial. There was no specific indication made anywhere in the pleadings or written arguments before trial that FL were relying upon a misstatement of income by Mr Miley…. The matter only arose when the subject was sprung upon Mr Miley in cross-examination. ..

 I note that no objection was taken to the unexpected line of questioning. However, I question whether the failure to make any mention of this subject in the pre-trial materials was consistent with the “cards on the table” approach encouraged by the Civil Procedure Rules. More particularly, the material deployed was being used to found a case based on alleged fraud. Such allegations are customarily required to be “distinctly alleged and as distinctly proved”. That principle was not applied in relation to this matter in FL’s pleading in the present case.”

With that as the backdrop, not only did the Court of Appeal hold that Mr Miley genuinely didn’t think his receipt of the shares needed to be disclosed, it went further and held that he was correct in that regard. It was prepared to accept that in common parlance the shares might have been described as “investments”. And it also said their vesting could be categorised as “income” since, under the relevant tax legislation, they were deemed to constitute income and were taxed accordingly.

Coda

One doesn’t know, given how unimpressed was the Court of Appeal with FL’s appeal, Mr Miley has sought his costs on the indemnity basis. But the moral – don’t try bolstering a difficult case with tactics which just annoy the Judges.

Jonathan Corman is partner at Fenchurch Law

February 21, 2019

PII: What happened in 2018?

A number of interesting cases relating to professional indemnity insurance passed through the courts in 2018, and this article looks at four of them.

Euro Pools plc (in Administration) v RSA [2018] EWHC 46 (Comm)

Kicking the year off was the Euro Pools decision in January 2018.

The insured specialised in the design and installation of swimming pools. The products that were the source of this dispute were the movable swimming pool floors and the vertical booms that enabled division of the pool.

Problems were encountered with each feature, which led to two notifications under separate professional indemnity policy periods.

In summary, the Court found that an insured can only notify a circumstance of which it is aware. Whilst that may seem obvious, it does highlight the issue that policyholders may face with claims-made policies when investigations (and problems) are developing.

Whilst this case was very fact-specific (as most notification cases are), the lesson for policyholders is to give very careful consideration to the wording of notifications. The notification of the circumstance must be appropriately framed and there will ultimately need to be a causal link between the perceived circumstance and the claim.

An appeal was heard by the Court of Appeal last month and its outcome is awaited.

Cultural Foundation v Beazley Furlong [2018] EWHC 1083 (Comm)

Cultural Foundation was another decision involving notifications over multiple policy periods.

In this case the Defendants were the professional indemnity insurers of a firm of architects that had become insolvent before proceedings were issued. The Claimants had arbitration awards against the architects and sought indemnity from the primary insurer and the excess layer insurers.

The notification dispute arose because there had been two notifications within two separate policy years. Taken together the arbitration awards exceeded the primary policy limit but individually they were within it. The Court found that the Claimants could choose the policy year to which the claim could attach because, very unusually, there was no exclusion of claims arising from prior notified circumstances.

Dreamvar (UK) Ltd v Mary Monson Solicitors [2018] EWCA Civ 1082

Dreamvar is a significant case for conveyancing solicitors and their professional indemnity insurers.

The decision by the Court of Appeal involved two joined cases that both concerned the liability of solicitors for identity fraud in property transactions. In both cases the solicitors acting for the seller had carried out inadequate identity checks. Whilst the fraud was discovered before the registration of title, the funds for the purchase had been lost by then.

While not liable in negligence, the buyer’s solicitors were found liable in breach of trust for failing to identify that the seller was not in fact the owner of the property and thus releasing the completion money when their client would not be obtaining good title. The buyer’s solicitors sought relief under section 61 of the Trustee Act 1925 on the basis that they had acted honestly and reasonably. Whilst the Court did not dispute that, it nevertheless declined to grant relief on the basis that the solicitors were better able to absorb the loss, via insurance, than could the client.

This decision clearly extends the circumstances in which solicitors can be found liable in fraudulent transactions, even when the fraud may have principally occurred as a result of the failing of the other side’s solicitors. It remains to be seen whether this principle will extend to transactions other than conveyancing.

This decision may well have an impact on the PI market. Whilst the SRA Minimum Terms will cover claims of this type, some professional indemnity insurers may simply withdraw from this market altogether, forcing up premiums for solicitors doing conveyancing.

Dalamd Ltd v Butterworth Spengler [2018]

The Claimant was the assignee of the causes of action of three companies owned by the same family. One of those, Doumac, had a recycling business which it operated from premises owned by another company, Widnes. Buildings insurance was arranged with Aviva and included an external storage condition in which combustible material had to be kept at least 10m away from buildings. Doumac had been warned about their waste management previously and had a history of minor fire incidents.

Doumac then went into liquidation and its assets and goodwill were transferred to the third company, JLS. XL provided insurance for the plant and machinery that JLS now owned.

A catastrophic fire destroyed the premises. Claims were made against Aviva and XL. Aviva sought to avoid its policy for: (i) the non-disclosure of Doumac’s insolvency and its previous fire history; and (ii) breach of the external storage condition. XL sought to avoid its policy for non-disclosure of previous incidents and warnings as to fire risk.

In circumstances where the Claimant blamed the broker for the non-disclosures, and may have recognised that claims against the insurers presented difficulties, it sued only the broker.

The Court was asked to consider two significant points in relation to causation. Firstly, in the context of a claim only against the broker and with no prior settlement at all with the insurer, whether it was enough for the Claimant just to prove that the claim under the insurance policy had been impaired and that it therefore lost the chance to claim under it. Secondly, in circumstances where Aviva had also declined cover for a reason unrelated to the broker’s negligence (the breach of the storage condition), whether determining if the claim would still have failed on that ground should be decided on a balance of probabilities or loss of a chance basis.

In relation to the first point, the Court held that, where the policyholder had elected to sue only the broker and not recovered anything at all from the insurer beforehand, it must establish on the balance of probabilities that the insurer’s denial of coverage was correct. That contrasts with the position where, before suing the broker, the policyholder had reached a reasonable settlement with the insurer. In that situation, the policyholder can sue for any shortfall in the settlement without having to prove that the insurer’s coverage defence was a good one.

On the second issue, the Court held that the insurer’s alternative ground for declining cover should be considered on a balance of probabilities basis. Consequently, the Claimant only succeeded in the claim in relation to the XL policy as it was held that, on the balance of probabilities, Aviva would have been entitled to decline indemnity pursuant to the breach of the storage condition irrespective of the non-disclosures.

Following this decision, policyholders should only pursue the broker in the clearest of cases, where there is no real doubt that the insurer’s stance is well founded. In any other situation, first challenge the insurer’s stance with a view to reaching a reasonable settlement and only then contemplate a claim against the broker for the shortfall.

Conclusion

The four cases considered here collectively represent mixed news for professionals. Solicitors dealing with property transactions will understandably be dismayed by the Court of Appeal’s decision in Dreamvar. By contrast, insurance brokers will take comfort from Butcher J’s disinclination in Dalamd to help clients to recover their losses from their broker in circumstances where the insurers’ declinature can ultimately be shown to have been unjustified. Finally, the two other cases (Euro Pools and Cultural Foundation) are reminders that the notification of a “circumstance” to a professional indemnity policy continues to represent a fertile source of disputes between professionals and their insurers.

James Breese is an associate at Fenchurch Law

February 12, 2019

Pallister Limited v (1) Fate Limited (in liquidation) (2) The National Insurance and Guarantee Corporation Limited (3) UK Insurance Limited

In this recent decision in the Queen’s Bench Division, the court examined the meaning of “property belonging to” in the context of a landlord’s insurance policy. The court also examined the scope of the decision in Mark Rowlands v Berni Inns Ltd [1986].

Palliser Limited (‘Palliser’) was the lessee of the three upper floors of 228 York Road, London (‘the Building’), which contained 7 flats. The Building was owned by Fate Limited (‘Fate’), which also operated a restaurant on the ground floor. Under the terms of the lease, Fate agreed to take out insurance that covered damage to the Building.

On 1 January 2010, a fire occurred in the restaurant as a result of Fate’s negligence, causing extensive damage to the three upper floors.

In 2016, Palliser sued Fate. The claim settled in 2017 after Fate became insolvent. Following a case management conference in March 2018, the claim was allowed to continue against Fate’s insurers (‘the Insurers’) under the Third Parties (Rights Against Insurers) Act 2010 (‘the Act’).

Palliser claimed an indemnity from the Insurers under the Public Liability section of Fate’s policy (“Section 6”), for losses suffered as a result of the fire. Two heads of loss were claimed: (1) refurbishment costs; and (2) lost profits, on the basis that Palliser had lost the opportunity to sell the 7 flats and reinvest the proceeds in subsequent developments.

There were three issues for the Court to decide:

1. Did Fate’s policy cover its liability to Palliser (the First Issue)?

2. Under the lease, did Palliser impliedly exclude Fate’s liability for negligence because Fate agreed to take out insurance that covered damage to the Building (‘the Second Issue’)?

3. Did Palliser establish that it had suffered a loss of profits?

Palliser’s claim for lost profits failed on the facts, and this article concentrates on just the First and Second Issues.

The First Issue

Fate’s policy (‘the Policy’) stated that the insured was “Fate”, its business was “restaurant”, and the risk address was “228 York Road, London”.

Section 6 provided cover for “Accidental Damage to Property not belonging to you or in Your charge or under Your control or that of any Employee”. The question to be answered, therefore, was whether the three upper floors fell within this designation.

Palliser argued that “not belonging to” had a different meaning to “not owned by”. In this regard, it said that, because it had control and exclusive possession of the flats, the property did not belong to Fate, in that sense. Further, Palliser said that the Buildings section of the Policy (“Section 9”) did not cover the flats as they were not occupied for the purposes of the business.

The Insurers argued that Section 6 did not cover Palliser’s loss, as the whole building was owned by Fate. They argued that “not belonging to you” was synonymous with “not owned by you”, and that the granting of exclusive possession to Palliser did not mean that Fate, as the landlord, was no longer an owner. They also argued that, because Section 9 provided cover for the Building, the exclusion in Section 6 for property belonging to Fate made perfect sense.

The Judge agreed with the Insurers, and found that the Building did indeed “belong to” Fate as the freehold owner. Further, the Judge said that Section 6 and Section 9 should be viewed as fitting together, with cover for the buildings (which included the upper-floors) being dealt with in Section 9, not Section 6. Accordingly, Palliser’s claims failed, subject to a small portion of the refurbishment costs for fixtures and fittings (£8,500) which unquestionably did not belong to Fate. However, that smaller sum would still be dependent on the Judge’s finding on the Second Issue.

The Second Issue

The Judge referred to this issue as the ‘Berni Inns’ defence (in reference to the case of Mark Rowlands Ltd v Berni Inns Ltd [1986] QB 211). There, a lease provided that a landlord would insure a building against fire and lay out the insurance monies to rebuild it, while the tenant was to contribute to the cost of the premium by an “insurance rent”, and was relieved from its repairing obligations in the event of damage by fire.

The building was destroyed by a fire as a result of the tenant’s negligence, following which the landlord’s insurers (using their rights of subrogation) sued the tenant in negligence. The Court of Appeal held that the covenants in the lease meant that the buildings insurance was effected for the benefit of the tenant as well as the landlord, and that the contractual arrangements precluded the landlord from recovering damages in negligence from the tenant.

Palliser submitted that Berni inns was distinguishable, as here it was the landlord which had been negligent, not the tenant. However, even if it was wrong about that, Palliser argued that the Berni Inns defence did not apply because Fate underinsured the building.

The Insurers argued that the Berni Inns defence did apply, making reference to the fact that Palliser had not paid for the insurance, and that the covenants in the lease were very similar to those in Berni Inns.

Although the Judge agreed that Berni Inns was significantly different to the present case, he did not decide whether the defence applied, and instead held that that its application had to be qualified because the building was underinsured. He held that it could not be correct that the tenant had impliedly excluded the landlord’s liability in negligence, since, if it were, there would be an implied exclusion even where the landlord failed to take out buildings insurance at all. As a result, Palliser was at least entitled to recover the £8,500 refurbishment costs.

Conclusion

The case is an interesting example of how the Act will work where insurers run coverage and liability defences at the same time.

So, on the First Issue, because the damage was covered by the property damage section, rather than the third-party liability section of the Policy, the Act did not apply.

As to the Second Issue, although the Judge found in favour of Palliser (albeit only for a small sum), it is unclear whether the outcome would have been different had the Building been adequately insured.

Alex Rosenfield is an associate at Fenchurch Law

February 11, 2019

Webinar: Notifying circumstances to claims-made policies

Partner Jonathan Corman talks about the thorny issue of notifying “circumstances” to PI and D&O policies, including:

The distinction between “loss occurring” and “claims made” policies.

The importance of being able to notify a “circumstance” as well as “claims”.

What is a “circumstance”? What’s the difference between a circumstance defined as one which “might” give rise to a claim and one “likely” to do so?

How detailed must the notification be?

What about “block” or “blanket” notifications?

The consequences of notifying late.

Watch here

January 20, 2019

Building a Safer Future: Regulatory Reform on Combustible Cladding

Following publication of the Hackitt Report in May 2018, the government has been under increasing pressure to implement effective reform of building regulations in the UK, with a focus on cladding systems to high-rise developments. Legislation has recently been introduced aimed at improving fire safety and accountability, with a range of further measures anticipated.

Building (Amendment) Regulations 2018

Regulations came into force on 21 December banning the use of combustible materials in external walls of buildings above 18 metres in height, including residential dwellings, boarding schools, student accommodation, registered care homes and hospitals (SI 2018/1230). The new rules also apply where building work is a “material change of use” that brings an existing building within one of these categories. Commercial buildings, including hotels and offices, are excluded.

The ban does not apply retrospectively to existing structures, including where a building notice or initial notice has been given to, or full plans deposited with, a local authority before the legislation commencement date, provided that building work has already started or starts within two months thereafter.

The press release announcing the ban confirms the government’s “full backing” for local authorities to enable them to carry out emergency work on private residential buildings with unsafe cladding, including financial assistance, although local authorities will be expected to recover the costs from building owners. This is not mentioned in the Regulations and seems to indicate support for councils in using their existing powers relating to unsafe buildings, pursuant to the Building Act 1984.

Approved Documents 7 (Materials & Workmanship) and B (Fire Safety)

Regulation 7 of the Building Regulations 2010 requires that materials used in building work are appropriate for the circumstances. A new sub-section 7(2) has been introduced, directing that all materials which become part of an external wall, including “specified attachments” such as balconies and solar panels, achieve European fire safety classification (A2-s1, d0) or (A1), meaning only limited combustibility or non-combustible materials will be permitted. Certain limited components are exempted by regulation 7(3), including gaskets, sealants, windows and any part of a roof.

Approved Document B has been updated to include additional guidance at paragraph 12.6 that insulation products and filler materials used in external walls in buildings of 18 metres or more “should be of limited combustibility or better”. It is no longer permissible therefore to incorporate combustible materials within masonry or concrete walls to new high-rise buildings, such as the Reynobond polyethylene core ACM panels that were used on Grenfell Tower.

Further changes to Approved Document B come into effect on 21 January 2019, clarifying the role of assessments in lieu of testing for cladding and fire safety systems. In accordance with Hackitt recommendations, use of desktop studies should be restricted to appropriate situations backed up with sufficient test evidence, with those undertaking assessments able to demonstrate suitable competence.

The government has launched a wider call for evidence to gather views on (1) more extensive changes to Approved Document B technical requirements, and (2) how residents and landlords can work together to keep their homes and buildings safe. A new Standards Committee is being established to advise on applicable rules, together with a Joint Regulators’ Group to trial proposed legislative changes.

Prescriptive Requirements

The outcomes-based approach to building regulations in the UK puts the onus on companies to operate safely, allowing flexibility and seeking to ensure that emerging risks are addressed without the need for new legislation. However, problems have been highlighted around the lack of clarity in applicable rules, with insufficiently stringent oversight to avoid low standards and damaging conflicts of interest.

Changes to Approved Document B signify a departure from the level of discretion allowed under the previous regime, and moves towards a more prescriptive regulatory framework. The use of combustible materials has not been eliminated entirely though and many commentators believe the proposals do not go far enough. A stricter system of building control applies in some other jurisdictions such as France, Germany and North America, with significantly more emphasis on prescriptive baseline requirements to protect the life safety of building users.

Industry groups are lobbying for the 18 metres requirement to be reduced and the Scottish government has pledged a similar ban for buildings over 11 metres in height, including entertainment and assembly buildings. Related concerns around sprinklers, alarm systems and alternative means of escape in high-rise buildings merit urgent reconsideration as part of integrated reforms.

Future Developments

The second phase of the Grenfell Tower Inquiry is unlikely to start until the end of 2019, according to its chairman Sir Martin Moore-Bick, with some 200,000 documents (including in relation to installation of the cladding and insulation) still to be disclosed. The first phase centred on the night of the incident, and the second will examine wider issues surrounding the fire.

Disputes over remediation of private blocks affected by potentially dangerous cladding materials are ongoing in many cases, exacerbated by complexities in proving clear breaches of applicable building regulations in order to establish liability. Stakeholders in affected properties should consider whether existing insurance, warranties or guarantees can meet the costs of cladding replacement, and seek appropriate advice from policyholder coverage specialists.

Amy Lacey is a partner at Fenchurch Law