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1781E Insurance Annual Review 2016

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1781E Insurance Annual Review 2016 DISPUTE RESOLUTION 2016 REVIEW LEGAL GUIDE INSURANCE AND REINSURANCE January 2017 DISPUTES CONTENTS page Preface . 04 New Legislation Insurance Act 2015 comes into force . 05 Insurance Act 2015: shifting the balance . 08 New right for policyholders to claim damages for late payment of insurance claims . 15 Better rights against insurers of 'insolvent' entities – finally here . 17 Getting insured values wrong under the Insurance Act 2015: disentangling avoidance, average and proportionate remedies . 20 Insurance & Reinsurance ARC Capital Partners Ltd v Brit Syndicates Ltd & Ors High Court construes "in any way involving" in liability policy . 23 Elizabeth Frasca-Judd v Galina Golovina Insurers' subrogation rights in relation to leasehold premises revisited . 26 Carl Heneghan (Son & Executor of James Leo Heneghan, Deceased) v Manchester Dry Docks Ltd & Ors Court of Appeal decides that the Fairchild causation exception applies in lung cancer cases . 29 Ewart Charles Legg & Ors v Sterte Garage Limited, Aviva UK Ltd Court of Appeal reminds insurers of cost risk in defending insureds . 32 Mutual Energy Ltd v Starr Underwriting Agents Ltd Non-disclosure clauses: When is a non-disclosure "deliberate or fraudulent"? . 35 AIG Europe Ltd v OC320301 LLP & Ors Court of Appeal construes aggregation provision in minimum terms and conditions of professional indemnity insurance . 37 The Mayor's Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd & Ors August 2011 riots: Consequential losses not recoverable under the Riot (Damages) Act 1886 . 40 Axa Corporate Solutions Assurance SA v Weir Services Australia Pty Ltd Commercial Court finds England to be the natural forum for a dispute involving a global insurance policy but that dual proceedings in Australia not vexatious or oppressive . 43 Connect Shipping Inc v Sverige Anfgartygs Assurans Forening (The Swedish Club) & Ors Timing of Notices of Abandonment and costs to be considered for a constructive total loss . 45 Campbell v Peter Gordon Joiners Ltd Supreme Court declines to pierce corporate veil for an employer's breach of its duty to procure appropriate employers' liability insurance . 48 Versloot Dredging BV and another v HDI Gerling Industrie Versicherung AG & Ors Supreme Court rules that a "collateral lie" is immaterial to the insurance claim . 50 02 HERBERT SMITH FREEHILLS CONTENTS page Motor Insurer's Bureau v Moreno Supreme Court finds level of compensation for victims of uninsured motor accidents within the EU to be determined in accordance with the law where the accident happened . 54 Great Lakes Reinsurance (UK) SE v Western Trading Ltd Court of Appeal confirms insured's entitlement to a declaration of indemnity for cost of reinstatement of property damaged by fire . 56 MIC Simmonds (Lloyd's Syndicate 994) v AJ Gammell (Lloyd's Syndicate 102) WTC and Aggregation: The meaning of "arising from one event" . 59 Impact Funding Solutions Limited v AIG Europe Insurance Ltd Supreme Court finds solicitor’s liability to litigation funder excluded under professional indemnity policy . 61 Spire Healthcare Ltd v Royal & Sun Alliance Insurance Plc High Court construes wording as aggregating language to give effect to limit of liability . 62 Professional Negligence Ocean Finance & Mortgages Ltd & Another v Oval Insurance Broking Ltd v Senior Wright Limited, Senior Wright Indemnity Ltd Slow out of the block (notifications), costly for brokers . 64 Bacciottini and another v Gotelee and Goldsmith (A Firm) Court of Appeal confirms Claimants entitled to only £250 damages having successfully mitigated own loss . 66 Playboy Club London Ltd & Ors v Banca Nazionale Del Lavoro SPA Court of Appeal gives guidance for bankers' references . 67 Tiuta International Ltd (in liquidation) v De Villiers Chartered Surveyors Ltd Causation in valuers' negligence claims: Extent of loss recoverable from negligent valuer in the context of a refinancing loan . 69 O'Hare v Coutts High Court dismisses mis-selling claim and clarifies standard of care required of financial advisors . 72 General Interest Commercial Management (Investments) Ltd v Mitchell Design and Construct Limited and another UCTA reasonableness test may apply even where contract is only partly on standard terms . 77 Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd High Court gives effect to Claimant’s Part 36 offer for 95% of claim value . 79 Gentry v Miller, British Gas Trading Ltd v Oak Cash & Carry Ltd Court of Appeal decisions show continuing tough approach to procedural failings . 81 Webb Resolutions Ltd v Countrywide Surveyors Ltd Decision highlights costs risk in issuing a claim form which is not then served . 84 HERBERT SMITH FREEHILLS 03 page Brown v BCA Trading Ltd Use of predictive coding for e-disclosure endorsed by High Court . 85 MWB Business Exchange Centres Ltd v Rock Advertising Ltd Court of Appeal confirms that contracts which expressly prohibit oral amendments may nevertheless be amended orally . 87 Hayward v Zurich Insurance Company Plc Supreme Court holds that a settlement may be set aside for fraud even if fraud was suspected . 89 Final report in Lord Justice Briggs’ Civil Courts structure review . 92 In The Matter of RBS (Rights Issue Litigation) High Court applies narrow interpretation of “Client” for purposes of legal advice privilege . 95 English law contracts post-Brexit: What changes should commercial parties expect? . 98 Regulatory Brexit: Overview of implications for the insurance sector . 103 Brexit: Impact on EEA insurers and non-EEA headquartered groups . 105 Post-Brexit access to the single market: an explanation for UK (re)insurers . 109 Cass compliance for Insurance Intermediaries – some enforcement learning points . 114 Product Liability Our guide to product liability and product recall insurance . 117 3D Printing: The legal implications of an emerging new technology . 124 Howmet Ltd v Economy Devices Ltd End-user of defective product prevented from bringing a claim when it has knowledge of the defects . 128 Health & Safety New sentencing guidelines for corporate manslaughter and health and safety offences come into force . 130 R (HSE) v Merlin Attractions Operations Ltd Alton Towers owner fined £5,000,000 following 'the smiler' crash . 133 Alternative Dispute Resolution Sang Kook Suh v Mace (UK) Ltd Court of Appeal decision endorses broad view of without prejudice protection . .135 R (on the application of Wildbur) v Ministry of Defence Two High Court decisions illustrate broad application of without prejudice protection . 137 Ferster v Ferster Court of Appeal finds settlement offer not subject to “without prejudice” protection as it amounted to an unambiguously improper threat . 139 UK: Civil Courts structure review recommends expanded role for ADR . 141 Contributors . 143 Contacts . 144 PREFACE 04 HERBERT SMITH FREEHILLS PREFACE Our Insurance Annual Review brings together contract and insurance contract law will not be affected, there may be other implications for particular aspects of parties’ contractual various bulletins and briefings that we have relationships, including how certain terms may be interpreted, produced over the last twelve months . We hope whether any termination rights may be triggered and questions that this will be a useful single source of reference relating to jurisdiction and enforcement of judgments . Our articles explore both these implications as well as the regulatory impact to our clients with an involvement or interest in of Brexit . relevant developments in the insurance and reinsurance market . We hope that you find our Annual Review of use . Should you need further hard copies (soft copies are available on the Herbert Smith 2016 will undoubtedly be remembered as a year of significant and Freehills website) then please contact me or any member of the fundamental developments for the UK insurance market with both insurance and reinsurance disputes team . the Insurance Act 2015 coming into force and the UK’s vote to leave the EU . We look at the potential impact of both of these key It is a fascinating time to be practising insurance law but we developments in a number of the articles in this Annual Review but recognise that we are only able to do that with your continued it will only be over the coming months and years that the true support . Thank you from the whole team here for that support . impact of both will be seen . We have been assisting clients from We look forward to assisting you during the turbulent times ahead . across the market as they face the challenges that the shifting landscape brings . Paul Lewis +44 20 7466 2138 As the Insurance Act 2015 is the most significant reform of paul lewis@hsf. com. UK insurance law in over a century, there is a risk of overlooking two other significant legislative changes which occurred this year: the Third Parties (Rights Against Insurers) Act 2010 finally came into force and the Enterprise Act 2016 received royal assent giving policyholders, for the first time, the right to claim damages for late payment of insurance claims . We look at the practical implications of both of these in this Annual Review . The courts dealt with some familiar issues in insurance disputes this year including the construction of terms, aggregation, subrogation rights and fraud . The trend for relatively few reinsurance disputes making their way into the courts continued . More generally, the courts have continued to grapple with questions such as the scope of privilege, the application of CPR Part 36 and how to approach procedural failings post-Denton . Aside from these relatively routine issues, the courts have also been looking at the novel issues around use of predictive coding for e-disclosure . In Pyrrho Investments Limited & Anr v MWB Property Limited and Others [2016], the High Court expressly approved use of predictive coding for a large disclosure exercise . As noted in Master Matthews’s decision, predictive coding has to date been used relatively infrequently in English litigation . However, Herbert Smith Freehills is among a small number of firms that have already employed the technology in large-scale disclosure exercises in England .
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