Insurance Law Monthly

The issue in Gard Marine & Energy Ltd v Lloyd Tunnicliffe [2009] EWHC 2388 (Comm) was whether a reinsured domiciled in Bermuda could bring an action in England against reinsurers domiciled in Switzerland. In resolving that issue, Hamblen J had to determine whether payment under a reinsurance agreement is to be made to the reinsured or to brokers acting for the reinsured.

The Brussels Regulation, Council Regulation 44/2001, confers upon an assured a choice of jurisdictions in which to bring proceedings against an insurer. Most significantly, the assured has the right to sue in the Member State of his own domicile, and that is a right that he will normally opt for. There is an extension in motor insurance cases, so that the victim has the right to sue the insurers of the wrongdoer in the Member State of the victim’s own domicile. The issue in Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG [2009] EUECJ Case C-347/08 was whether that right extended to the victim’s statutory assignee.

In Wickham Van Eyck v Norwich Union Insurance Ltd [2009] EWHC 2625 (Comm) the assured procured a policy which provided cover for the assured’s costs in litigation. Cover applied in a number of situations, one of which was that the claim made by the assured against the third party arose out of a contract for the provision of services. The question – familiar in the context of liability insurance – was whether the claim made by the assured against the third party fell into that category. Simon J held that the manner in which the assured has framed his claim against the third party is not conclusive of the matter.

It is in the interests of an insurance company in run-off to dispose of outstanding claims as soon as possible so that the business can be shut down completely. Where the business consists of short-tail claims – property damage and the like..

The Legal Expenses Directive, Council Directive 87/344/EEC, implemented into English law by the Insurance Companies (Legal Expenses Insurance) Regulations 1990, SI 1990/1159, is designed to protect the assured in the event of a conflict of interest created for the insurers where the find themselves obliged to fund the assured’s proceedings but at the same time are also the liability insurers of the person against whom the proceedings have been brought. This problem is resolved by requiring the insurers to operate a separate organisation, or by imposing a ‘Chinese wall’ so that there is no risk of any conflict, or by permitting the assured a free choice of the lawyers who are to press the case on his behalf. The question in Eschig v UNIQA Sachversicherung AG [2009] EUECJ Case C-199/08 was whether the right of the assured to insist upon his right to choose a lawyer operates where his claim is one of many and forms a part of a class action.