Insurance Law Monthly

The decision of Burton J in IRB Brasil Resseguros SA v CX Reinsurance Co Ltd [2010] EWHC 974 (Comm), an appeal from an arbitration award, raised a series of key questions of reinsurance law: what is the meaning of a qualified ’follow the settlements clause’, how are losses arising over a period of years to be allocated as between those years, and what was the meaning of ‘event’ in the ultimate net loss clause of an excess of loss reinsurance agreement.

In Churchill Insurance Co Ltd v Wilkinson and Ors [2010] EWCA Civ 556 the Court of Appeal has referred to the European Court of Justice important questions as to the ability of a policyholder to enforce a judgment against an uninsured negligent driver where the policyholder had permitted the use of the vehicle. In so doing the Court of Appeal overturned the reasoning of the first instance decision of Blair J in favour of the policyholder. The only reasoned judgment was given by Waller LJ, but Lord Neuberger MR and Wall LJ agreed with his analysis.

Under CPR 25.13 the court can order the claimant company in legal proceedings to provide security for the costs of the defendant if the court is satisfied that ‘there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so’. Today , many claimants are funded by ATE insurance, which provides an indemnity to the claimant for his own costs and those of the defendant if the claim is lost. Does the existence of such a policy mean that there is no reason to believe that the claimant will not be able to meet any costs order? Akenhead J in Michael Phillips Architects Ltd v Riklin [2010] EWHC 834 (TCC) felt that an ATE policy was not sufficient security for a defendant.

In Jones v Environcom Ltd (No 2) [2010] EWHC 759 (Comm) David Steel J analysed the duty of a broker in ensuring that the assured is aware of the scope of his duty of disclosure. The case also shows that the fact that a broker is in breach of duty does not mean that there is liability: if the risk would, with disclosure, not have been insurable, then it cannot be said that the broker’s breach has caused any loss.