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Lloyd's: Law and Practice




7.1 The standard agency agreements were designed to address an imbalance of bargaining power between agents and Names. Cromer in 1969 had criticised the disparity between the obligations of Names and agents in the forms of agreement in common use, and proposed the adoption of a model form agreement so that Names could see the extent to which theirs varied from it. Some clauses in use during the 1970s and early 1980s, excluding all liability (including for negligence) on the part of the agent, were startling in their comprehensiveness. The Underwriting Agents’ Manual issued by the Committee of Lloyd’s in the 1970s contained recommended, but not mandatory, “Heads of Agreement”. Fisher in 1980 proposed the introduction of a mandatory form of underwriting agency agreement (with provision for variety in terms as to salary, profit commission, syndicate expenses and “taking over provisions”). Mandatory standard forms of agency agreement and sub-agency agreement were introduced for the 1987 year of account1 but even as they first came into force were criticised by Neill for failing adequately to take into account the interests of the Names. There was no privity of contract between Name and managing agent except where that managing agent was also the Name’s members’ agent (a “combined agent”). The members’ agent was contractually responsible for conducting the Name’s underwriting business and partly or wholly delegated the actual underwriting to one or more sub-agents. Until the decision of the House of Lords in Henderson v Merrett 2 it was a moot point whether a managing agent which was not also the Name’s members’ agent owed a duty of care in tort in carrying on underwriting for the Name. Neill proposed the standard agency agreements currently in use, which in many respects better take into account the interests of syndicate members, and give all syndicate members direct contractual rights against the managing agent.

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