Insurance and the law go hand in hand. In many ways.
An early consideration will be whether insurance is involved for most disputes.
That may involve coverage issues, subrogation questions, acting under reservation, counterparty recovery prospects, loss record protection and reputation risk. Put briefly, an array of complex issues can arise between insurer/insured/counterparty. These require trusted, experienced advisors.
We act for primary insurance companies, mutual insurers (such as IG P&I Clubs and FDD Clubs), excess layer insurers, reinsurers, Lloyds market syndicates, hull underwriters, commercial fixed premium insurers, insurance brokers and reinsurance brokers. We act for insurers’ customers too and are acutely aware of the dynamic between insurers and insureds, ensuring relationships are preserved. Our insurance work extends across multiple insurance lines, sectors and jurisdictions.
We also have extensive experience drafting insurance policies, tweaking endorsement language, interpreting policies, as well as advising on structuring clients’ insurance portfolios. This experience has been gained by working in-house for insurers and as external counsel.
Financial institutions globally continue to be under regulators and legislators’ watchful supervision. The post-2008 Global Financial Crisis rearrangements in the US, the Brexit-related restructuring of financial institutions in Britain and Europe, and the recent Australian Royal Commission into the Banking, Superannuation and Financial Services Industry, are all examples. The current US approach towards banking sector deregulation possibly bucks that trend, although there remains significant, multi-layered oversight throughout the US.
These macro events impact on underwriting and claims. They exemplify why it is important legal advisors understand the inner workings of financial institutions and the regulatory context in handling related insurance work. Our lawyers have been involved in many high profile cases, including major litigation that followed the HIH insurance collapse in Australia defending a leading reinsurance broker, acting for primary insurers in multiple reinsurance coverage disputes, and handling a regulatory investigation into a major bank’s pension policies for primary insurers. We also have corporate experience acting for an international foreign exchange trading company in large-scale cases in England and the US.Back to top
We have advised primary insurers on various professional indemnity cases involving financial advisers, accountants, lawyers and other professionals. These cases require careful and efficient management, meeting insurer service levels and expectations.
In these portfolios, coverage (or indemnity) issues often arise, with the non-disclosure of information material to the assessment of an underwriter’s risk – a typical issue we see. The interplay between an insurer’s coverage position and their commercial interests with that customer sometimes requires a deft hand. In other times, a well-reasoned withdrawal of cover is needed.
We also have in-house secondment experience with a top-four global accountancy firm and part of that work was assessing insurance cases with their primary layer insurers.Back to top
Directors and officers liability cases are multi-faceted and an interesting sub-set of insurance work. Typically, there is a range of stakeholders involved in the dispute and competing interests. Primary insurers, excess or following market, the corporate insured, the individual directors/officers, and the counterparty and/or regulator that has initiated the claim.
We can handle the full life-cycle of a D&O matter, from interfacing with an investigating regulator, whether as primary insurer counsel or for the corporate client, advising on coverage issues, identifying issues between the corporate insured and individual directors, defending any litigation that may be initiated and seeking a resolution. We also act for directors and officers as individuals that might require separate counsel.Back to top
A core part of our firm’s competency is in technology and construction cases. We have extensive experience in this field. Many of our cases have been for primary insurers, and we have also been retained by the corporate client, taking on their insurer as a client with interests aligned and no coverage issues arising.
Construction projects can have layers of insurance. It can be fragmented. There can be double insurance with sub-contractors’ insurers. Sub-contractors may or may not be covered under head policies. Construction cases can be accident in nature, contractual, project management and/or delay based. Understanding how the insurance portfolio for a complex project knits together requires experience and skill at dealing with complicated disputes.
As examples, our lawyers have worked on a catastrophic train derailment case that ran for six years in the Technology and Construction Court in England, defended a designer and manufacturer of equipment for a power plant, and on a case involving undisclosed losses of the multinational construction that rebuilt Wembley Stadium – all on instructions from primary insurers. On our Construction sector page, we provide further detail of our experience in this field.Back to top
Our firm’s standing and presence in marine insurance is market leading. We are recognised as a top firm in this field in Legal 500 UK & US, and Chambers & Partners in England and the US. The only law firm to have received this outstanding recognition and have one of our partners recognised in both jurisdictions.
There are various aspects to marine insurance. Those include Hull & Machinery (H&M), Protection and Indemnity (P&I) Club, fixed premium insurance, cargo insurance, War Risks, Loss of hire cover, insurance for legal costs (FDD), crew cover and other bespoke extensions. It is uncommon to find such a strong insurance capability combined with the shipping experience. We see this is a differentiator for us. Please see our Shipping page for full details of our capability.Back to top
Ordinarily a primary insurer, and to some extent the following excess insurers, will have responsibility for handling the underlying claim with insureds. Any coverage issues between insurers and reinsurers are typically placed under reservation as the matter is defended.
If a coverage issue does arise between insurer and reinsurer, it can involve difficult policy interpretation issues, questions on the extent of coverage, and less often disclosure issues from the timing of writing the risk. As an example, we advised on a $20m reinsurance dispute concerning liquidators’ expense insurance for primary insurers against reinsurers and involved four years of negotiations and work. We have also advised on the degree of a risk required for financial reinsurance to be considered as insurance and not a loan arrangement – one of the key issues in the HIH collapse relating to how FAI Insurance improved its bottom line before the takeover.
Reinsurance disputes are often subject to private arbitration agreements. Our market-leading Arbitration group puts us in a formidable position to ensure that the arbitral strategies and procedural tactics are well devised and executed, building upon our understanding of how reinsurance and its market works.Back to top
Representation of a major European insurance group in arbitral proceedings against a major American insurance group regarding reinsurance claims arising from a global insurance programme (EUR 8 million, VIAC).
Advised an international bank on issues arising from the cancellation of a trade credit facility, assignment of a related insurance claim and pursuing assets of the borrowers (oil traders) in various jurisdictions across the world, including England, Singapore and Belize.
Advised a Norwegian chartering company, as borrowers, in relation to an alleged default under a trade finance loan agreement. Client’s financiers commenced the claim in the High Court of England of Wales, seeking approximately US$1.5m.
Advising a leading Austrian insurance group in employment law and industrial relations matters in connection with the restructuring of its group companies.
Advising an Austrian fund manufacturer with regard to employment law and industrial relations matters, including shop agreements and employee data protection.
Assisting an Austrian federal development and financing bank regarding day to day employment law questions.
Ongoing support of an Austrian Insurance company in connection with their day-to day employment matters, including: (1) home-office regulations for different circumstances; (2) insurance and working time issues in case of the employee’s absence due to long illness and (3) the intended posting of employee to another EU country, covering advice related to the applicable employment laws and social security provisions.
Assessing the laws on lifting the corporate veil on companies in Mexico for a major shipping demurrage case, where the underlying cargo interests were not in a position to accept delivery and the vessel carrying crude ended up waiting for months before discharge could occur (USD 3+ million).
Acted for the runoff company of a large state insurer as the re-insured in a reinsurance coverage dispute concerning liquidators’ expense insurance with a leading international reinsurer.
Advised a P&I Club on the International Group of P&I Clubs Pooling Agreement and reviewed various shipping related contracts for P&I cover.
Advised the runoff company of a large state insurer in relation to a fraudulent non-disclosure indemnity dispute which was multi-layered, complex, with a financial advisory company seeking indemnity for over 300 claims made against its various financial/investment advisers.
Supporting an insurance company with regard to its pensions schemes offered to employers.
Advised major European shipping company on the provision of an insurance product in England, Australia and the United States.
Supporting an Italian insurance company with regard to the members of the board of its Austrian subsidiary.
Advised an international reinsurance broker involved in large-scale civil litigation brought by the liquidators of HIH in the Supreme Court of NSW.
Acted in a major English Technology and Construction Court claim for French-based international insurers following a catastrophic train derailment in the Midlands, UK. We handled the regulatory investigations into the accident and the litigation. Devised our client’s litigation strategy and the key contractual defences. After six years the case successfully resolved.
Advised the primary D&O insurer of one of Australia’s largest construction companies in relation to a claim for alleged non-disclosure of material market information on losses sustained by the insured on a construction project. The matter was brought as a class representative action in the Federal Court of Australia, and involved the company and its directors/executives.