Insights & Events

Wynterhill is a law firm dedicated to acting for insurance policyholders, and just that.

We aim to provide thought leadership when it comes to protecting policyholder’s interests.

Our articles have been prepared to provide practical guidance on various aspects of insurance issues and policy drafting.

Case Comment

Aggregation: narrowed further following Baines & Anor -v- Dixon Coles & Gill [2021]

14.9.21 INSIGHTS

In August 2021 the Court of Appeal considered an aggregation dispute arising from clause 2.5 of the Solicitors Minimum Terms and Conditions (“MTC”) for professional indemnity insurance.

The judgment in Baines & Anor -v- Dixon Coles & Gill (A firm) & Ors [2021] EWCA Civ 1211 (“Baines”) has provided important guidance on when multiple claims can be aggregated to form one claim under the solicitor firm’s professional indemnity insurance policy. It significantly reduces the scope for aggregation and will be a cause for concern to insurers of primary layers in the solicitors’ professional indemnity insurance market. It will, however, be welcome news to insureds facing multiple claims and to their excess layer insurers.

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Curtiss & Ors v Zurich Insurance Plc: Allegations of fraud and disclosure pilot scheme issues

13.8.21 INSIGHTS

On 16 July 2021 Judge Keyser QC handed down his reserved judgment on disclosure issues relating to a claim for punitive damages against Zurich, heard as part of a Costs and Case Management Conference (“CCMC”).

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Stick or Twist time for the FCA, whilst Insurers face further loss of Appeal.

18.9.20 INSIGHTS

Some thoughts on Next Steps in the FCA Test Case

Shortly after 10.30am on Tuesday 15 September 2020, victory was announced. Law firms stormed the Web to be the first to describe the policyholder triumph in the FCA’s Test Case on business interruption cover. But then odd things began to happen. By the end of the day, shares in Hiscox, one of the vanquished Insurers, were valued 15% higher than earlier that morning. Over the next few days reports emerged of individual Insurers posting loss reserves on business pertaining to the case in the region of £100million. Hold on: hadn’t they been told to pick up the tab for an economic catastrophe in which no-one now really pays attention to figures below £10billion? Are we the victims of fake news? Let’s have a look.

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Insurer’s arguments fail to impress the Court of Appeal

09.3.20 INSIGHTS

The Court of Appeal has rejected the insurer’s appeal in the fire damage claim of Endurance Corporate Capital Ltd v Sartex Quilts & Textiles Ltd [2020] which concerned issues relating to the reinstatement basis of indemnity for property losses; whether there had to be an intention to reinstate; and the issue of betterment.

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Insight: Blog

Blog: Civil Justice Council (‘CJC’) review of Pre-action Protocols (PAPs): is it time we had a specific Protocol for insurance coverage disputes?

17.12.20 INSIGHTS

The CJC is conducting an important review of all Pre-Action Protocols and has asked for market participants to complete an on-line questionnaire by Friday 18th December 2020:

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Construction Law Update

Building Contracts in the Covid-19 World

02.8.20 INSIGHTS

The need to get the Building Contract right is not a novel concept. Employers and Contractors alike are familiar with the challenge of getting to grips with pages of Special Conditions, operating as amendments to already lengthy Standard Forms. The “new normal” world introduces a new dimension to this challenge – that of understanding the additional economic risks caused by Covid-19.

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Claims Handling

Zurich’s Claims Commitment: a positive step forward in creating a clear and transparent claims protocol dealing with policy coverage, there is still more to be done

28.7.19 INSIGHTS

Zurich’s large and complex loss team should be applauded for setting out in “blue and white” on page 14 of the claims journal their claims commitment which involves (amongst other things) a promise to:

– Provide “an initial view” on policy liability within 48 hours of first notification if “it is clear what caused the incident”;

– Hold a “conference call” with the policyholder and their broker within 5 days to agree a claims strategy;

– Inform the policyholder what further information is needed to confirm cover within 7 days of first notification; and

– Provide an “initial view about paying your claim” within 72 hours of receiving the information needed.

These are bold and market leading promises from the policyholder’s perspective and another example of Zurich’s market leading claims team’s culture of “trying to support policyholders” and raise the claims handling standard, great to see.

The purpose of writing this blog is to share with my network a few observations that might, I hope, lead to further improvements.

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Insight: Notification

Hiding under the blanket (notification)

11.2.19 INSIGHTS

Those of us who deal with insurance tend to attach undue significance to individual words or short phrases. I have lost count of the number of articles I have seen, following some court decision, trumpeting something along the lines of “now we know what an ‘event’ is?” Usually a review of the judgment confirms that we already knew what an event was: the court having yet again reached for the dictionary and recited the relevant definition while lamenting that it has been asked to opine on the meaning of a word in the abstract and outside its contractual and factual context.

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Insight: Cyber Cover

Cyber Insurance – getting to grips with the challenge

13.4.18 INSIGHTS

Cyber risk is real

Cyber breaches unfold within the hyper real time of our globally networked environment.

Your entire businesses can freeze in an instant, its revenue streams stopped dead.

Your customers, used to everything “on demand”, may walk away if you don’t fix things fast.

Your regulators will demand instant responses to leaks of confidential information.

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Insight: Policy Drafting

Modifying your Insurance Policy language to keep it Fit for Purpose

13.4.18 INSIGHTS

Much of the discussion of the Insurance Act 2015 (“the Act”) might have been designed to induce complacency in policyholders, especially when it comes to navigating the infamously treacherous waters of pre-contractual disclosure.  No longer, some have argued, will policyholders be held hostage to “technical” breaches of those hard to fathom rules.

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Some quick checks that may help improve your insurance covers

13.4.18 INSIGHTS

Here are some easy questions to ask about your insurance covers. The answers to them may give you the opportunity to ask for better cover at no additional cost. This is because all you will be asking for is that the policy language clearly reflects what, in all fairness, ought to be the intent of the cover. There should be no additional charge for a policy wording that is fit for purpose.

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Innocent non-disclosure/anti-avoidance clauses – still fit for purpose?

23.4.18 INSIGHTS

The Insurance Act 2015 is supposed to make it more difficult for insurers to avoid policies. This is particularly good news for those insureds whose policies also say that insurers will not avoid the policy unless the insured has been guilty of some form of misconduct in the disclosure process. Those lucky insureds will consider themselves doubly protected. However, that double protection may not work if the drafting of the policy has not recognised the innovations of “the duty of fair presentation”.Read More

Poor relations (a rant about aggregation)

13.2.19 INSIGHTS

The Supreme Court of New South Wales has become the latest judicial body forced to try not to appear baffled when confronted with the word “related” in an aggregation clause (Bank of Queensland v AIG Australia Ltd [2018] NSWSC 1689).

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Insight: Insurance Act 2015

The Reasonable Search

13.4.18 INSIGHTS

The Insurance Act 2015 (“the Act”) makes a serious effort to mitigate the risk of policies being avoided by way of “technical” breaches of the insured’s obligation to give pre-contractual disclosure. But any new framework comes with a price: in this case opportunities for insurers to work within that new framework to create new arguments for avoiding policies and refusing to pay claims.

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Identifying the “Insured”

13.4.18 INSIGHTS

Why it matters

“The [Marine Insurance Act 1906] is written in clear, forthright terms which can constrain the courts’ ability to develop the law.”

This criticism was made in the “Explanatory Notes” provided to members of the House of Lords when scrutinising the Insurance Bill which became the Insurance Act 2015 (“the Act”). The criticism is pregnant with the suggestion that a virtue of the new Act was that it would be less clear than, and more malleable by the courts than, the earlier legislation. Whether that objective is of comfort to those who have to apply the Act is open to question. It is certainly the case that, in one fundamental respect, the Act is ambiguous.

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Looking the Gift Horse in the Mouth

13.4.18 INSIGHTS

Be careful what you wish for…..

Much of the discussion of the Insurance Act 2015 (“the Act”) might have been designed to induce complacency in policyholders. They might legitimately conclude that this piece of legislation was a gift from the gods to remedy the perfidy of insurers. This is particularly so when it comes to navigating the infamously treacherous waters of pre-contractual disclosure.  No longer, so it seems, will policyholders be held hostage to “technical” breaches of those hard to fathom rules.

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The 2015 Insurance Act Black Hole – Arbitration Clauses again?

13.2.19 INSIGHTS

“Where are the 2015 Insurance Act cases?”, is something I have heard everywhere I have been (even, once, on the beach in Cyprus). The obvious, tactless answer would be to invite the questioner to look inwards for the answer, but there is a potentially serious question lurking behind the anecdotal comments of so many.

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We are delighted to accept invitations to give talks and training on topics suggested by clients, brokers, broker networks and trade associations.

Providing support in relation to the concerns and issues that you have is fundamental to our philosophy of providing flexible, individually-tailored, legal services. However, we would also be delighted to suggest issues on which it might help you to hear the insights we are able to offer on policy drafting and insurance claims. Recent talks and seminars include:

“Easy wins in policy negotiations – points insurers should concede without (much of) a fight”

“The Insurance Act 2015: preparing for insurers’ new options for contesting claims and conducting claim investigations.”

“Complying with your policy obligations: tips for avoiding traps”