The Newsletter of the Insurance and Reinsurance Group of 2 Temple Gardens Summer 2005

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1 On Risk The Newsletter of the Insurance and Reinsurance Group of 2 Temple Gardens Summer 2005 THE EFFECT OF INSURANCE WORDING IN SLOW BURN INJURY CASES BOLTON MBC v (1) MUNICIPAL MUTUAL INSURANCE LIMITED (2) COMMERCIAL UNION COMPANY LIMITED After a lengthy period of deliberation, judgment has finally been handed down in what Insurance Week magazine called the landmark asbestos case of Howard Palmer QC and Sonia Nolten appeared for the First Defendant. Here they discuss the judgment. The story starts with Gordon Green. In , Mr Green was exposed to asbestos dust while working for his employer in premises being developed by Bolton. He contracted mesothelioma. This became apparent in about 1990 and Mr Green died in November There was no dispute that the exposure was negligently caused by Bolton. Mr Green s claim was settled in 1998 and Bolton turned to its insurers. At the time of the negligent exposure, Bolton was insured under a public liability policy with CU, taken out in 1960 and renewed until From 1979 until 1991, Bolton was insured against PL risks with the MMI. The question which arose was whether Bolton s liability to Mr Green s estate was covered by the policy in existence at the time of Bolton s negligence, or by the policy extant when Mr Green acquired his cause of action (i.e. when damage in the form of personal injury was suffered). Most of the market had assumed that the later policy responded, allowing PL cover to be treated as having a short tail, especially when compared with the long tail of EL cover for industrial disease. However, MMI argued that the CU policy should answer. MMI had agreed to indemnify [Bolton] in respect of all sums which [Bolton] shall become legally liable to pay as compensation arising out of accidental bodily injury or illness (fatal or otherwise) to any person when such injury illness loss or damage occurs during the currency of the Policy and arises out of the exercise of the functions of a Local Authority. CU agreed to indemnify against [a]ll sums which the Insured shall become legally liable to pay for compensation in respect of (1) bodily injury to or illness of any person occurring within Great Britain during the Period of Indemnity as a result of an accident MMI argued that the phrase during the currency of the Policy applied both to the occurrence of the injury and to the exercise of the functions of a Local Authority. Thus the MMI policy only responded to acts and omissions of the Insured which occurred during the Policy period. Its major contention, however, was that the words accidental bodily injury or illness should be interpreted as occurring at the moment of Mr Green s inhalation of asbestos dust. The words accidental injury or illness referred to the accidental insult, comprising the inhalation of harmful asbestos fibres, and not to the development of medically defined illness at a later date. The argument had a number of supporting limbs: First, insurance of liability is generally understood as looking forward to acts and omissions which may occur during the period of cover. The acceptability of, and the premiums fixed for, liability risks usually depend on the insured demonstrating that it will, during the period of cover, conduct its undertaking in a particular way. IN THIS ISSUE 1. Bolton v MMI Howard Palmer QC and Sonia Nolten discuss the recent judgment. 5. Case notes 8. 2tg Insurance and Reinsurance Group

2 MMI argued that it was neither necessary, nor good jurisprudence, to assume that the interpretation of the policy wording should be the same as that applied in the context of the law of limitation of actions or of tort in relation to personal injury claims. This feature of insurance (admittedly undermined somewhat by claims made policies) should inform the proper interpretation of the wording of the insuring clause. Second, MMI argued that the inevitable, or at least unalterable, development of mesothelioma could not be described in ordinary language as an accidental bodily injury or illness. Accidental could only be interpreted as a reference to the moment of inhalation. Third, the CU wording required bodily injury to occur within Great Britain. Whilst it was sensible for Insurers to restrict cover to accidents which occurred within a certain geographical area, it made no sense to put such a restriction on the place where a mesothelioma developed. This suggested that the intention was to link the place of insult to the place of the accident, supporting the view that bodily injury occurred (for the purposes of the policy) at the moment of inhalation. This question of construction had never before been considered by the English Courts. MMI argued that it was neither necessary, nor good jurisprudence, to assume that the interpretation should be the same as that applied in the context of the law of limitation of actions or of tort in relation to personal injury claims. CU contended that the phrase bodily injury or illness must mean bodily injury or illness to a third party sufficient to give rise to a legal liability by the insured to that third party. This must be so because of the context, namely a public liability policy contemplating a liability in tort; such a liability cannot arise absent actionable injury. In Cartledge v Jopling [1963] A.C. 758, the House of Lords had said that It is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer. A cause of action does not accrue until some actual injury or damage, more than minimal, has occurred. In circumstances bearing some similarity to the present, English law had construed the words injury or damage as meaning actionable injury or damage. In Jameson v CEGB (10 March 1995, unrep), Tudor Evans J. had had to construe the expression damage or injury in a contractual indemnity and had held that it meant actionable damage or injury. In The Nukila [1997] 2 Ll. Rep. 146 Hobhouse LJ had concluded that imminence of loss or damage is not the same as damage damage is physical damage which has occurred. Thus, inhalation of harmful material could not per se amount to actionable injury; and injury could not be construed as having occurred by reason of inhalation alone. CU s position was supported by the medical expert evidence. The experts explained the processes which occur when asbestos fibres are inhaled. The body s defence mechanisms engulf and destroy or expel the fibres. This involves the death of cells mobilised by the defence mechanisms, but the experts could not describe this as any form of medical injury or illness. Similar mechanisms occurred whenever foreign bodies of any type were inhaled, and anyone in an urban area will inhale some asbestos fibres with every breath. Further, there was nothing medically wrong with a person undergoing these defence processes. For mesothelioma to develop, it is first necessary for asbestos fibres to pass from the lung to the pleura. Once there, they promote genetic alteration during cell division. Such mutations may be destroyed by the body s natural defence mechanisms. However, some will survive. Eventually, after 7 or 8 consecutive genetic alterations, a malignant mesothelial cell may develop. The defining characteristic of malignancy is the uncontrolled division of malignant cells to form a malignant tumour. At the earliest stage, the malignant cells may be destroyed by the body s defence mechanisms. However, if these defences are not successful, a mesothelioma is established. The medical experts were agreed that in medical terms, the processes of genetic alteration would not be described as an illness or injury. They considered that injury in the medical sense begins when the mesothelioma is first established. CU therefore argued that the policies responded only when the first growth of a 2 The Newsletter of the Insurance and Reinsurance Group of 2 Temple Gardens

3 mesothelioma occurred during the currency of the policy. Medical evidence indicated that this first growth was likely to have occurred approximately 10 years before the date of diagnosis, meaning the court could count back from the date of diagnosis to arrive at the date of occurrence. Since the mesothelioma was diagnosed in 1990, it first occurred in about 1980, during MMI s policy. Whilst this was a new question for the English courts, the US courts have been grappling with liability cover for asbestos risks for decades. The court in the present case was asked to consider the jurisprudence derived from those cases. It had been pointed out in various US cases that interpretation of statute law or the law of tort in the context of limitation, is quite different from the interpretation of an insurance policy: Linguistic uniformity should not dictate how contracts or statutes are interpreted... (Insurance of North America v Forty Eight Insulations Inc (1980) 633 F. 2d 1212). US decisions on similarly worded policies have provided numerous different theories as to the coverage afforded. According to the exposure theory, coverage was triggered at the moment of exposure to asbestos (MMI s argument in the present case). It was concluded in Insurance of North America v Forty Eight Insulations Inc that, for the purposes of the policy, bodily injury occurred upon inhalation. The court in part justified its decision on policy grounds: if manifestation of disease, many years after the negligent conduct, was the trigger, then manufacturers would find themselves unable to obtain insurance once it became clear that a time bomb of cases was about to explode. An alternative to the exposure theory is the continuous trigger theory, adumbrated in Keene Corporation v Insurance Company of North America 667 F. 2d.1034 (1981). The court commented that: The terms bodily injury, sickness and disease, standing alone, simply lack the precision necessary to identify a point in the development of the disease at which coverage is triggered. The fact that a doctor would characterise cellular damage as a discrete injury does not necessarily imply that the damage is an injury for the purpose of construing the policies. Thus, the court decided that every stage of the development of an asbestos-induced disease amounted to bodily injury for the purposes of triggering coverage. All policies taken out to cover Keene from the time of exposure until the manifestation of fully established diseases would respond. The disadvantage of the continuous trigger theory, at least from the perspective of English jurisprudence, is that it is unashamedly policydriven with the aim of maximising insurer liability. It is questionable whether the interpretation of a single phrase occurrence of bodily injury - could bear two meanings, namely exposure to asbestos dust and the development of mesothelioma. The third theory, requiring injury in fact, mirrored Bolton s case against MMI. This found favour in American Home Products Corp. v Liberty Mutual Insurance 748 F. 2d 760 (1984) and Abex Corporation v Maryland Casualty Company 790 F.2d 119 (1986) but was least popular in the US. MMI suggested that the reasons for this lack of popularity should lead the English courts also to reject it. First, injury in fact presupposes that it is possible to select a date during the development of a disease when a bodily change occurs, sufficiently adverse to be characterised as the contracting of the disease or occurrence of injury. This is less problematic in mesothelioma cases but leaves unresolved how an injury in fact interpretation would operate in cases of asbestosis or other diseases with lengthy latency periods. Second, an injury in fact interpretation could lead to arbitrary results for the victim. A commercial corporation becomes less likely to carry insurance as time progresses. Further, developments in medical science might alter the assessment of the date of injury in fact leading to arbitrarily different results. Finally, the US had adopted the manifestation theory that injury results under the policies when it becomes clinically evident. However, it strains language unduly to suggest that an injury does not occur until it is noticed and/ or diagnosed, an approach considered and rejected by the House of Lords US decisions on similarly worded policies have provided numerous different theories as to the coverage afforded. Summer

4 Problems will arise in applying the principles relied on in the judgment when other diseases with long latency periods present themselves. in Cartledge. Furthermore, the phrase clinically evident is not sufficiently certain because there is a distinction between the specialised meaning of asbestosis to a research scientist and the ordinary meaning of the word to a treating physician or patient (Eagle Pitcher Industries Inc v Liberty Mutual Insurance Company 682 F. 2d 12 (1982)). Once again, once manifestations begin to give rise to claims, insurers will withdraw coverage from the insured or make coverage available only at prohibitive cost. The unavailability of coverage in respect of future claims would imperil the solvency of insureds and leave future claimants without remedy. CU invited the court to disregard the US authorities on the basis that they were dictated by policy considerations which were not applicable in England, and did not speak with one voice. In a number of English Court of Appeal decisions, the reasoning of US decisions had not been adopted: the American Courts adopt a much more benign attitude towards the Insured; this seems to be based variously on the folly argument or general principles of law and equity or that insurance contracts are contracts of adhesion between parties who are not equally situated giving rise to the principle that doubts as to the existence or extent of coverage must generally be resolved in favour of the assured. Yorkshire Water v SAL [1997] 2 Ll. Rep. 21. HHJ Kershaw accepted that the US authorities were not of assistance because of the differing policy considerations and did not afford them serious consideration in his judgment. He noted also that the medical evidence given in some US cases was at odds with more up-to-date evidence given here. Nor did the Judge attach weight to MMI s arguments about the usual shape and purpose of PL policies. The existence of longtail liability was known when MMI chose its policy wording; it would have been possible to select a different wording so as to provide the cover for which it now contended. It had to be assumed that it had chosen not to do so. He preferred to confine himself to construction of the specific wording in the two policies before him and reached the following conclusions. First, the word accidental meant unintended. The development of the latent injury needed to be accidental in this sense alone. Second, liability of an insurer to pay out under a liability policy crystallised when the liability to the third party was established by judgment, award or agreement. However, it was not logical to use that principle as an aid to construction of the insuring clause. Third, the Judge followed the medical evidence given and found (in accordance with the ordinary use of language) that bodily injury did not occur at any time until the first mutating cell began to replicate uncontrollably. Fourth, he considered that there was no reason to give the word injury a double shade of meaning to include both insult and injury. Timing was addressed in the policy wording: the bodily injury (as that phrase was construed) must occur during the currency of the policy. In many respects, the judgment failed to address the full range of arguments presented. However, a clear result was obtained. The Judge decided that occurrence of injury in a liability policy must be interpreted in the context of its usage by the medical profession and of the understanding of the law of tort as to whether and when personal injury has been suffered by a victim. The court has followed the Court of Appeal s disdain for the policydriven US decisions. The decision also spells out the mechanism of the formation of mesothelioma. It has approved the means for calculating the time of first establishment of a mesothelioma by counting back from diagnosis. This will make it easier for practitioners to determine which PL policy will respond. However, problems will arise in applying the principles relied on in the judgment when other diseases with long latency periods present themselves. In cases concerning pleural plaques and asbestosis, there will be no easy way of working out when injury in fact occurs: there is no method of back calculating from manifestation to first occurrence of unseen physical injury. The courts may be left with some tricky findings of fact to make in such cases. 4 The Newsletter of the Insurance and Reinsurance Group of 2 Temple Gardens

5 CASE NOTES FRIENDS PROVIDENT LIFE & PENSIONS LIMITED v SIRIUS INTERNATIONAL INSURANCE [2005] EWCA CIV th May 2005 Friends Provident was the successor to a company, LMA, whose business included the provision of pensions advice. Sirius provided excess layer professional indemnity insurance to LMA on a claims made basis between February 1993 and January Clause 2 of the general conditions of the primary policy obliged the assured to notify underwriters as soon as possible of any circumstances that might give rise to a claim. The excess layer policy incorporated the standard AGWS Excess Wording. Clause 5 required the assured to notify underwriters immediately of any circumstances likely to give rise to a claim or loss if it appeared likely that such claim or loss might exceed the indemnity available under the primary and any underlying excess insurance. When renewing cover in January 1994, LMA informed Lloyd s underwriters that it knew of no circumstances likely to give rise to a claim save, inter alia, in relation to pensions transfers and opt outs. LMA did not contact Sirius directly. LMA was subsequently required by the regulatory authorities to pay over 9 million to clients by way of compensation for mis-selling pensions. Friends Provident sought to recover that amount from insurers. Sirius declined cover on the basis that LMA had failed to notify it of circumstances which were likely to give rise to the claims. Sirius argued that this was a breach of Clause 2, a condition of the excess layer policy, and of Clause 5, a condition precedent of the policy. A trial of preliminary issues was held before Moore-Bick J from which Sirius appealed and Friends Provident cross-appealed. The issues related to the incorporation, nature and effect of the notification provisions, The Court of Appeal considered whether Clause 5 of the Policy was (a) a condition precedent; (b) an innominate term, breach of which might excuse Sirius from liability for the particular claim(s); or (c) a term, breach of which sounded in damages only. The Court considered Waller LJ s comments in Alfred McAlpine plc v BAI (Run-o ) Ltd [2000] 1 Lloyd s Rep. 437 that a claims notification provision was an innominate term, the consequences of which might be so serious as to entitle an insurer to reject the claim but not so serious as to amount to a repudiation of the contract. The Court doubted Alfred McAlpine (Waller LJ dissenting) finding that breach of Clause 5 sounded only in damages. Clause 5 included standard market wording and the Court was unable, as a matter of construction or implication, to find any provision that insurers would be free of liability in the event of a serious breach and/or a breach with serious consequences. Mance LJ distinguished contracts which were severable into separate parts from insurance contracts such as the present which are composite in that parts of the premium cannot be allocated to particular risks or claims. If Clause 5 was interpreted as an innominate term, a sufficiently serious breach could only lead to the discharge of the entire contract. The Court refused to introduce a new doctrine of partial repudiatory breach leading to a novel form of protection for insurers. If insurers wanted or needed such protection, they could and should try to express it in their insurance contracts and see if the market would accept it. The Court agreed with Moore-Bick J that, even in the context of the excess policy, Clause 2 of the primary policy continued to require notice only to the primary insurers, and that LMA s communication in January 1994 was sufficient for that purpose. Helen Wolstenholme AXA GENERAL INSURANCE LIMITED v CLARA GOTTLIEB AND JOSEPH MEYER GOTTLIEB [2005] EWCA CIV rd March 2005 The defendants were insured by Axa under the terms of a buildings policy. In one policy year, they made four separate claims. They had submitted false claims in respect of claims 1 and 2 and interim payments had been made by Axa both before and (in respect of claim 1) after fraud had occurred. Claims 3 and 4 were not fraudulent and had been paid in full before any fraud occurred. Axa sought to recover all payments made on the basis of fraud. At first instance, Bowers J held that Axa Insurers not entitled to reject claim for breach of claims notification clause. Recovery of sums paid out in respect of fraudulent insurance claims Summer

6 Claims handling rights and expenses was entitled to recover only the payments made in respect of the fraudulent claims. The Court of Appeal dismissed the appeal and cross-appeal. Mance LJ, giving the leading judgment, held that the rule relating to fraudulent claims is a special common law rule, not dependant upon any implied or express contractual term. Nor is it analogous to the duty of utmost good faith. The effect of a fraudulent claim is retrospectively to remove or bar the insured s pre-existing cause of action. Therefore, the fact that payments had been made prior to any fraud in claims 1 and 2 did not preclude recovery by Axa of the sums advanced. The defendants forfeited the whole of the claims to which their fraud related. Consideration for interim payments made on those claims failed and they were recoverable. However, the rule in relation to fraudulent claims did not extend to payments made prior to the fraud in respect of unrelated claims. Further, it was suggested, obiter, that the rule relating to fraudulent claims should be confined to the particular claim to which any fraud relates. The Court of Appeal adopted a strict approach to claims tainted by fraud whilst distinguishing payments made in relation to separate, genuine claims. Accordingly, the timing of any interim payment in relation to a claim tainted by fraud is of little consequence if already paid, it is recoverable by the insurer; if unpaid, it is forfeited. However, payments made prior to the fraud in relation to genuine, unrelated claims are not recoverable by the insurer and there are indications that the rule may not extend to such claims at all. If, upon discovery of a fraud, insurers fail to terminate the policy without delay, further liabilities may arise in respect of other, genuine claims under the same policy. Ming-Yee Shiu FREAKLEY v CENTRE REINSURANCE INTERNATIONAL CO [2005] EWCA CIV th February 2005 Turner & Newall Ltd (T&N) and other companies in the same group were put into administration as they faced a huge number of asbestos-related personal injury claims. not subject to any insolvency proceedings, underwrote T&N s asbestos liability policy. Curzon had agreed to indemnify T&N, up to a limit of 500 million, but subject to a retained excess of 690 million. T&N retained the right to handle claims until the ultimate net loss exceeded 690 million. At that point, the right to handle claims passed to the insurer until the limit of 500 million was exhausted, when it returned to T&N. The policy also provided that the right to handle claims would pass to Curzon on T&N suffering an insolvency event. Curzon s liability under the policy was wholly reinsured by 3 reinsurers, including Centre Re. The administrators argued that s.1(3) of the Third Parties (Rights Against Insurers) Act 1930 prevented the right to handle asbestos claims passing from T&N to Curzon (and therefore to reinsurers) when an insolvency event occurred. S. 1(3) of the 1930 Act provides that if an insurance contract in respect of any liability of the insured to third parties purports to alter the rights of the parties thereunder upon the happening to the insured of an insolvency event, such contract shall be of no effect. The Court of Appeal found that reinsurers were entitled to handle the asbestos claims. The claims handling rights were not rights of the insured in respect of the insured s liability to third party claimants and therefore s.1(3) of the 1930 Act did not apply. The Court of Appeal went on to consider how claims handling expenses should be dealt with in such circumstances. The costs and expenses incurred and paid by reinsurers in the exercise of claims handling rights were to be taken into account as part of the ultimate net loss. T&N were liable to reimburse claims handling expenses incurred on the instructions of the insurer during the period between the occurrence of an insolvency event and the date at which the ultimate net loss reached the retained limit. Liabilities for claims handling expenses incurred on the instructions of the reinsurers acting under the rights conferred by the policy and the reinsurance agreement following the occurrence of an insolvency event were to be treated as liabilities incurred by the administrators in carrying out their functions 6 The Newsletter of the Insurance and Reinsurance Group of 2 Temple Gardens

7 reimbursement of claims handling expenses that T&N were obliged to make should be treated as if they are an expense of T&N s administration under s.19(5) of the Insolvency Act Alison Green DORNOCH LTD v ROYAL AND SUN ALLIANCE INSURANCE PLC [2005] EWCA CIV th March 2005 Coca-Cola was insured by a consortium, including RSA. RSA reinsured its D&O liability in respect of Coca Cola with Dornoch and others. Class actions were brought in the USA against Coca Cola and its directors based on allegedly false statements which led investors to buy its shares. The insurance provided that it was a condition precedent to indemnity for advance defence costs that the insured should give notice in writing as soon as practicable. The reinsurance contained a full reinsurance clause and a claims control clause which stated:.it is a condition precedent to any liability under the policy that: (a) The Reinsured shall upon knowledge of any loss or losses which may give rise to claim under this policy, advise the Underwriters thereof by cable within 72 hours. RSA knew of the complaints by 12 December 2000 and received copies of them on 30 December 2000 but did not advise reinsurers until 19 January Dornoch contended that they were not liable as they should have been advised within 72 hours of RSA knowing of potential losses. The Court of Appeal held that loss in the CCC meant actual loss rather than claimed loss. It was not known whether the American claimants had suffered the loss which they claimed as this issue was still in dispute. Thus, RSA did not know of any loss and were not in breach of clause (a) of the CCC. Longmore L J who gave the judgment with which the rest of the Court agreed, stated, obiter, that he agreed with Aikens J that the loss contemplated was Coca Cola s loss and, if that was so, this was certainly a loss of which RSA could not have knowledge until there was a judgment or a settlement to which Coca Cola was a party. This decision underlines the need to ensure that the notification provisions in the reinsurance contract s CCC match those of the underlying insurance. Alison Green GRECOAIR INC. v TILLING AND OTHERS [2004] EWHC 2851 (COMM) 9 th December 2004 In this aviation insurance dispute Langley J was called upon to determine: 1. whether the Claimant aircraft owner could sue reinsurers relying on the contracts for reinsurance; and 2. whether reinsurers had entered into a separate contract with the owner promising to meet the required costs of repair. On the first issue, the Claimant relied upon the fact that it was named in the information section of the policy as owner of the aircraft. The Judge had no difficulty in finding that the parties to the contract were the insurers (one National Insurance Company of Angola) and reinsurers. The Claimant s claim for breach of the reinsurance contract inevitably failed. The second question turned on the facts as to what had been said and agreed at a meeting in London where agents of the reinsurers had interacted with the owners. It would clearly have been convenient to both parties to bypass the lessees of the aircraft, Angola Air Charter Limited and the Angolan insurers. There were discussions and disputes about what repairs were necessary as a consequence of collisions with forklift trucks (covered by the insurance and reinsurance policies) and what repairs were necessary as a result of the ageing and poor condition of the aircraft (not covered). The Judge held that no contract had been entered into between the owners and reinsurers either at or subsequent to this meeting. The owner s claim accordingly failed. Noone seems to have regarded the Boeing 707 as worth repairing since, as recorded by the Judge, So far as is known the aircraft remains at Addis Ababa airport unrepaired and unloved. Martin Porter Summer

8 2tg Insurance and Reinsurance Group Once again, we have pleasure in sending out our edition of On Risk for the summer of We have recently completed this season s seminars in 2 Temple Gardens. John McDonald covered problems of Loss Adjusters Duties; Neil Moody and Andrew Miller delved into the complex details of subrogation law; and Krista Lee and Stuart Benzie provided a fascinating look at Insurance Brokers duties. Our most recent seminar featured the latest decision on asbestos liability insurance which is the subject of a detailed note in this edition of On Risk. On 30 th June, Bob Moxon Browne QC participated in the BILA-run mock trial held in the Lord Chief s court. He argued the Case for Bad Faith Damages in English Insurance Law against William Wood QC of Brick Court Chambers, with market evidence of the US experience in the area. Some of the most recent cases of interest concerning repudiation of liability by insurers are briefly discussed in this edition. We hope that we will feature them more fully in seminars to be included in our autumn season, starting on 29th September We hope to see you there. Howard Palmer QC Alison Green Howard Palmer QC Howard Palmer is joint leader of the Insurance and Reinsurance Group. He has wide experience in national and international litigation and arbitration, including conflicts of laws, insurance and reinsurance and construction contracts. Sonia Nolten Sonia specialises in commercial work, including insurance, professional negligence and employment. She is a member of Chambers Banking and Finance Group. She appeared with Howard Palmer QC for the First Defendant in Bolton v MMI. Tom Montagu-Smith Tom is the editor of On Risk. His practice includes insurance and reinsurance, commercial fraud and banking and finance. He has extensive experience of applications for emergency interim relief.

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