Solicitors. Where specific reference is made to the law it is to English law as at 13 September 2007.

Transcription

1 Elborne Mitchell Solicitors Re//iinsurance iinsollvenciies - some subtlletiies These Notes are derived from a talk by Timothy Goodger and Ed Stanley, partners in Elborne Mitchell, given at Lloyd's Library Thursday 13 September 2007, and relate to issues arising on re/insurance insolvencies. Where specific reference is made to the law it is to English law as at 13 September For specific advice, you should please contact Timothy Goodger or Ed Stanley or the partner with whom you usually deal at Elborne Mitchell. Disclaimer: These Notes are for information only and nothing in them constitutes legal or professional advice. They should not be considered a substitute for legal advice in individual cases; always consult a suitably qualified lawyer on any specific legal problem or matter. Elborne Mitchell assumes no responsibility to recipients of these Notes. Elborne Mitchell One America Square, London EC3N 2PR Tel: +44 (0) Fax: +44 (0) DX: 1063 London/City lawyers@elbornes.com

2 INSURANCE COMPANIES The Notes relate principally to insurance companies, for the most part operating in the London Market. The position of underwriters at Lloyd's of London differ in certain significant respects, and in addition to the general disclaimer about these Notes not being legal or professional advice, specific care should be exercised in relation to the position at Lloyd's. This paper discusses some of the less obvious issues in an insurance or reinsurance insolvency, but which are still important when considering how to protect against the effects of an insolvency. Introduction Tim Goodger commented that there are 3 main insolvency proceedings that are relevant: Administration, Liquidation and Receivership. As well as these an insurance or reinsurance company may enter into a Company Voluntary Arrangement (pursuant to the Insolvency Act 1986) or a Scheme of Arrangement pursuant to s. 425 Companies Act These latter two procedures may now be implemented quite easily for companies once they have been placed into Administration. Administration has now become the likely preferred procedure over Provisional Liquidation. Prior to the Enterprise Act 2000 and subsequent amendments to the Financial and Services Markets Act 2000 ( FSMA ) and related Orders, Administrations were not possible for insurance and reinsurance companies. The use of full liquidation for insurance companies is becoming increasingly rare; the preferred route in an insolvency had been for a company to be placed into provisional liquidation and thereafter for an insolvent scheme of arrangement to be put in place. That however may not always be possible. The ability now for insurance companies to appoint an administrator however also means that there may not be such a great need for the use of liquidators, although one school of thought is that the directors of a troubled insurance company are more likely than not to have identified that there are issues and to consider placing the company into administration rather than into liquidation. If the company has not reached administration it is likely that a full-blown insolvency is the result. The Insurance (Reorganisation and Winding Up) Directive implemented by two sets of regulations in the UK being the Insurers (Reorganisation and Winding Up) Regulations 2004 and the Insurers (Reorganisation and Winding Up) Lloyd s Regulations 2005 is concerned with the allocation of assets of an insolvent insurer and providing that insurance creditors are given priority over other creditors. In instances where there is an insurance entity within the EEA, any insolvency procedures must be opened in the EEA State in which the insurer has its head office for regulatory purposes. In instances where insolvency procedures are to be commenced against a pure reinsurer, then the proceedings must be opened in the EEA State from which the reinsurer carries on its main activities. In instances where the companies have sought to wind up a insurer or reinsurer that is outside the EEA, then it is possible to commence those proceedings within the UK, provided of course that there are grounds for winding up. 1

3 Administrative receivership has been lessened by the introduction of the administration process for insurance companies as a result of the Enterprise Act Administrations have now been used in relation to brokers and, using that as a platform, schemes of arrangement have been implemented successfully. Equally, Company Voluntary Arrangements have been implemented following administrations in respect of companies that are underwriting agents, and not insurance companies, where it is possible to implement an arrangement with a small number of creditors. This is because, like schemes, the voluntary arrangement is a flexible tool for making a distribution to creditors. The advantage of this process is that if there is agreement, then the arrangement will bind every person who was entitled to vote at the meeting regardless of whether they did so or not. It is possible however for the arrangement to be upset by a creditor making an application to the court on the basis that they have been unfairly prejudiced or that there was a material irregularity at the meeting. (ss.6 and.6a Insolvency Act 1986). The FSA has powers to challenge such arrangements as well. Schemes of arrangements for insolvent insurance companies is nothing new and it is only in recent years that the procedure as been adopted and adapted to deal with solvent schemes as well. Nonetheless, they have remained in use in the market, and recent examples are the English and American scheme and the MGI scheme. Administrations Debts to wind-up a company It is often thought that a petition to wind up an insurance company can be made instantaneously where the insurance entity refuses to pay. Obtaining a winding-up order would not give any preferential treatment over and above other unsecured creditors and the gamble is that the insurer is far more interested in preventing the petition. In our lecture on run-off last year we commented on the use of statutory demands and the use of winding up petitions to collect insurance and reinsurance payments. Where a claim under a contract of insurance is disputed, there is no debt; there is - instead - a claim for damages for breach of contract. There is argument that in some instances, on reinsurances, the claim cannot be disputed. If an insurer is served with either a winding up petition or a statutory demand, he should not sit on it but take active steps to have them struck out or set aside. Financial Services Authority ( FSA ) The FSA has the right to be informed with the initiation of any insolvency procedure against an insurer authorised in the UK (see the Insurance (Reorganisation and Winding Up) Regulations). This provides the FSA with the right to intervene where there are proceedings relating to a regulated insurer (save an exempt person or friendly society). The legislation makes clear that not only the FSA, but also the Financial Services Compensation Scheme ( FSCS ) will have an early involvement in an insolvency (administration or liquidation). The rights afforded to the FSCS arise because on the insolvency the FSCS will likely bear the risk of a deficiency in the insurer s assets. This means that the FSCS has the same rights as the FSA to be present at the hearing of petitions to wind up insurance companies. These rights extend to the right to call for documents and to inspect those held by a liquidator or an administrator. 2

4 The FSA itself is in a position to make an application for an administration order on the grounds that the relevant insurance company is unable to pay a sum due under a contract forming part of its regulated activity (see s.359 FSMA). It would therefore be somewhat foolhardy for an insurer simply to think that it should not be troubled by not paying claims since they form the prima facie grounds for the FSA to apply for an administration order. The point here perhaps is the impact of the new proposals to finance the FSCS where there is a failure in relation to an insurer that is primarily a personal lines insurer. The FSCS propose that the funding for failure, be paid from the levy from a particular market, rather than from the financial services industry in general. Administration Procedure Administration is seen as a far more flexible tool than liquidation when an insurance company has become insolvent. An administrators powers are almost as wide as those of a liquidator and provide the ability of the administrator to carry on the business of the company as well as to secure some form of future for the company. It may provide an opportunity for rehabilitation/reorganisation of the relevant company or realisation of its assets on a more advantageous basis than would be the case if a company is wound up. The various functions of the company are vested in the administrator including the power to dispose of charged property. The administrators general role, however, will be to secure the future of the company and having gathered the relevant information relating to assets, liabilities and securities he/she should be able to produce proposals for the future of the company which may be put to creditors. It does not necessarily put the pressures on the FSCS that might otherwise arise where there is a liquidation. An administration order can be made by the Court on application by the company or a creditor on the basis that the company is unable to pay its debts, or by the FSA (s.36 FSMA 2000). The Court must be of the view that the making of an order would enable the company to continue or might be the basis upon which a voluntary arrangement may be approved or a scheme of arrangement might be achieved, or that the realisation for the company s creditors would be greater if there was an administration as opposed to a winding up. One of the most important aspects of the procedure is that a moratorium (imposed by statute) comes into force immediately on presentation of the petition. In effect, this preserves the status quo and means that a company cannot be wound up by creditors; cannot be sued without leave of the Court and; a secured creditor cannot enforce its security. That provides a period for the administrators to decide whether part or all of the business may be salvaged as a going concern or whether it is better to realise assets. The alternative to that is the implementation of a scheme of arrangement pursuant to section 425 of the Companies Act When an administration order has been made, any winding up petitions will be dismissed. There is no guarantee however that a petition seeking administration will be successful; the Court still may place the company into liquidation. The problem, however, for the administrator is that the administration itself is for as little as 12 months, and as much as 30 months. The FSMA 2000 (Administration Orders Relating to Insurers) (Amendment) Order 2003 (SI 2003/2134) amends the FSMA 2000 (Administration Orders Relating to Insurers) Order 2002 (SI 2002/1242). It also extends the period by which creditors may by consent extend the administrator's term of office under IA

5 The Order also amends the FSMA 2000 (Transitional Provisions, Repeals and Savings) (Financial Services Compensation Scheme) Order 2001 (SI ) so that cases before the Financial Services Compensation Scheme relating to insurers in liquidation or provisional liquidation are not affected by administration orders made in relation to those insurers. An administrator can only be appointed by the Court in respect of an insurance Company. Applications may be made by the FSA or the FSA may intervene if they have been commenced by another person. Alternatively, the company itself may make the application by its directors. However, the FSA s written consent would be required in respect of an application for an administration order by the company or an authorised person of the company. Equally, the FSA have the right to make an application for administration in instances where a company may have been carrying on a regulated activity without authorisation. On each of these occasions, however, the company has the right to be heard at the application to the Court but equally, so too has the FSA the right to be heard at the application. The FSA has the same rights as other creditors, including the rights to receive documents sent to them to attend meetings or to apply to the Court where it may be considered that the company s affairs or business or property are not being or have not been managed fairly, i.e. where creditors have been unfairly prejudiced or where the administrators have not been acting correctly. Without Prejudice proposals for settlement When dealing with claims settlement generally, it is normally prior to a dispute being submitted to arbitration or litigation that the parties try to talk about the issues. The first instance Commercial Court judgment of Mrs Justice Gloster in English & American Insurance Company Limited v Axa Re SA [2006] EWHC 3323 (Comm) (2006) is a cautionary tale when there are dealings with an insolvent estate. This was a summary judgment application by English & American - which was in an insolvent scheme of arrangement - against one of its reinsurers, Axa. It was on the basis that English & American, the insurer, had settled with its insured, and Axa was therefore bound to follow the settlement. English & American had gone into liquidation in 1993 and from 1995 onwards it was the subject of a scheme of arrangement. The background facts were - that in the 1980s, English & American participated in insurance contracts insuring Dow Corning Corporation, the American chemical company, against various risks on an excess of loss basis. Abeille Re, who later merged with Axa Re, was English & American s 100% reinsurer. As is well known, Dow incurred substantial liabilities to claimants as a result of personal injuries arising out of its manufacture and sale of breast implant devices and materials. It filed for Chapter 11 bankruptcy protection in Dow s insurers were presented with significant claims and as a result the also well-known London Market Settlement Agreement ( LMSA ) was agreed in late The LMSA was between Dow and various solvent market insurers in final settlement of all past, pending and future known or unknown claims. 4

6 No insolvent market insurers, including English & American at that time - were party to the LMSA. Dow then pursued claims through US Courts against certain solvent insurers. The US Courts substantially confirmed the model used by Dow to allocate its liabilities to the policy years and layers of its insurance. Following this, Dow pursued English & American with claims based on the approved model. English & American claimed against its reinsurers, Axa. Following a without prejudice meeting in 2001, Axa wrote to English & American expressing the opinion that reinsurers rights had been prejudiced because English & American did not participate in the LMSA. Without prejudice to their right to deny liability, Axa stated that they would support a settlement up to the value of what their share of the LMSA would have been, approximately $770,000, being Abeille Re s share of a total English & American liability of approximately $3.7m. In 2002, the scheme of arrangement administrators acknowledged to Dow that English & American had a liability to them of at least $3.7m and admitted the amount as an established scheme liability. The English & American administrators then paid a dividend to Dow of 25% of this sum, in accordance with the terms of the scheme of arrangement. In 2005, Axa wrote to English & American repeating the offer to pay English & American the sum of about $770,000 plus interest, and stating that this would be in full and final settlement of all claims. There was no agreement, and English & American applied to the Court for summary judgment of all the claims. Axa naturally claimed that the correspondence was without prejudice and was part of the ongoing settlement negotiations, and questioned the settlement agreement. As such Axa argued the correspondence could not be relied on. The Judge decided that had Axa s letters in 2001 and 2005 were on an open basis. The Judge also decided that although the offer made by Axa was not an irrevocable agreement to follow a settlement, it was evidence of an admission and admissible. In the context of an insolvent scheme, English & American had acted honestly and had taken proper and businesslike steps in reaching the interim agreement with Dow and that did constitute a settlement of a claim under the reinsurance contracts. The Judge ruled that Axa s offer was to pay the sum subject to English & American s acceptance that it would be in full and final settlement of Axa s liability to English & American. That was regardless of whether English & American settled with Dow on LMSA terms. English & American was effectively recognising therefore that it had a liability to Dow of at least the settlement figure under the insurance contracts. On this basis, Axa had no realistic prospect of defending the claim. Accordingly, English & American was entitled to summary judgment. Recoverability of IBNR IBNR is usually no more than an estimate of claims, which may arise in the future, discounted to present day value. One of the issues with insolvent estates is whether a company in liquidation and which may perhaps enter an insolvent scheme of arrangement is 5

7 able to recover in its reinsurances the element of the claims that have been settled that include IBNR This remains an area of debate and there is no English court decision giving authoritative guidance on the question of recoverability of IBNR from reinsurers. There are four cases to focus on. The 1992 decision In Re a Company [No of 1991]. The court approved actuarial valuations submitted by Cambridge Re s liquidators for the purpose of establishing the company s liabilities. Loss settlements made by the reinsured suggested that an actual loss had arisen and had been settled by agreement between the assured and the insurer. It did not to relate to an actuarial valuation of contingent claims or claims of uncertain value. The 2002 decision of the High Court of Singapore in Overseas Union Insurance Limited v Home & Overseas Insurance Company Limited. This concerned a commutation by OUI and an attempt by it to recover from Home and Overseas, its reinsurer. The Court ruled that a loss settlement is one where a loss is being settled whether by a court order or an arbitration award or via a compromise. The Court ruled that a commutation is not a compromise. OUI could not recover any commuted amounts. Cleaver v Delta Re 2002 (Privy Council). The reinsurer s obligation fell to be assessed by reference to the liability of the reinsured, not actual payments by the reinsured. The figure given for IBNR claims represents an estimate of an actual liability. The events justifying the claims will have happened and the liability will have accrued. English & American Insurance Company Limited v Axa Re SA. AXA may have had a defence regarding the amounts paid in respect of IBNR. Cut-through clauses A cut-through clause is a method by which an insured or reinsured may wish to secure its position should there be an insolvency. Other means of comfort against an insolvency may be Letters of Credit, or the use of trusts such that there is proprietary interest in the monies held by the insolvent estate. There has to be express wording that proceeds of a policy are held on trust including the use of a trust deed. Ordinarily, cut-throughs arise where there is a chain of an insured, an insurer who is the reassured and a reinsurer. The purpose of the cut-through clause is to make the reinsurer liable to the original insured or reinsured in the event that the ceding company becomes the subject of an insolvency proceeding, rather than administration or receivership. The clause would purport to confer upon the reinsured a right to claim directly from the retrocessionnaire. Although in England the need for these is not as great, there is growing debate whether cutthrough clauses are available to reinsureds when the reinsurer would be subject to winding up proceedings in England. In English Law this remains an unresolved question in the context of an insolvency. There is increasing demand for cut-throughs by large commercial insureds in the US and they are usually sought where there are smaller carriers whose rating is not as high as others and where there is fronting. 6

8 When looking at cut-through clauses we are concerned with two strands. The first is the governing principle being the equality of all unsecured creditors. The principle that the Courts will not give effect to a contractual provision that effects a distribution of the insolvent estate s assets is enshrined in the House of Lords decision in British Eagle International Airlines Ltd v Compagnie Nationale Air France. The use of cut throughs would appear to defeat the statutory processes under English insolvency law. To address the British Eagle principle, there has to be a structure where there is no net loss to the potentially insolvent estate. The structure using a direct payment in a facultative reinsurance therefore is likely feasible, and is different from a non-proportional treaty reinsurance or an excess of loss reinsurance. A cut-through clause may be distinguishable from a distribution of the insolvent estate. That is because the assured will be paid direct and that the reinsured no longer requires payment to be made to it. That seems to put in jeopardy the aim of the Insurance Undertakings Directive and the requirement that the liquidator pay certain direct creditors before it pays reinsurance creditors. The second strand is the doctrine of privity of contract which states:- no one but the parties to a contract can be entitled under it, or bound by it. That means they are not able to enforce the terms of a contract to which they are not a party. An insured is not able, on the face of it, to bring an action against a reinsurer to enforce the terms of the reinsurance contract in favour of the cedant. The issue of privity of contract is addressed partly by Contracts (Rights of Third Parties) Act Under The Contracts (Rights of Third Parties) Act 1999, if the terms of the Act are not effectively excluded then a third party may in his own right enforce a term of the contract if the contract expressly provides that he may, or the term purports to confer a benefit on him. If there is no provision within the contract to exclude the applicability of the Act, then the Act will apply. For an assured to claim against a reinsurer by way of a cut-through clause, the contract must provide specifically that the insured can enforce the contract term and the term confers a benefit on the assured. It therefore needs to be possible to identify the assured sufficiently. In an insolvency the cut-through may be of limited use, however, because the reinsurer as the right of set-off or to take the defences against the assured that would have been available to the reinsurer against the reinsured. Those defences may relate to the right of indemnity and therefore are enforceable. These may be difficult to address. There may be issues on set-off relating to premium payments etc. or possibly breaches of premium warranty clauses. If properly structured there is argument to say that cut-through clauses should be enforceable. It is questionable whether a cut-through, in effect a charge on a book debt of the reinsured, should be registered at Companies House by the insured, pursuant to the terms of the Companies Act The general view is that it is not necessary to register it since it is a stipulation that payment will be made to the insured; and the reinsured is not involved in the payment process. As such there is no loss to the reinsured, particularly if the underlying insured will not enforce its claim against the reinsured. 7

9 Issues to consider, however, include whether a cut-through clause defeats the statutory process under the Insolvency Act and whether the transaction may be impugned. Many will be familiar with the risks of entering into transactions with companies in the twilight of insolvency. In our lecture last year we commented on the rights of insolvency practitioners to apply to the Court to have transactions set aside and recover monies where parties have had dealings with the insolvent entity prior to the onset of insolvency. These include actions for preferences and transactions at undervalue ss. 238, 239 of the Insolvency Act These provisions become important in circumstances where the entity has become insolvent and there are lesser funds in the entity than there would have been prior to the transfer of assets or in this case the transaction. Both liquidators and administrators have the power to apply to the Court for an order to set aside such transactions. The various forms of relief are wide. In essence the complaint would be that the insured is being preferred (or favoured) ahead of other creditors. It is in doubt that the cut-through clause constitutes a preference. However more importantly, if the arrangement is entered into at the time that the reinsurer has financial problems then it may be considered that this is a transaction that may be set aside because it may not be for value and would deny the general body of creditors the funds arising out of the reinsurance claim. It is however arguable that it is a transaction at undervalue defrauding creditors under s 423 Insolvency Act ( Transactions Defrauding creditors ). Letter of Credit Ed Stanley commented that one of the most effective means of protecting yourself against reinsurer insolvency is to have your reinsurer establish an LOC in your favour. This effectively substitutes the bank s paper for that of the reinsurer. It is a written instrument issued by a bank at the request of its customer the reinsurer - for a beneficiary - you. Under standard practice, the rules of the International Chamber of Commerce Uniform Customs and Practice for Documentary Credits (in its most recent form, UCP 600) are incorporated. Under English law and under the UCP - the LOC is an entirely separate contract from the contract by which it is created. It is a contract between the issuing bank and beneficiary: the bank puts up the credit facility; and the beneficiary benefits, so long as the necessary conditions for drawdown are satisfied as to entitlement and presentation of the proper papers This gives rise to the concept of autonomy of the LOC. One consequence of this is if reinsurers have a defence to a claim by a reinsured, the bank must pay regardless. This is however subject to a fraud exception, which has two aspects: where there is fraud in the LOC documents themselves; obviously, if the beneficiary has presented fraudulent information or material to the bank, the bank should not pay. 8

10 where there is fraud in the underlying transaction; the legal position here is not quite so clear, but the more recent authorities suggest that where the underlying transaction had an illegal purpose, drawdown should not be allowed. Autonomy notwithstanding, the LOC does not live in a vacuum. The requirement to establish a LOC may be written into the treaty wording or into a collateral contract or endorsement. It may be conditional; e.g., in the event of the reinsurer being downgraded below BBB rating or similar. However, if your reinsurer does not establish one, what can you do? Failure to set one up only gives a claim in damages, which is of little practical use if the reinsurer is going south anyway. You might like to consider making failure to put up a LOC an act which terminates the contract or alternatively, that premium paid by the reinsured be held on trust by the Reinsurer under a special purpose trust to set up an LOC, see Hurst-Bannister v. New Cap Re. The wording/endorsement should set out the circumstances in which draw down will be allowed. Careful drafting can avoid problems - and stop the liquidator claiming the proceeds of the LOC. Here follows an example of how not to go about this. Sirius v FAI (2004) The Agnew Syndicate was offered FAI as security and said they would only agree if Sirius were interposed as a front. Sirius required a LOC from FAI and the parties negotiated a side letter, which set out the terms on which a 5m LOC was established. This was in the following terms; We (Sirius) therefore undertake that we will not draw down under (the letter of credit) unless (1) FAI has agreed that Sirius should pay a claim but has not put Sirius in funds to do so or (2) (Agnew) obtains a judgment or binding arbitration award against Sirius which Sirius is obliged to pay Agnew had a claim and Sirius obviously wanted to pass it onto FAI. FAI however played dead and Sirius issued arbitration proceedings against them. FAI then went into insolvent liquidation. This meant that the arbitration was automatically stayed and Sirius applied for an order to lift the stay. This was compromised on terms enshrined in a Consent Order, which provided as follows; 1. FAI is indebted to (Sirius) in the sum of $22.5 million and (Sirius) shall be entitled to prove in the liquidation of FAI in the sum of $22.5 million 2. (Sirius) shall draw down on the LOC 3. (Sirius) shall pay the proceeds of the LOC into an escrow account to be held together with accrued interest thereon by Reynolds Porter Chamberlain pending the resolution of the parties claims if any in respect of the LOC 4. For the avoidance of doubt, the position and all arguments of (Sirius) and 9

11 (FAI) in respect of the LOC are preserved in respect of the proceeds notwithstanding the terms of this order. 5. Save for the parties rights with respect to the LOC and the agreements associated to the LOC, the terms herein shall be in full and final settlement of all claims raised by either party in the arbitration proceedings. The LOC was drawn down and the money put in an escrow account held by Sirius s solicitors. Sirius demanded payment of the escrow funds. FAI s liquidator however argued that he had agreed only that Sirius could prove in the liquidation and the escrow money belonged to FAI. The dispute turned on whether paragraph 1 of the Consent Order satisfied condition 1 of the side letter. Sirius said that it did. However, FAI s liquidator said all paragraph 1 did was acknowledge that Sirius could prove its claim in the liquidation and paragraphs 3 to 5 made it clear there was still a dispute over who was entitled to the proceeds of the LOC. The dispute went to the House of Lords who held by a 3 2 majority that Sirius was entitled to the money. The 1 st instance Judge held for Sirius, but the Court of Appeal against them. So this was the most narrow of decisions. The Insolvent Composite It s bad enough news that your reinsurer has gone bust, but its all the more galling to learn that if the reinsurer wrote direct insurance policies too, his insurance creditors will be paid before you. This is because of the Insurers (Reorganisation and Winding-Up) Regulations 2004, which provides that after the payment of preferential debts, insurance debts of a UK insurer which is being wound up must be paid before all other unsecured debts. An insurance debt is one for which the UK insurer is or may become liable pursuant to a contract of insurance to a policyholder or to any person who has a direct right of action against the insurer. It includes refunds of premium. The definition of insurance debt excludes reinsurance claims. However, the distinction between insurance and reinsurance can be blurred. The classic definition of reinsurance as insurance of other insurance doesn t always work. In Toomey v Eagle Star (1993), a run-off cover protecting a Lloyd s syndicate was not considered to be reinsurance even though it plainly involved the laying off of insurance contracts. Further, certain esoteric alternative risk structures involve contracts that might be described as reinsurance but - if they are anything that this market might recognise at all - are insurance contracts. Before you get too downhearted, this only applies to a UK liquidation; reinsurance being an international business, it has tended to be the overseas insolvencies which cause the biggest problems. 10

12 The Broker and the Insolvent Security So, assume your security has gone bust. Is there anyone else to blame? One obvious enquiry if your reinsurance asset fails is whether your broker has anything to answer for. A broker owes duties to his client in both contact and tort. He is liable if he places cover with obviously duff security Osman v Ralph Moss (1970) being the English locus classicus. Mr Osman was a cabinet-maker whose ability to read and write English was limited. His brokers placed his motor insurance with Belvedere Motor Policies, a company known in the trade at the time to be in financial trouble. Shortly after the policy incepted, a winding up order was made against Belvedere and the brokers sent a rather woolly letter to Mr Osman suggesting he insure elsewhere. He had no idea what was going on, until he had an accident and was fined 25 for driving whilst uninsured. The brokers were found liable for his loss, not entirely surprisingly. An Australian authority takes this a bit further and suggests that a broker has a continuing duty to advise if he learns of any information which indicates that the insurer might not remain financially sound; Lewis v Tressider Andrews Associates (1987). Lewis was a Queenslander fisherwoman who went to her local brokers for cover for her fishing boat. They went to the Lloyd s brokers Oakeley Vaughan. At the time, the Lloyd s market was not particularly interested in Australian fishing risks, but Oakeley Vaughan managed to find some one who would write it; the Old Charter Insurance Company, a company which had recently been set up in the Turks and Caicos islands and from its inception, had magically acquired assets of over $9 million which were invested mainly in property. According to its business plan, it expected to realise nearly $2 billion from its investments in 10 years. Oakeley Vaughan sent the Australian brokers copies of the financial information, including a copy of Old Charter s balance sheet, from which it should have been blindingly obvious that Old Charter was a sham. The brokers however took it at face value and Mrs Lewis was signed up. Oakeley Vaughan then got wind that the Old Charter might not be all that it seemed and sent the Australian brokers a couple of telexes warning them that there were problems about its solvency. The brokers however ignored the warnings; Mrs Lewis s boat caught fire one evening and Old Charter were, predictably enough, nowhere to be found. The Court concluded that as long as the relationship of broker and client exists, there is a continuing duty of care ; therefore, if the security looks in danger half way through the coverage period, the broker has to bring this to his client s attention. It may be that Lewis needs to be taken with a bit of care, as the facts were pretty extreme, but it serves to illustrate that brokers should not automatically assume their job is complete after placement. Reinsurance of course involves sophisticated and knowledgeable clients who are just as aware as the brokers of the standing and rating of their security. Dealing with the Insolvent Reinsured This talk has concentrated on the insolvent (re)insurer. This leaves open the other side of the coin when you (re)insure an entity which has become insolvent. 11

13 The first thing a Liquidator wants to do is reduce costs. Claims handling, adjustment and management is the costliest part of this business and therefore, the first thing that gets cut back is the claims function. This often manifests itself in withdrawal from market claims service facilities to avoid paying the fees. As a reinsurer, you need to be satisfied that the claims presented to you have been properly adjusted and that you get the claims information you need. After a liquidation, one thing is sure you won t get what you got before. Wordings never set out the detail of what claims information should be given mainly because it is too case specific and things change over time, with the expectation that common sense will prevail. Reinsurers can be tempted to say we ve always been given this information before, but that probably won t help. You need to distinguish between what your reinsured is legally obliged to provide against what he has done in the past the latter being highly unlikely to have bound him or his liquidator. Neither is there any realistic chance of arguing universal market practice ; the Courts set an unbelievably high bar for a market practice to become elevated to the status of being legally binding. The practical answer is to put your reinsured to proof of each claim and ask to inspect books and records; those obligations survive the liquidation. Your position is no different from what it would have been regardless of the insolvency. A claims control or co-operation clause will keep you in the driving seat. If there is a follow settlements clause in the contract wording, the settlement (and the claims recognised by it) must fall within the risks covered by the reinsurance contract as a matter of law and the settlement must have been effected in a prudent and business-like way (see Scor v ICA, Generali v CGU etc). The burden of proof rests on the reinsurer to prove that the settlement was not prudent and businesslike, see Charman v GRE (1992). It is naturally irksome that you have to pay the reinsured 100%, whilst he only pays a proportion by way of dividend. Can you contract out of that? An attempt was made in the context of excess of loss reinsurance some years ago. A standard London policy pays on the basis of the Ultimate Net Loss (UNL) which is defined as e.g. the sum actually paid by the reassured in settlement of its liabilities. In Charter Re v Fagan (1996), it was held that that this doesn t mean the sum actually paid as such, but the liability incurred. So even though Charter Re might only be paying 20 cents in the dollar, Fagan had to pay Charter Re the whole dollar. 12