Solicitors Case Study. QBE European Operations

Transcription

1 Solicitors Case Study QBE European Operations

2 QBE Solicitors Case Study Questions? Contact your QBE representative today at

3 Claims by work type A handy way to identify where your next headache will come from QBE-recommended Mitigation Controls by Claims Type Claim Type Lender: In 2012, there was an increase in lender litigation, which has since experienced a clear decline in Property: The economic downturn has, once again, been accompanied by a rise in mortgage fraud claims, particularly against solicitors. There are some indications that such claims are at their highest ever level. Pension: As schemes fall into deficit, the scope for blaming legal advisors increases. Claims tend to revolve around: Funding and benefit entitlement issues Document drafting Barber equalisation (failing to advise that trust deeds need amending to prevent more favourable benefits accruing) Insolvencies: When a company goes into insolvency, liquidators or administrators will carry out a review of all its past transactions. Sometimes, problems emerge in relation to rent reviews, employment contracts or other guarantees any of which can trigger professional negligence claims against the solicitors involved. Matrimonial: Problems usually arise under settlements/pensions disputes, and also where there has been a failure to obtain actuarial advice. Costs & litigation funding: Third party lenders seeking to recover funding for speculative personal injury/industrial disease claims. Mitigation Controls Clear policies Understanding and notification process in line with CML requirements As the economy improves and funding becomes more plentiful, practices should: Maintain a high level of alertness, particularly with regards to money laundering, and mortgage and property fraud Monitor guidance and update controls as needed This is a specialist area make sure you have the correct expertise on your side Always ensure an independent checking of relevant documents Operate a comprehensive risk management system Implement key-date management systems Install independent, risk-based file reviews within the practice for all levels of adviser Apply effective strategic and business planning to identify additional options Risk assessment linked to asset value Allocation of correct level of expertise Thorough research into all assets/beware risk of hidden assets/ other businesses etc. Supplement in-house skills with outside expertise accountants, actuaries, tax advisers, investigators etc. Risk assessment for likelihood of success Clearly communicate duty to funders, clients Indemnity cover for fees: There is a push for cover to obtain fees, as a result of increased financial strain on the Insured, meaning they cannot afford to write off substantial fees. Payment of some or all of the Insured s fees can be a factor in negotiating a commercial settlement. Clarity regarding fees/upfront fees Regular billing/management of WIP levels Communication/agreement of fees pre-billing Clear strategy on written off time Cover is a key issue for insurers Claims by work type Count Commercial Conveyancing Residential Litigious (Other) Conveyancing Commercial Landlord and Tenant Personal Injury Directorships and Trusteeships Banking/Finance Trust and Probate Matrimonial and Family Defendant Litigious Work Employment Other Audit and Tax Insolvencies Non-Litigious (Other) M&A Solicitors Pensions Aviation/Marine Consultancy

4 QBE Solicitors Case Study The inside view on tackling mortgage fraud Will conveyancing solicitors be any the wiser during the current property boom? The magnitude of mortgage fraud during the last property boom only fully came to light when the bottom fell out of the market. Cavalier lending in the buy-to-let market provided fertile ground for fraudsters. Typically, mortgage fraud rings would buy-up a number of properties, often new build developments to take advantage of sales incentives. The properties would then be sold at once to another member of the ring. A compliant surveyor would value the property at a higher price, sometimes with dishonest assistance from a solicitor. Mortgage monies would be transferred to the solicitor s client account, then onto the vendor who would pocket the difference and disappear. The buyer would default on the mortgage and also disappear, leaving the lender with a security worth far less than the value of the loan made. Whilst in many cases solicitors may not have been deliberately dishonest, conduct which was reckless or negligent would usually be sufficient for claims by lenders to attach to firms PI policies. Even where a solicitor is innocently caught up in a fraud ring, the solicitor s client-friendly indemnity cover will often be the first target for a disgruntled lender and PI defence costs will ensue, hitting the firm s claims record and affecting premiums on renewal. Given the accessibility of advanced technology, there is evidence that identity fraud is the new battleground. This would include fraudsters impersonating sellers or conning the real sellers and duping solicitors with forged ID documents as well as bogus law firms purporting to act for sellers, or bogus offices of genuine firms. With this all in mind, how can firms be more vigilant to the risk of mortgage fraud? Targeted risk assessment of those high risk borrower/ lender conveyancing matters should be the start. Greater vigilance is required in checking the authenticity of a client s ID documents and, wherever possible, this should include meeting the client in person, with their ID documents. Carrying out checks with the SRA and Law Society when dealing with a new firm, should also help. Those organisations themselves could provide more of a deterrent to potential fraudsters by bringing more prosecutions for property related fraud, either by the SRA to the Solicitors Disciplinary Tribunal (SDT) or by the CPS. There is no getting around the fact that risk management costs money. Such costs should be part and parcel of the firm working out whether it can afford to practice in these higher risk areas. The number of firms looking for the cheapest quotes from unrated insurers in the PI market shows that many solicitors are struggling financially and that may put pressure on firms to cut corners with potentially serious consequences in the area of mortgage fraud. In fact, cutting corners is only likely to lead to an increase in premiums if firms are caught out by fraudsters. The money and time required by risk management will pay real dividends as firms with robust procedures attract more reputable business and also attract more competitive PI cover as the investment in such procedures is reflected in their claims record. Michael Williams Associate, RPC

5 QBE Solicitors Case Study Trend analysis Residential and commercial notifications are heading in different directions Observed Trends 2007: lowest point for conveyancing notifications (immediately prior to the recession) 2008: the beginning of a steady rise in the number of conveyancing notifications 2011: the number of residential notifications began to tail off, while commercial notifications begin to rise again. Conveyancing Notifications Analysis By their very nature, commercial properties are more complex; therefore it has taken lenders longer to evaluate their position on repossessed assets It s also common for lenders to sit on such assets and wait for the market to turn, prior to disposal Until the asset is disposed of, and the loss has materialised, the lender is not in a position to make a claim Residential Commercial Combined Given the current liquidity in the property market, lenders are now prone to offload these assets, realise their historic losses, and therefore claim against those they believe are liable. Conclusions Since 2007, the environment for transactional property work has been a fraught one and it s not getting better In fact, indicators point to a likelihood that it will probably never return to the position it was in prior to 2007 While this is likely to have a significant impact on both commercial and residential conveyancing work, QBE s risk management tools are designed to help you mitigate the economic impact.

6 QBE European Operations Plantation Place, 30 Fenchurch Street, London EC3M 3BD tel +44 (0) QBEeurope.com QBE European Operations is a trading name of QBE Insurance (Europe) Limited and QBE Underwriting Limited, both of which are authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. 4729CC/SOLCASESTUDY/November2014