Herbert Smith Freehills LLP updates

Construction of exclusions in insurance policies
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • December 05 2017

In a recent case, the Commercial Court found in favour of the defendant insurer in regard to the disputed construction of an insolvency exclusion in a professional indemnity insurance policy. The case is a useful restatement of the law on the interpretation of exclusion clauses in insurance contracts. It also serves as a reminder that policyholders should not assume, simply because an exclusion is widely drafted, that it will not be upheld by the courts in the event of a dispute.

Recent developments in EU trade and investment policy
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • October 20 2017

The European Court of Justice recently handed down its opinion regarding the European Union's competence to conclude its proposed free trade agreement (FTA) with Singapore. FTA proposals incorporating provisions on the protection of non-direct foreign investments or investor-state dispute settlement mechanisms should be treated as mixed agreements, requiring ratification from not only the European Union, but also each member state.

EU-Japan 'agreement in principle' for economic and partnership agreement
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • August 25 2017

The European Union and Japan recently announced having reached an 'agreement in principle' on a future economic and partnership agreement. The final agreement is expected to boost EU-Japan trade by cutting red tape and scrapping duties. EU businesses importing from and exporting to Japan should prepare for the agreement's entry into force. This requires assessing the exact effect of the agreement on their operations and identifying potential opportunities and challenges.

PRA adopts questionable approach to regulatory compliance
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • August 15 2017

Recent comments made by the chief executive officer of the Prudential Regulation Authority (PRA) about its approach to supervision are worrying. An undelivered speech argues, among other things, that it is not enough for firms to meet the requirements of the regulatory regime, they must also comply with the spirit of the rules. Further, it states that the PRA will form its own judgement about what this means for firms, despite UK obligations under EU law.

No inducement: Court of Appeal upholds first-instance decision
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • July 18 2017

The Court of Appeal has held that a reinsurer failed to establish that material non-disclosure of past loss statistics induced it to enter into two reinsurance contracts. Though the reinsurance contracts at issue predated the Insurance Act 2015, the judgment is relevant to insurance and reinsurance contracts governed by the new act. The new proportionate remedies for breach of the duty of fair presentation are available only if the (re)insurer is able to demonstrate inducement.

High Court refuses to order pre-action disclosure of a defendant's public liability insurance policy
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • June 27 2017

Peel Port applied for pre-action disclosure of the defendant's insurance policy. The court refused to order disclosure of a solvent insured's insurance policy contrary to established practice. However, the judgment does leave open the possibility that pre-action disclosure of a defendant's insurance policy may be ordered where the test is met.

Supreme Court construes aggregation provision in minimum terms and conditions of professional indemnity insurance
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • April 04 2017

The Supreme Court recently handed down its judgment in a case relating to underlying claims arising out of services provided by a solicitors' firm. The court allowed the appeal and remitted the case back to the High Court. The Supreme Court held that determining the meaning of "a series of related matters or transactions" in the aggregation clause contained in the minimum terms and conditions for solicitors' professional indemnity insurance necessitated a fact-sensitive inquiry.

Court of Appeal considers meaning of notification wording
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • February 14 2017

The Court of Appeal recently upheld the Commercial Court's finding that an insurer could not rely on a notification condition precedent to avoid liability under a public and product liability policy. The judgment serves as a reminder that it is crucial for policyholders to be aware of the notification provisions in their policies and when their obligations to notify are triggered.

Reminder to brokers of need to advise insureds on policy terms
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • February 07 2017

A court recently held a broker liable for failing to advise its insured client that certain safety precautions were required by insurers as a condition precedent to cover under a property policy. The case serves as a reminder to brokers of the importance of advising clients on the terms of the policies that they place, particularly onerous terms such as conditions precedent.

High Court construes wording as aggregating language to give effect to limit of liability
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • January 17 2017

The High Court recently considered the wording of a clause in an insurance policy and was prepared to interpret the clause as an aggregating clause. Although aggregating provisions are normally worded so as to aggregate claims for the purposes of both the insured's excess and the insurer's limit of indemnity, the court was not prepared to rewrite the policy to achieve this effect. The aggregating provision applied only to the limit of indemnity.

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