Ms April McClements

April McClements

Lawyer biography

Expertise

April McClements is a Partner in the Insurance and Dispute Resolution team within the Commercial Litigation and Dispute Resolution Department at Matheson.  The team practices in all areas of insurance and reinsurance law providing advice on policy wordings and coverage.  The group also advises on regulatory issues and on administrative sanctions.

April provides coverage and general advice on a variety of risks, particularly in the areas of professional indemnity, directors and officers and financial institutions cover, and manages a significant number of professional indemnity claims for professionals, including insurance brokers, architects and engineers, for a variety of insurers.

April has been involved in obtaining High Court approval for various insurance portfolio transfers and/or schemes of arrangement arising from reorganisations and/or mergers and acquisitions involving life, non-life and captive insurers.  April also works in the area of general commercial litigation with a particular focus on contractual disputes, most of which are litigated in the Commercial Court.

April is a member of the Insurance Institute of Ireland, the British Insurance Law Association and has contributed to the Irish Broker Magazine.  She has lectured to the Institute of Bankers School of Professional Finance, the Insurance Institute of Ireland, and the Law Society of Ireland Diploma on Finance Law.

Experience Highlights

  • advising Aviva in relation to a significant subrogation claim which is being litigated in the Commercial Court arising from flooding in Cork City;
  • defending an insurance broker in a significant professional indemnity action by Bloxham Stockbrokers;
  • advising an insurer in respect of cover under a Financial Institutions policy for multiple mis-selling claims;
  • acting for Kenmare Resources in the Supreme Court appeal of a €10 million libel award;
  • advised an insurer in relation to coverage of a fidelity claim notified by an Irish head-quartered company under its Commercial Crime Insurance Policy in respect of losses suffered by its US subsidiary as a result of alleged theft and fraud by other parties including former employees;
  • successfully represented excess layer insurers, Chubb and WR Berkley, in declaratory coverage proceedings in the Commercial Court in respect of the Michael Lynn professional indemnity cover.

Education

  • Bachelor in Civil Law (International), University College Dublin and Osgoode Hall Law School, Toronto
  • Diploma in Commercial Litigation, Law Society of Ireland
  • Admitted as a solicitor in Ireland and England & Wales

Updates

Insurance

Clarity for insurers seeking to join proceedings
Ireland | 16 April 2019

The April 2018 decision of Bin Sun v Jason Price provides a useful summary of the circumstances in which a party can be joined as a co-defendant against the wishes of a plaintiff. It also provides clarity for insurers as to the circumstances in which they can seek to be joined to proceedings at first instance, which could prevent or substantially reduce their exposure in a subsequent application by a claimant to enforce against them.

Impact of Brexit for Irish policyholders
Ireland | 26 March 2019

Large corporates based in Ireland typically have a suite of non-life insurance policies to cover a variety of risks. Given the fact that the UK insurance market is the biggest in the European Union, it is likely that at least some of the policies held by corporates based in Ireland will have been written by UK or Gibraltar-licensed insurers. As such, whatever form Brexit ultimately takes, Irish policyholders with policies written by UK insurers must assess any risk to (among other things) their ability to renew.

Supreme Court decision puts after-the-event insurance under spotlight
Ireland | 10 October 2017

A recent Supreme Court decision confirming that third-party litigation funding in return for a share of the proceeds is unlawful in Ireland has put after-the-event (ATE) insurance back in the spotlight as the only legitimate alternative method of funding litigation. Although a relatively new insurance product, a number of insurers are now providing ATE insurance in Ireland.

Fasten your seat belts: driverless cars to rev up insurance industry
Ireland | 13 June 2017

The existing legislative and regulatory framework for motor insurance in Ireland is driver-centric and needs to adapt for the era of autonomous vehicles. At present, driving is defined as 'managing and controlling' a vehicle. This is not appropriate for autonomous vehicles, where the technology and not the driver controls the vehicle. The legal landscape must keep pace with this cutting-edge technology and efforts must be made now to consider how best to address the various issues which will arise.

Consumer Insurance Contracts Bill 2017
Ireland | 21 February 2017

The Consumer Insurance Contracts Bill 2017 recently passed the second stage in the Dáil (the lower house of Parliament) and will now proceed to the committee stage. The bill will apply to consumer insurance contracts only. It will replace the existing duty of disclosure with a statutory duty to answer specific questions carefully and honestly and will allow the insured to claim damages for late payment of claims by insurers. At present, there is no timeline for implementation.

Avoidance of life assurance policy for non-disclosure of material facts
Ireland | 20 December 2016

The High Court recently upheld a finding of the Financial Services Ombudsman that an insurer was entitled to avoid a life assurance policy on the grounds of non-disclosure. Significantly, the decision turned on the strength of the proposal form and serves as a useful reminder to insurers of the importance of a well-drafted proposal form.

Solicitors' professional indemnity insurance regulations do not create third-party rights
Ireland | 08 March 2016

The High Court recently confirmed that third-party rights against insurers in Ireland are restricted, providing comfort for insurers in the context of solicitors' professional indemnity insurance. The decision is consistent with recent confirmation from the authorities that third parties have no direct right of action against insurers. To the extent that a specific statutory provision permits a restricted right of action, the insured defendant's liability must be established in the first instance.

Court of Appeal upholds High Court decision regarding real rate of return
Ireland | 23 February 2016

The Court of Appeal recently ruled in a case which considered the 'real rate of return' discount which would be applied to an injured plaintiff's future care costs. When quantifying future losses in personal injury actions, future care costs may now be discounted by only 1% and as a result underwriters will be ordered to pay out higher lump-sum damages awards. There is likely to be a knock-on effect which will see underwriters increasing premiums.

Irish insurance market to be affected by upcoming UK reform
Ireland | 02 February 2016

The Law Reform Commission of Ireland recently published its draft Consumer Insurance Contracts Bill 2015. Unlike the UK Insurance Act, the commission's bill applies only to consumer insurance contracts. While the changes proposed in the bill are not generally as wide-reaching as those to be implemented by the UK act, there are some similarities, including changes to the duty of disclosure and proportionate remedies for non-disclosure.

Periodic payment orders on horizon for catastrophically injured plaintiffs
Ireland | 03 November 2015

The General Scheme of the Civil Liability (Amendment) Bill provides that a court awarding damages for future monetary loss in respect of catastrophic injury may order that all or part of the damages be paid as periodic payments where it is in the best interests of the plaintiff. The use of a periodic payment order is intended to transfer risk from the plaintiff to the insurer. However, the plaintiff will bear the risk that the insurer could become insolvent.

High Court confirms that third-party rights against insurers are restricted
Ireland | 27 October 2015

The recent High Court decision in Michael Murphy v Allianz Plc provides further clarification of the scope of Section 62 of the Civil Liability Act 1961 – in particular, the conditions which must be satisfied for its application. The decision will be welcomed by insurers, as it confirms yet again that the Irish courts will require strict compliance where an injured third party seeks to rely on Section 62.

FSO erred in upholding avoidance of home insurance policy for material non-disclosure
Ireland | 20 October 2015

The High Court recently considered whether the Financial Services Ombudsman (FSO) had erred in law in determining that an insurer was entitled to void a home insurance policy for material non-disclosure. The court noted that the case concerned a consumer contract and thus all comments and findings of the court were made exclusively in that context. The court concluded that the deputy FSO had erred in law on at least five grounds.

Proposed reform of consumer insurance contracts
Ireland | 13 October 2015

The Law Reform Commission has published its long-awaited report on consumer insurance contracts. The report makes 105 recommendations for reforms to the rules. According to the commission, the existing rules do not reflect the realities of the bargaining powers of consumers compared to large insurers. If adopted, insurers will have to redraft their consumer insurance policies.

Insurer to prove alleged non-disclosure by oral evidence
Ireland | 04 August 2015

The High Court recently refused an application by an insurer for leave to deliver interrogatories, finding that the alleged material non-disclosure must be proved by oral evidence at trial. The insurer had obtained extensive discovery of the deceased's medical records, enabling it to phrase the interrogatories with precision. However, the court concluded that the plaintiffs should have the opportunity to cross-examine the defendant's witnesses.

Serious illness cover misunderstood, but not mis-sold
Ireland | 28 July 2015

In a recent case, a couple's claim for rheumatoid arthritis was refused by the insurer because the policy did not include serious illness cover. The appellant complained to the Financial Services Ombudsman (FSO) on the basis that she and her husband believed that they were covered for all manner of serious illnesses under the policy, rather than only certain specified illnesses. The FSO found that the complaint was unsubstantiated.

Insurers entitled to rely on additional reasons post-declinature
Ireland | 14 July 2015

The High Court recently confirmed that insurers will not be limited to the initial reasons listed for declinature and may rely on misrepresentations made subsequently by an insured. The court found that a misrepresentation by an insured can be taken into consideration by the court, even if it arises subsequent to the initial claim being made and its initial refusal.

After-the-event insurance given amber light
Ireland | 16 June 2015

The Court of Appeal recently overturned a High Court ruling that the insolvent plaintiff's after-the-event (ATE) insurance could effectively substitute security for costs. The court accepted that an ATE insurance policy could provide security for costs in principle. However, it did not accept that the policy in question provided sufficient security. The decision was influenced by the existence of a condition precedent.

Majority of insurance complaints to Financial Services Ombudsman not upheld
Ireland | 12 May 2015

The latest Financial Services Ombudsman annual review has revealed that insurance complaints represented 44% of all consumer complaints filed in 2014. However, it is significant that 80% of these were not substantiated. Payment protection insurance continued to be a significant source of complaints.

After-the-event insurance passes champerty and maintenance test
Ireland | 09 September 2014

The High Court recently upheld the validity of an after-the-event insurance policy and expressly confirmed that after-the-event insurance does not fall foul of the tort of maintenance or champerty. The court held that the rules against maintenance and champerty remain applicable in an Irish context and after-the-event policies must comply with these rules in order to be valid and enforceable.

Payment protection insurance remains in spotlight
Ireland | 26 August 2014

In 2012 the Central Bank of Ireland undertook a widespread review of PPI sales, which resulted in refunds of €67.4 million. To date, both the Financial Services Ombudsman and the Irish courts have largely found in favour of credit institutions and ruled that PPI was not mis-sold to policyholders. However, this has not discouraged claimants and challenges to PPI sales persist.

Financial Services Ombudsman reports on insurance complaints trends in 2013
Ireland | 08 April 2014

Fifty percent of complaints made to the Financial Services Ombudsman (FSO) in 2013 related to insurance. For the first time since 2007, there has been a significant decrease in the number of complaints made, although complaints requiring formal investigation have increased. The FSO welcomed the reduction in complaints but highlighted that payment protection insurance continues to be a concern.

Investment structured as life assurance contract – does utmost good faith apply?
Ireland | 21 January 2014

In a recent High Court case a retired insurance broker had invested in a property-based fund which was unsuccessful because another development had attracted tenants away. The appellant argued that had he known all the facts, he would never have invested. The court concluded that the contract was not one of assurance but one of investment, and the principle of utmost good faith did not apply.

High Court confirms documents prepared in coverage investigation are privileged
Ireland | 13 August 2013

The High Court recently found that it was unnecessary to provide documents prepared in anticipation of repudiation of a life insurance policy, as the documents were protected by litigation privilege. Litigation privilege protects confidential documents assembled with the purpose of preparing for a litigation. Insurers should keep in mind that they may wish to claim privilege over confidential documentation prepared during an investigation.

Scope of third party rights against insurers clarified by High Court
Ireland | 14 May 2013

Two recent High Court decisions have provided much-needed clarification as to the scope and operation of Section 62 of the Civil Liability Act 1961. The decisions related to applications by insurers to strike out the claim against them on the basis that no reasonable cause of action was disclosed. Both insurers were successful.

Can after-the-event insurance substitute security for costs?
Ireland | 30 April 2013

The High Court recently had its first opportunity to consider whether after-the-event insurance policies could effectively substitute security for costs. The ruling demonstrates that the courts will accept after-the-event insurance and will not award security for costs against a plaintiff that has taken out after-the-event cover, provided that policies do not contain terms by which the insurer can avoid liability to pay the defendant's costs.

Litigation

Delay in professional negligence claims
Ireland | 16 April 2019

The High Court recently dealt with a professional negligence claim following a retainer by a couple of a chartered engineering firm regarding the construction of their home in 2005. The defendants had brought a strike-out claim for a significant delay in the construction proceedings. On the facts of the case and owing to the fact that the defendant had been a professional person, the case was allowed to proceed on a limited basis.

Avoidance of life assurance policy for non-disclosure of material facts
Ireland | 03 January 2017

The High Court recently upheld a finding of the Financial Services Ombudsman that an insurer was entitled to avoid a life assurance policy on the grounds of non-disclosure. Significantly, the decision turned on the strength of the proposal form and serves as a useful reminder to insurers of the importance of a well-drafted proposal form.