Insurance Law Monthly

In the August 2009 issue of Insurance Law Monthly, there was discussion of the decision of Flaux J in Axa Insurance Ltd v Akther & Darby Solicitors [2009] EWHC 635 (Comm), in which the learned judge discussed the limitation period available to ATE insurers in a claim against solicitors who had been entrusted with the selection, and then conduct, of personal injury claims protected by ATE insurance. The Court of Appeal, in Axa Insurance Ltd v Akther & Darby Solicitors [2009] EWCA Civ 1166 has, by a majority (with a seemingly reluctant dissent), upheld the ruling of Flaux J. The substantive issues were not considered and the case proceeded on assumed facts; the only matter under consideration was the preliminary issue of limitation. Given the sums at stake and the complexity of the issues, permission has been given for an appeal to the Supreme Court.

The Court of Appeal in Maher v Groupama Grand Est [2009] EWCA Civ 1191 has approved the first instance judgment ofBlair J, [2009] EWHC 38 (QB), as followed by Sharp J in Knight v Axa Assurances [2009] EWHC 1900 (QB), holding that a person injured in a road traffic accident elsewhere in the EC was entitled to bring an action in England, and that damages were to be assessed in accordance with English law although interest was tobe determined partly by English law and partly by the law of the place where the accident occurred. It is important to note that the ruling on damages is relevant only to accidents occurring before the coming into force of the Rome II Regulation in January 2009: under that Regulation, which determines the law applicable to a tort, damages are to be assessed in accordance with the law of the place in which the tort was committed and not the law of the place in which the claim is determined. The case was heard by Mummery, Moore-Bick and Etherton LJJ, and the leading judgment was given by Moore-Bick J.

Equitas Ltd v R&Q Reinsurance Company (UK) Ltd [2009] EWHC 2787 (Comm), a decision of Gross J, is a crucial test case on the operation of the ‘LMX spiral’ and in particular the obligation of reinsurers (or, more strictly, retrocessionaires) to accept claims which had been incorrectly aggregated and which otherwise encompassed uninsured losses at a lower level in the chain of placements. Gross J applied the accepted principle that there can be liability only for losses falling within the scope of both the direct policy and the reinsurance, but confined it to the immediate inwards and outwards contracts between the parties so that it remained possible for a reinsured to establish that it had suffered losses which led to excess of loss trigger figures being reached even though some of those losses were tainted by improper underlying claims.