Commercial Litigation – Private & Commercial Litigation Solicitors | Insolvency Legal Advice |

Does agreeing to “reasonable costs” mean assessment on the indemnity basis?

admin — Tue, 16 Nov 2021 10:29:28 +0000

Yes, held the Commercial Court.

In Alafco Irish Aircraft Leasing Sixteen Ltd v Hong Kong Airlines Ltd [2019] EWHC 3668 (Comm) the parties had entered into a lease which contained a clause that the Defendant (who was the lessee) was to pay all of the Claimant’s (the lessor’s) “reasonable costs and expenses” of litigation, including its legal costs.

The Claimant had successfully obtained summary judgment against the Defendant and sought costs on the indemnity basis (rather than the standard basis), which meant that their costs did not have to be proportionate. Moulder J commented in particular that the word “reasonable” did not mean that indemnity costs could not be sought.

It is a common clause in lease agreements that lessees agree to paying the lessor’s reasonable costs and expenses, which include legal costs in the event that action is needed to recover arrears of rent, for example. Often, a lessee will sign a lease agreement including this clause without realising the potentially catastrophic consequences.

It is important that before entering into a lease you seek advice in relation to its terms in order to protect your position.

For further information on the above, please contact us on 0207 467 3980 and speak to a member of our dispute resolution team now. Alternatively, email us with your query at info@jamesedwardassociates.com and we will be sure to call you back straightaway at a time convenient for you. All communications will, of course, be dealt with in the strictest of confidence.

Commercial Debt Recovery: Pre-Action Protocols and Conduct

admin — Tue, 16 Nov 2021 10:23:08 +0000

The court will expect the creditor to have sent out a Letter Before Claim to the debtor, which would set out the basis of their claim and allow a reasonable amount of time for the debtor to fully respond. For straight-forward cases, it is expected that a response should be received within a period of around 14 days for companies or 30 days for individuals, although this can be extended if the matter is more complex.

As the parties will have set out the basis of the claim and the defence in response, they will be better placed to understand where their differences lie. Upon understanding the points in dispute, the parties are able to discuss those points in further details and to narrow down the issues in the hope of reaching an amicable settlement.

During the pre-action stage, the parties should consider whether they would be agreeable to settle the potential claim by entering into a payment plan, which could potentially preserve a business relationship that may otherwise be lost if legal proceedings were issued. Although a claimant may see a payment plan as a delay to getting paid, there is no guarantee that legal proceedings be any quicker in achieving the desired outcome.

Should the parties not be able to settle following the initial correspondence and communication, they should consider whether alternative dispute resolution (ADR) would be an appropriate next step, as the court insists on litigation being used by the parties as a last resort. Such ADR could include mediation, in which the parties would attempt to resolve their differences with the assistance of an independent mediator.

The pre-action stage will also provide the parties with an opportunity to consider whether expert evidence would be of any value, particularly in relation to the points in dispute.

The court expects the parties to have complied with these protocols and, if any party has unreasonably not complied, there could even be consequences in relation to costs. Should a party have not complied with the protocols without good reason, their conduct may be referred to the court by the other party when dealing with the issue of costs in those proceedings. An example of a party’s non-compliance of the protocols could be their unreasonable rejection of the other party’s offer of mediation, which could have led to the parties resolving the claim without unnecessarily utilising the courts time and incurring costs.

If you are owed money and are considering legal proceedings, you should make every effort to ensure that you have complied with the CPR, including the Pre-Action Protocols and Conduct. Given the potential costs penalties that could be imposed on you by the court for non-compliance, you may wish to seek independent legal advice and assistance before deciding to take the step of issuing a claim.

How We Can help

Our solicitors based in London have over 90 years’ experience in providing specialist legal advice on commercial debt recovery and litigation.

Based in the heart of legal London, just a stone’s throw away to the Royal Courts of Justice, the Employment Appeal’s Tribunal and Inns of Court.

Make an Enquiry Now

For more information please call us on +44 7441912822, complete a Free Online Enquiry or email info@jamesedwardassociates.com and one of our lawyers will contact you.

Can foreign litigants be bound by English jurisdiction clauses contained in contracts to which they are not a party

admin — Tue, 16 Nov 2021 10:19:24 +0000

Airbus SAS v Generali Italia SPA and others [2019] EWCA Civ 805

In its recent decision Airbus SAS v Generali Italia SPA and others, the Court of Appeal dismissed an appeal against a declaration that the English court had jurisdiction to determine a claim by insurers concerning damage to an aircraft pursuant to an English jurisdiction clause in a warranties agreement to which they were not a party.

What is an exclusive jurisdiction clause?

Under a jurisdiction clause, the parties to a contract can elect which courts will have the rights to adjudicate any disputes which arise out of the contract. More specifically, an exclusive jurisdiction clause confers jurisdiction on the courts of a particular country to the exclusion of any other.

Example:

“Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.”

What are the specific facts of the case?

Airbus SAS (“SAS”) is a French company that manufactures various types of aircraft. Under a purchase agreement dated October 2005, SAS sold several aircraft to Air One; a low-cost Italian airline.

The aircraft purchased came to be operated by another Italian company called Aitalia through a series of agreements, and ultimately, a sub-lease.

The sub-lease was concluded between a company called Mainstream and Aitalia. The agreement was governed by English law and stipulated that any disputes would be in the exclusive jurisdiction of the English courts. In addition to the sub-lease, a warranties agreement was entered into between Airbus, Mainstream, other related parties, and Aitalia which also purported to give exclusive jurisdiction to the courts of England.

In September 2013, an aircraft operated by Aitalia was forced to make an emergency landing at Rome’s Fiumicino Airport with the landing gear partially retracted which resulted in significant damage. Italian investigators found that a defect in the right hand main landing gear door actuator acted as the catalyst to this incident.

Aitalia was indemnified in respect of circa $11 million worth of damage caused by the accident by their insurance company, Generali Italia. However, in July 2017, Generali Italia commenced proceedings against Airbus in Italy seeking damages for negligence under Italian law (specifically, the Italian Civil Code); the basis of the claim being that Airbus had failed to take preventative action it should have in the light of earlier incidents involving similar aircraft.

A claim for damages was made in the Italian courts by Generali Italia both:

In its capacity as insurer of Aitalia, exercising rights of subrogation;
On a non-contractual basis under art. 2043 of the Italian Civil Code

Airbus, in its reply, sought a declaration that the proceedings commenced against it were commenced contrary to the terms of the warranties agreement which contained an exclusive jurisdiction clause (clause 13.2) that read:

“the parties hereto irrevocably agree that the courts of England shall have
exclusive jurisdiction to settle any disputes arising out of or in connection
with this agreement or any non-contractual obligations connected with it.”

The Judgement

At first instance it was held by Moulder J that the English court had jurisdiction of the claims by virtue of the exclusive jurisdiction clause.

In determining how clause 13.2 should have been construed, the judge found that Airbus had successfully satisfied the test of ‘good arguable cause’ and that “the intention of the parties was that clause 13.2 should apply to all disputes arising out of or in connection with the warranties agreement, including substantive claims under the warranties.”

To this end, the judge also held that the claim advanced by Generali Italia was “connected with” the warranties agreement because it pertained to an alleged manufacturing defect of one of the components of the Aircraft.

The Appeal Judgement

In the appeal, the appellants argued that they could not be in breach of an exclusive jurisdiction clause to which, as insurers, they were never parties to and accordingly there could be no basis on which the English court could make a declaration on them.

The court held that there was at least ‘good arguable cause’ that the claim commenced by the appellants was sufficiently closely connected with the warranties to fall within the scope of the exclusive jurisdiction clause in the warranties agreement and accordingly, the court dismissed the appeal and held that the English court has jurisdiction to determine the claims.

What is the significance of this case?

This case highlights the Court’s approach in determining whether parties can be bound by exclusive jurisdiction clause and the relevance of claims being ‘closely connected’ enough to be caught by such a clause. Careful consideration and early advice should be sought when parties are considering relying on such a clause and the impact it has on another parties.

How we can help

Our experienced commercial solicitors based in London have over 90 years’ experience in providing specialist legal advice on Commercial Dispute Resolution and Litigation

Not only are we based in the heart of legal London, just a stone’s throw away to the Royal Courts of Justice, the Employment Appeal’s Tribunal and Inns of Court, but as members of the International Legal and Accounting Solutions (ILAS) we can help you via our network of trusted professional advisors both in the UK and internationally.

Make An Enquiry Now

For more information please call us on +44 7441912822, complete a Free Online Enquiry or email info@jamesedwardassociates.com and one of our lawyers will contact you.

The Risks of Presenting D.I.Y Petitions

admin — Tue, 16 Nov 2021 10:16:06 +0000

Calling all creditors! Whilst you might think the procedure for presenting a petition against a debtor is simple, it seems that the English Legal System is keeping you on your toes!

The Risks of Presenting D.I.Y Petitions

Recently we have had an influx of creditor client’s approaching us to assist them with the amending and filing of bankruptcy and/or winding up petitions (“WUP”) against debtors that they have prepared themselves and presented at court. If the court finds an error in the petition, depending on the materiality of the error, the court may:

Waive the error, making any necessary amendments to ensure that the winding-up order is drawn up correctly;
Grant permission to amend the petition (possibly requiring the petitioner to re-serve the amended petition or give notice again) and adjourn the hearing of the petition in the meantime;
Dismiss or refer the petition.

If you have made an error in the petition you are entirely in the court’s hands in respect of how that error will affect the insolvency proceedings going forward. When exercising their discretion, the court will take into account risk that the error has prejudiced other parties (for example, an incorrect name may have prevented creditors from knowing which company the winding-up hearing was in respect of).

Relatively common errors include errors in respect of the registered address of the company. Such minor errors will usually be waived or amended at the hearing. However, should the court think the error is sufficient to require the petition to be re-served or notice in the gazette to be provided again, at this stage, there is a fair bit of work to do to get the petition back on track, not to mention the additional costs that you will incur in dealing with the additional requirements set by the court.

An example of such an error can be where a creditor states that a debtor company is an undertaking within Article 1.2 of the EU Regulation on Insolvency Proceedings when it isn’t (i.e. (m) on the current COMP 1 Form). This is a fundamental mistake that has legal ramifications that the creditor may not have considered. In this instance, we were able to step in and obtain an adjournment of the petition hearing to amend the petition, re-serve the amended petition and give notice again in the Gazette.

Often a creditors main aim is to recover monies from debtors as quickly as possible and at as little costs as possible. Unfortunately, instructing a solicitor to help you amend and re-serve petitions is often more costly than if the solicitor had prepared and presented the petition for you initially plus it save you an awful lot of stress!

Please contact us on 0207 467 3980 and speak to a member of insolvency team now – it might be that your case will qualify for and can undertake on our fixed fee basis. Alternatively email us with your query at info@jamesedwardassociates.com and we will be sure to call you back straightaway at a time convenient for you. All communications will, of course, be dealt with in the strictest of confidence.

Fraud law

admin — Tue, 16 Nov 2021 10:04:32 +0000

“Only when the tide goes out do you discover who has been swimming naked” (Warren Buffett)”

No matter how large or small your business, no one can ignore the consequences of fraudulent activity; which can have a devastating effect on an entity’s ability to trade.

The number of frauds recorded by police has risen by nearly 60% in five years, according to recently released official crime figures.

The Office for National Statistics (ONS) has reported that more than 230,000 frauds were recorded in England and Wales in the year to June 2013.

This represented an increase of more than a fifth on the previous twelve months and a 59% rise in five years.

Introduction to James Edward & Associates’s Fraud Department

With our dual specialisms in commercial litigation and insolvency law, James Edward & Associates is well qualified to advise on white-collar fraud, breach of fiduciary duty and misfeasance claims.

Our clients include accountants, auditors and other professionals, governments, small medium-sized enterprises, local authorities and private individuals.

We are regularly asked by other central London law firms to act as independent Supervising Solicitors to oversee and report on the proper execution of Civil Search Orders.

We also often work for court appointed office holders (e.g. administrators and liquidators) in relation to claims against directors or third parties or taking steps to secure documentary evidence such as bank statements.

In addition we also act for companies and individuals faced with claims made by insolvency practitioners both in the UK and overseas.

James Edward & Associates’s fraud team can also advise creditors on the best means of bringing claims for damages, when they have been victims of a fraud.

We can issue claims against those responsible for the demise of companies and we are able to aggressively pursue the recovery of investments on behalf of creditors and other stake holders.

Fraud case studies

admin — Tue, 16 Nov 2021 10:03:24 +0000

Case Study 1 (Business fraud)

We were asked by a firm of accountants to speak to their client, a large limited company within the pharmaceutical sector.

The in-house cashier and bookkeeper had misappropriated company funds but because of his position of trust and the large turnover of the business, the fraud had for many years gone undetected.

The level of sophistication of the fraud was such that even the company’s auditors had not picked up on the long-running misfeasance.

Although the cashier was charged with various criminal law offences, this did not necessarily assist the business to recover the money it had lost.

Working with the board of directors, James Edward & Associates recommended various steps to recover the misappropriated funds.

This included pleading the criminal conviction within a civil action against the bookkeeper.

We also devised a plan to recover assets from the perpetrator of the fraud, seizing assets, including his house and investments. It also involved a consideration of bankruptcy law.

Case Study 2 (Local Authority fraud)

We also have experience of assisting local authority clients, to recover funds involving, amongst other things, the misappropriation of car parking receipts.

The sum stolen involved hundreds of thousands of pounds, with the perpetrator having paid deposits on two luxury motor vessels.

James Edward, initially working with the forensic and financial unit of the Metropolitan Police, was able to devise and execute a recovery strategy involving civil proceedings.

The latter involved a worldwide freezing injunction and the recovery of the deposits paid by the former employee and the recovery of other assets.

Case Study 3 (Land banking scams)

Land banking scams are when small plots of agricultural land are advertised on the internet or over the phone as investment opportunities.

Sometimes land banking scams are often committed after fraudsters take stands at lifestyle exhibitions.

The plots tend to be sold in areas where house prices are high, which might be near urban areas or close to zones of land that have been allocated for development.

Victims are told that once planning permission has been granted, the loan can be sold to a developer for a good profit. In reality, there is often virtually no development potential.

Because of our insolvency and commercial litigation expertise, we have been instructed by liquidators to investigate and pursue former company officers, which often involves cross-border claims.

Spain and South America

James Edward & Associates’s senior partner, James Edward is a fluent Spanish speaker having lived in Spain for many years.

We have also developed a trusted network of specialist local Spanish lawyers, forensic accountants and investigators around Spanish speaking countries.

“POST BREXIT – HOW DO I RECOVER A DEBT FROM A CLIENT IN EUROPE?”

admin — Tue, 16 Nov 2021 09:58:06 +0000

Introduction

So you did some work for a client in Madrid and you are based in England.

In the event of non-payment, how do you recover the sum due to you under your invoice for professional accountancy services provided?

Prior to the regulations referred to below, if a small business or consumer needed to recover money from a debtor in another EU country, such recovery was difficult, time consuming and expensive. Challenges included differences in national or domestic laws, the cost of hiring legal expertise and translating documents.

Accordingly, the European Commission proposed a European wide expedited regime aimed to ease the recovery of cross-border debts for both citizens and businesses.

Jurisdiction

Dealing as we do on a daily basis with cross-border debts at James Edward & Associates, we always advise clients to ensure that they regularly update their terms of business. For the sake of expediency, one of the main clauses we like to see in agreements reads something along the following lines:

“This engagement letter is governed by and construed in accordance with English law. The courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference, concerning this engagement letter and any matter arising from it”.

It is likely that post-Brexit, the EU member states will still recognise a choice of English law so its perhaps of paramount importance that such a clause is inserted into your contracts sooner rather than later.

Presently, there are two useful tools in a creditor’s armoury:

European Enforcement Order (EEO)

The chances are that if you do have such a clause in your terms of business you can secure a judgment in the English court. At the very least it will encourage your debtor to engage with you in the English courts which will mean that your debtor will probably have to appoint a solicitor to deal with the matter. Who knows he may decide at that point that it would be more beneficial to pay your invoice rather than hire a lawyer!

If the defendant does not reject the claim or fails to appear in the proceedings after initially objecting to the claim and you obtain a judgment what next?

Member states can enforce ‘uncontested’ judgments under the European Enforcement Order Regulation. A judgment is considered ‘uncontested’ if the judgment comes via a consent order approved by a court, or if the defendant either did not reject the claim or failed to appear in the proceedings after initially objecting to the claim. If the EEO Regulation applies, a creditor may apply for an EEO certificate from the court where the judgment was entered.

Once certified, the judgment is automatically enforceable in the court of any other member state as if the judgment had been made in the court of the member state.

Example

In 2015 James Edward & Associates acted for an English lady resident in Spain who had secured a judgment in the Spanish courts against another British couple who we discovered had assets in London.

Having registered the Spanish judgment in the High Court in London, we were able to place a Charging Order over the judgment debtor’s London property which we found through our tracing team. The settlement of the judgment followed swiftly!

European Payment Order (“EPO”)

Although a judgment on an ‘uncontested’ claim may be obtained as above in addition as of 12 December 2008, use may be made of the uniform procedure called a European Order for Payment process.

If a European Order for Payment is obtained, this order is automatically enforceable without the need for a declaration of enforceability nor a European Enforcement Order certificate.

An EPO is automatically enforceable in every EU country if it is uncontested by the defendant.

Example

By way of example, we act for condominiums of owners in Portugal who raise management charges through the urbanisation against British residents owning second homes on the Algarve.

Once we have details of the management charges from our Portuguese clients, we can apply for an EPO in an English county court and once obtained, the EPO can be enforced like any other English judgment.

This could be via the Enforcement Officer (formerly known as the Sheriff), a Third Party Debt Order, Attachment of Earnings Order or by placing a Charge over the debtor’s home.

What is the position post-Brexit?

It is unlikely that there will be an immediate change.

The UK’s exit from the EU will not take place immediately. The procedure for a member state that withdraws from the EU is set out in Article 50 of the Lisbon Treaty. It provides for the UK to negotiate a withdrawal agreement with the EU and for the Treaties to apply to the withdrawing state after two years, unless there is unanimous agreement to extend that period.

Author’s note

The author, James Edward is a solicitor and partner at James Edward & Associates, based in central London – info@jamesedwardassociates.com– Twitter | https://twitter.com/jbsummit

Disclaimer

The information and any commentary on the law contained in this article is provided free of charge for information purposes only. No responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member or employee of James Edward & Associates. The information and commentary does not and is not intended to amount to legal advice and is not intended to be relied upon. You are strongly advised to obtain advice from a solicitor about your specific case or matter and not rely on the information or comments in this article.

New Changes to CPR Part 36 Offers – Effective from 6 April 2015

admin — Tue, 16 Nov 2021 09:50:41 +0000

The purpose of CPR Part 36 is to encourage settlement between parties before trial. Its primary effect is to impose cost sanctions on a party who declines an offer to settle a dispute pursuant to Part 36 and subsequently then fails to achieve a better result at trial.

The new rules will be in force on Part 36 offers made on or after 6 April 2015, albeit the rules relating to Part 36 offers in split trials will apply where the split trial begins on or after that date, even if the offer was made before it.

CPR Part 36 can be located here, however the key changes are included below:

Improved offers: new CPR 36.9(5)(a) sets out that where an offeror has amended the terms of a Part 36 offer to make it more advantageous to the offeree, it shall be treated as a new offer (rather than a withdrawal of the original offer).
Time-limited offers: new CPR 36.9(4)(b) allows a Part 36 offer to be automatically withdrawn in accordance with its terms after expiry of the relevant period.
Split trials: new CPR 36.16 permits the trial judge to be informed of the existence of any Part 36 offer relating only to the concluded issues but not the terms, after judgment has been given on the preliminary issues.
Counterclaims: new CPR 36.2(3) confirms that a Part 36 offer may be made in respect of a counterclaim or other additional claim.
Appeals: new CPR 36.4 deals with the application of Part 36 appeal proceedings.

Sunny Places for Shady UK Criminals – Management Receivership Assets in Spain

admin — Tue, 16 Nov 2021 09:37:41 +0000

As globalisation of our society continues to gather pace Management Receivers are having to grapple with different legal systems as they attempt to trace and then recover assets in foreign jurisdictions.

Since the 1960’s Spain has been a known favourite for many UK criminals trying to escape the clutches of the long arm of the law.

Accordingly it comes as no surprise that the Home Office has announced that the UK organised crime minister and Spanish security minister met in Madrid in early 2014. The focus of this meeting was to agree how the two countries could co-operate more closely with one another in the recovery of financial assets from fugitive defendants.

In particular the UK and Spanish Governments will be seeking to enhance cooperation in confiscation cases with the Crown Prosecution Service specialists based in Spain.

The Home Office has also revealed that more UK criminal’s assets are thought to be in Spain than in any other EU country. Accordingly now more than ever it’s paramount that Management Receivers are able to quickly register their judgments abroad and enforce the same to prevent assets being dissipated.

Spanish Realisations

A major frustration for Management Receivers comes from the delay in obtaining a recognition order thereby delaying the enforcement stage which places assets at risk.

A Management Receiver might be thinking:

The Spanish Courts are slow. The judgment will never be registered in time; and

border realisations are prohibitively expensive.

We at James Edward & Associates have a proven method of registering judgments fast by utilising European law along with our specialist lawyer agents in Spain ensuring a swift and effective realisation of Spanish assets. We have also used other methods to expedite the process by liaising with the Spanish Land Registry.Why not take a look at our flow diagram which describes some of the stages required to recognise Management Receivership Orders in Spain by clicking here.

Our Unique Service

We offer:

A Spanish speaking senior partner who will supervise the process of recognising the English court order in Spain and the realisation of Spanish property;

Spanish speaking notaries with sound knowledge of the Spanish legal process;

A Spanish Official Judicial Translator;

Specialist lawyers in Spain;

English valuers and property consultants based in Spain; and

Central London offices based minutes from the Royal Courts of Justice and Foreign and Commonwealth Office (“FCO”).

We have assisted Management Receivers in applying for recognition of English judgments and our specialist lawyers, valuers and agents in Spain can also advise on the sale and possession of Spanish real property.

For further information please click here to send an enquiry and we will contact you within 24 hours or otherwise why not contact our insolvency and foreign enforcement team on 0207 467 3980.

Third Parties (Rights against Insurers) Act 2010

admin — Tue, 16 Nov 2021 09:27:22 +0000

Do you have a potential insurance claim against a bankrupt or company in liquidation? Perhaps you had a claim against an individual or company and it has since been declared insolvent. Or you could be an insurer and your insured has been declared insolvent.

If so the following article may be of interest.

Third Parties (Rights against Insurers) Act 2010

The above legislation provides a revised and easier procedure for third parties to pursue a claim directly against liability insurers where the insured has or will be declared insolvent.

When Will It Take Effect?

The latest ministerial statement dated Thursday 25 April 2013 states that a number of amendments are intended to be added and that the new Act will come into force “as soon as reasonably possible after these amendments have been made.” It therefore remains that third parties will be subject to the provisions of the old regime.

The Old Regime

The Third Parties (Rights against Insurers Act) 1930 ensures that where the insured incurs liability to a third party but was declared insolvent, the insurance proceeds will be protected from the insured’s insolvency.

Without such protection the proceeds would otherwise vest in the Trustee in Bankruptcy or Liquidator who would distribute the proceeds to the insolvent’s creditors. This would mean that the third party would only receive a fraction of what it had claimed.

Under the 1930 Act procedure the insured’s rights are automatically transferred to the third party upon the occurrence of specified insolvency events. Once transferred the third party can sue the insurer directly.

The potential realisation of the proceeds of the insurance policy thereby fall outside of those assets which would otherwise form part of the bankruptcy or liquidation estate.

Problems with the 1930 Act

These include:

The necessity of the third party to first issue proceedings to establish the existence and amount of the insured’s liability before it can issue proceedings against the insurer itself;
The old regime fails to keep pace with developments in company and insolvency law;
It does not include certain types of liability which were voluntarily incurred by the insured;
The right to information does not arise until liability of the insured is established;
The third party is only able to exercise the right to information against a limited number of people;
Rights transferred to the third party are subject to any defences which the insurer could have used against the insured. This means that insurers could rely on technical defences to defeat third party claims for example the insured failing to notify the insurer of the claim, even if the third party has given this notification.

The New Act

The new regime includes the following changes:
- The process is consolidated into a single set of proceedings allowing the third party to issue proceedings directly against the insurer and resolving all issues (including the insured’s liability) within those proceedings;
- If the insured was a defunct body which had been struck off the register of companies, the third party no longer has to institute proceedings to restore it;
- The new Act improves the third party’s rights to information about the insurance policy, allowing the third party to obtain information at an early stage in order to enable an informed decision to be taken about whether or not to commence or continue litigation;
- Under the new Act the third party can ask for information from the insured or any other person able to provide it “Ã‚Ëœwithout due difficulty” if it is a document under his control or from his own knowledge. This is with the caveat that there is a reasonable belief that the insured is liable and is a relevant person as described in one of the listed insolvency procedures. The person receiving such a notice must respond within 28 days;
- The insurer may rely on any defences he may have had against the insured however the new Act removes the ability for the insurer to rely on the technical defences mentioned above allowing the third party to fulfil conditions that otherwise had to be fulfilled by the insured or absolving the third party of the requirement to provide information or assistance to the insurer if that condition cannot be fulfilled in the instance of the death of a bankrupt or dissolution of a corporate body; and
- The new Act will be retrospective.

Our Comments

As the new Act removes barriers to a potential claimant’s investigation, is clearer on the process of notification and eliminates the ability for insurers to rely on certain defences it follows that claims against insurers will increase.

How can we help you?

If you are a potential claimant we can:

1.) Obtain the insurance policy or prepare the letter before action if such a policy is being withheld; and

2.) Once the policy is obtained we can analyse the same and look into the merits of pursuing a claim against the insurer.

If you are an insurer we can similarly assist with an analysis of your position and provide advice on defence and/or settlement.

If you wish to discuss your matter please do not hesitate to give us a call on 0207 467 3987.

Disclaimer

This Blog is up to date as at 4 December 2013.

The information and any commentary on the law contained in this article is provided free of charge for information purposes only.

No responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member or employee of James Edward & Associates. The information and commentary does not and is not intended to amount to legal advice and is not intended to be relied upon.

You are strongly advised to obtain advice from a Solicitor about your specific case or matter and not to rely on the information or comments in this article.