James has substantial experience of advising and representing insurers, insureds and insurance brokers in all manner of disputes arising from insurance policies, including those relating to pre-inception breaches (under the common law and under the Acts of 2012 and 2015); declinature of claims; the construction of the parties’ rights more generally; and claims under the Third Party (Rights Against Insurers) Acts 1930 and 2010.
Example cases of note include:
- Test case in relation to a claim on a public and products liability insurance under the TP(RAI)A 1930. Questions of whether the insurer was entitled to decline the claim for breach of a condition requiring ‘you’ (ie. the insured) to give notice of the claim when the insured had not provided notice but the claimant’s solicitor had; and as to the extent of the insured’s obligations to provide documents which may have existed at some time but appeared to have been lost through no fault of the insured by the time of the request.
- Test case as to proper interpretation of legal expenses insurance policy and whether the insurer was estopped from relying upon the policy terms by reason of having paid out on numerous other policies when the insured had been guilty of the same breach. The case was relevant to hundreds of other policies written by the same insurer with clients of the same firm. The case raised complex questions in relation to estoppel given the representation was to the claimant’s agent (the solicitor) in relation to policies held by persons unknown to the claimant.
- TCC claim for c. £6m. Representing claimant purchasers of a development of 51 flats created out of a former office block suffering from wide ranging defects including the use of allegedly flammable cladding and lack of fire stopping between flats. Complex claim against various parties including the new-build home warranty insurer.
- Advising on the merits of potential claims under a bespoke policy insuring against cancellation of contracts to supply goods and services for the 2020 Tokyo Olympics.
- Claim on an event cancellation policy arising from the cancellation of a gig due to be played to c.30,000 people by an internationally well-known band. Interpretation of various conditions as to insurers’ liability.
- Advising on the merits of insurers’ imposition of new terms on a missing beneficiary insurance policy pursuant to the Consumer Insurance (Disclosure and Representations) Act 2012, including the proper interpretation of the statement of facts document and whether the requirement of a lack of reasonable care was made out.
- Claim against a home and contents insurer following its loss or disposal of the insured’s possessions after a fire and before the insured was able to value them. The insurers sought to reduce the claim in reliance on an alleged understatement of the value of the contents of the property.
- Advising an insurance broker on a claim for commission against an insurer arising from a binding authority granted by the insurer to an underwriter. Raised issues of the extent to which a broker must be the effective cause of the transaction giving entitlement to commission (and whether the broker’s role could be proven) and as to interpretation of the notice clause in the binder.
- Claim under a motor trader’s block policy regarding a Rolls Royce Phantom lost in an arson attack. Claim for circa £100k.
- Claim against insurance broker for secret profits made by failing fully to disclose commission paid to it by the insurer, which commission was in addition to a fee charged directly to the insured by the broker.
While at Fishburns:
- Advice on policy construction: whether various allegations by the same client in relation to the same construction project ‘arose out of’ a circumstance notified to insurers and whether they constituted one ‘Claim’ or two, so that they attached to the same policy year. Claim for circa £5 million.
- Conduct of successful defence of two professional indemnity policy claims in respect of two £30 million losses arising from refurbishment of a London hotel and a PFI project for construction of a major scientific establishment, including interviewing/examining many underwriting witnesses and drafting the policy avoidance letter.