Insurance & Reinsurance
“A no-nonsense terrier in court, who will tenaciously fight your corner” (Legal 500, 2016)
Clare’s practice includes a substantial insurance element both as a junior and on her own account.
Professional Indemnity Insurance
With extensive experience in both professional liability and insurance matters, Clare is frequently instructed to advise in respect of non-disclosure, aggregation, successor practice and the interpretation of professional indemnity policies. Her instructions have ranged across a broad range of professions including solicitors, mortgage intermediaries, surveyors and debt recovery agents. Clare has particular interest in, and experience of, dishonesty issues and has acted for both insurers and insureds in relation to such matters.
Clare (led by Mark Cannon QC) appeared for the successful insurers in the Supreme Court case of Impact Funding Solutions Limited v AIG Europe Limited  UKSC 57;  3 WLR 1422. Impact considered the ambit of the “trade debts” exclusion in solicitors’ professional indemnity policies and whether it excluded a solicitor’s liability to a disbursement funding provider. The Supreme Court also gave important guidance on the construction of clauses which, while worded in terms of exclusion, do no more than to define the extent of the liability or duty to which one party of a contract is to be subject.
Cases in this area include:
- Advising and acting for an insured valuer in an action against its professional indemnity insurers arising out of the scope of notifications made in the course of a policy year.
- Advising and acting for an insurer in an arbitration concerned with whether a notification was of a specific number of transactions or was a “can of worms” type notification.
- Acting for a solicitor against whom allegations of fraud, and claims for reimbursement, have been made by insurers who provided cover in three successive years.
- Acting for an insurer (led by Justin Fenwick QC) in an arbitration to determine who had first been notified of a number of claims with a value of about £2million. The case turned on whether, in the circumstances of this case, file requests by a lender comprised a notification of circumstances.
- Acting for an insurer (led by Justin Fenwick QC) in an arbitration to determine which insurer was on risk for a number of claims which were said to have been notified as part of a “can of worms” notification to insurers.
- Acting for a professional indemnity insurer (led by Justin Fenwick QC) in a claim against their former insured: Travelers Insurance Co Ltd & Denton Wilde Sapte v Advani  EWHC 623. The case was concerned with whether the former employee had acted fraudulently so as to entitle the insurer to recover costs which they had expended in defending both the former employee and her then employer in a previous action.
- Acting for a valuer’s professional indemnity insurer initially (alone) to advise on the scope of the cover and the year which was potentially on risk and then (led by the then Sue Carr QC) to advise on whether insurers were entitled to decline cover to the insureds for dishonestly failing to disclose the existence of a potential claim prior to the renewal of the policy.
Employers’ and Public Liability Insurance
In 2012, the Supreme Court handed down judgment in the Employers’ Liability Policy Trigger Litigation. This was the successful culmination of several years work during which Clare (led by Jeremy Stuart-Smith QC and Leigh-Ann Mulcahy QC) had represented Zurich Insurance Company at a 9 week trial in front of Burton J, a 3 week hearing before the Court of Appeal and a 2 week hearing in the Supreme Court. The case was concerned with the proper interpretation of employers’ liability policies which were written on an “injury sustained” or “disease contracted” basis and whether they would respond to mesothelioma claims at the time of inhalation or when the tumour developed. The Supreme Court found, by a majority, that such policies should respond at the date of inhalation.
Since Trigger Clare has been instructed to act on other matters concerning notifications to EL and PL insurers.
Clare’s insurance practice is not confined to professional indemnity and EL/PL cases. She is frequently instructed to act for insurers/insured in case arising out of other types of policies and is familiar with the particular issues around other specialist areas of insurance such as D&O, Motor Trade, Personal Accident and Fire policies.
Cases in this area include:
- Acting for a claimant construction company in a claim against insurers pursuant to the Third Parties (Rights Against Insurers) Act 1930 following insurers’ decision to withdraw cover from a party against whom the claimant had obtained an arbitration award. Clare was led by Justin Fenwick QC.
- Acting for the insured in his claim for an indemnity under his former employer’s personal accident insurance policy. The claim turned on the meaning of “accident” within the policy.
- Instructed by both insurers and the policyholder to make a binding determination as to whether prosecution costs incurred by a managing agent in the course of a Health & Safety prosecution were covered under an insurance policy.
- Acting for insurers to defend a claim for an indemnity arising out of property damage on the basis that the claim made was fraudulent and/or was supported by fraudulent devices.
Clare is the current editor of the “Members and Managing Agents at Lloyd’s” chapter in Jackson & Powell. She regularly gives talks and seminars on insurance law.