The COVID-19 challenge: insurance coverage in the time of lock-down
In this article written for Thomson Reuters Practical Law, Neil Hext KC…
Neil Hext KC specialises in Insurance / Reinsurance, Professional Negligence, Construction and Commercial Law.
Recognised in the directories as a leading Silk in Insurance and Professional Negligence, he has been described as “incredibly talented and great to work with”, “ferociously bright, with an excellent eye for detail”, “an excellent analyst of claims” and “a very effective advocate” who “provides clear and business-focused advice“.
Neil is a highly respected trial advocate with an increasing appellate practice. He is at home in arbitration as he is in court, and also sits as an arbitrator. He is instructed in international arbitration.
His insurance/reinsurance practice covers the full range of coverage and policy issues, from material damage and business interruption claims, to public and professional liability and D&O claims. He has a particular interest in construction related insurance, including coverage under design and build policies for contractors and contractors all risks cover. He has significant experience in advising on coverage for historical abuse claims.
In construction and engineering, Neil’s recent experience includes a dispute arising out of the construction of a residential tower block in Canary Wharf, a claim arising out of the construction of a international sports stadium, and an adjudication relating to the joint insurance provisions of the NEC3 contract.
Neil’s professional negligence practice encompasses insurance brokers, lawyers, construction professionals, accountants, surveyors and other disciplines. He has been in a number of the recent important broking cases. He edits the chapter on surveyors in Jackson & Powell on Professional Liability.
In the commercial field he has particularly expertise in commercial fraud cases, including misappropriation of corporate assets and tracing claims. His practice encompasses the obtaining of urgent interlocutory relief, including freezing injunctions, Norwich Pharmacal orders and Bankers Trust applications.
Neil’s experience includes disputes arising out of share sale agreements, breach of warranty, commercial property transactions, development agreements, loan agreements, insurance and reinsurance, partnerships, joint ventures, guarantees and performance bonds, contractual construction, breach of fiduciary duty, director’s duties, constructive trusts, and misrepresentation.
He has a particular interest in commercial fraud litigation and asset tracing claims, having appeared in a number of high profile cases in this field. These cases have often involved international elements and disputes arising out of the ownership and management of companies and joint ventures. He has experience of tracing funds in foreign jurisdictions.
He regularly litigates in the Commercial Court and in arbitration, and has appeared on a number of occasions in the Court of Appeal. He is also instructed in international arbitration.
His practice includes an expertise in urgent interlocutory relief, including freezing injunctions, Norwich Pharmacal and Bankers Trust orders.
He has been described in the directories as “ferociously bright, with an excellent eye for detail”, his “judgment is very good in difficult situations,” and he “provides clear and business-focused advice”.
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“Neil is sensationally good, extremely measured and calm. He has great leadership.” “He is clever, thorough and has an eye for detail.” –Chambers & Partners, 2022
“Thoroughly approachable, responsive and highly experienced in insurance matters. He is my first port of call for large, complex insurance disputes. He delivers commercial and pragmatic advice, is a robust advocate, and a safe pair of hands.” – Legal 500, 2022
“He’s very sharp and very good on coverage matters.” “Neil is highly intelligent and analytical with an eye for detail. He is an excellent advocate, extremely knowledgeable and a pleasure to work with.” “He’s exceptionally good and is very commercial.” – Chambers & Partners, 2021
“Neil has a finely tuned intellect, is logical and calm, and his judgement is excellent. He is also very down to earth and engaging, and his manner inspires confidence and respect in equal measure.” – Legal 500, 2021
“A very impressive and compelling advocate. Voraciously intelligent but nevertheless able to explain complex points clearly.” “Clear thinking and decisive with a good grasp of strategy and commercial outcomes.” – Chambers & Partners, 2020
“Straightforward, highly analytical and impressive on his feet.” – Legal 500, 2020
“Fantastically detailed and very diligent.” “He has a great eye for detail and is able to drill down to the heart of the most complex of cases. Highly intelligent and analytical.” – Chambers & Partners, 2019
Neil acts for both insurers and insureds dealing with the entire range of coverage issues. He has experience that is both broad and in depth, encompassing issues of non-disclosure and misrepresentation, breach of warranty, application of conditions precedent, as well as aggregation, the Third Parties (Rights Against Insurers) Acts, subrogation and notification of circumstances in claims made policies. His experience includes public liability policies, material damage/business interruption, directors & officers insurance, construction/erection all risks, employers’ liability, jewellers block policies and professional indemnity. He regularly advises both insurers and insureds on policy response, including on questions of fraud, and has also advised insurers on drafting of policy terms.
Neil has a particular interest in construction related insurance and advises on design and build cover and contractors all risks policies. He has expertise in the effect of the joint insurance provisions in the standard construction forms and significant experience in the issues that frequently arise as to the width of cover for construction defects following a notification.
He has acted in a number of cases involving claims on financial advisers’ liability policies arising out of FCA mandated remediation schemes, dealing with coverage issues, and in particular the threshold for notification of circumstances.
He has particular experience in relation to the arguments that commonly arise in relation to the solicitors’ minimum terms, including the meaning and effect of the aggregation clause, and its application to bulk retail practices. He also advises on public/employer’s liability cover for historical abuse claims.
Neil regularly acts in insurance broking cases and has appeared in a number of the recent important cases in this area.
He is recognised in Chambers & Partners as a leading Silk in Insurance, “a silk known for the quality of his advice”, “gets to the nub of things very quickly”, “he delivers robust, comprehensive and well-formulated commercial advice and products exceptional advocacy” (Chambers & Partners, 2018); “technically excellent and a real fighter”, “Incredibly bright and hard working, and particularly good on highly technical insurance issues” , “he’s an absolutely brilliant teamworker and someone who looks at the detail and picks up points other people would miss“ (Chambers & Partners, 2017); “ferociously bright, with an excellent eye for detail” (Chambers & Partners, 2016).
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“He’s very calm, his written work is exceptional and his advocacy is very smooth.” – Chambers & Partners, 2022
“He is incredibly calm, drafts beautifully and has a very good way with the judges. A very balanced advocate.” “Neil is highly intelligent and has an analytical eye for detail. He is an excellent advocate who is extremely knowledgeable and a pleasure to work with.” – Chambers & Partners, 2021
“He is highly intelligent and analytical, and has a keen eye for detail.” – Legal 500, 2021
“Tackles difficult issues and difficult clients with aplomb.” – Legal 500, 2020
Neil’s practice in this area focuses on lawyers, brokers, construction professionals, accountants and surveyors. He deals with all aspects of lawyers’ liability, from solicitors’ negligence to vicarious liability for fraud. He has been instructed on a number of high value and complex cases, including claims arising from the purchase of a football club, an alleged conspiracy to appropriate copyright material, and a US hedge fund’s finance of a property development in Pakistan.
His work in the context of brokers dovetails neatly with his insurance practice, with claims frequently being brought against both insurers and the brokers. His experience here encompasses the brokers’ duty to obtain insurance that meets the insured’s needs, to ensure that the insured understands its duty of utmost good faith, and to explain relevant exclusions, warranties and conditions precedent. It also includes the difficult causation and scope of duty issues that can arise where breach of duty is established. He has acted in a number of the recent important cases in this area.
He has considerable expertise in relation to disputes arising from tax mitigation schemes, having been involved in litigation over the Evolution and other film finance schemes. He has dealt with numerous professional liability cases with a tax element, acting for or against lawyers, accountants and financial advisers. He has also had significant experience in the management of group litigation.
Neil’s practice also includes claims against construction professionals and accountants. He recently acted for the Claimants in a €40m claim against accountants and solicitors. He acted for actuaries in a €30m claim arising out of the purchase of a pension fund.
He edits the chapter on surveyors in Jackson & Powell on Professional Liability.
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Neil is frequently instructed in cases that have a construction or engineering element. He has significant experience of mastering the technical issues that arise, and quickly assimilates the detail. He is used to dealing with the complex contractual arrangements that apply, such as those relating to delay, variation, termination, completion and acceptance standards.
He has significant experience in arbitration (both as advocate and arbitrator) and has been engaged in numerous international arbitrations. He is currently instructed in a set of three ICC arbitrations, all arising out of the construction of a petro-chemical processing plant in the Middle East
His experience includes litigating and advising upon the effect of the joint insurance provisions in both the JCT and NEC standard forms.
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Neil has expertise both in breadth and in depth in relation to property damage cases. Many of his cases relate to fires or floods, whether they be claims brought against a defendant alleged to be responsible for starting a fire, or ancillary claims on an insurance policy or against a broker. He has significant experience of the technical issues that commonly arise, including investigation of the cause of the fire, issues relating to fire detection, prevention and spread, architectural/engineering questions arising out of the design of properties, compliance with building regulations, and product liability claims.
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Neil has significant experience in the context of information technology cases. He has recently acted for an IT contractor in a DIAC arbitration. He acted in two major insurance claims arising out of IT projects that have failed and is familiar with the complex issues arising out of delay in the context of a development programme and alleged failures to meet specification.
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