The received wisdom was always that the greatest exposures created by a cyber security incident or data breach were the costs of remediation, business disruption and any regulatory fine. Whilst litigation risk existed, it was generally felt that such losses would only be suffered in the context of a security event introduced into the supply chain. Accordingly, cyber coverage for many was a rather limited affair – dealing with the costs of remedying a breach, any impact on trading activity and, to the extent permissible, penalties and fines.
This may all be about to change, following the recent decision of the English High Court in Various Claimants –v- Wm Morrisons Supermarket PLC  EWHC 3113 (QB) and as a result of the much-heralded implementation of the General Data Protection Regulation in May this year.
A working group (chaired by Cooley partner, David Kendall) was established by the Financial Markets Law Committee (FMLC) to examine and report on the lack of clarity surrounding the distinction between a (re)insurer providing services in an EEA Member State and becoming established in that Member State (the “Issue”).
In its Report (available here), the Issue is examined with the UK as the primary jurisdiction and within the context of an EEA (re)insurer seeking to do business or doing business in the UK. Some analysis is also included of the law in other EEA Member States, and of related issues affecting non-EEA (re)insurers.
The report has not been reviewed, approved or adopted by the FMLC but it is published with the permission of the FMLC Secretariat (http://www.fmlc.org/), which was involved in early discussions and project coordination.
In Bluebon Limited (in liquidation) v (1) Ageas (UK) Limited (formerly Fortis Insurance Limited) (2) Aviva Insurance Limited (3) Towergate Underwriting Group Limited  EWHC 3301 (Comm), Mr Justice Bryan held that an electrical installation inspection warranty was a suspensive condition of the insurance policy, which covered various risks, including fire, and that any breach of such warranty would result in cover being suspended from the inception of the policy.
In Michael Jonathan Christopher Oldham v QBE Insurance (Europe) Limited  EWHC 3045 (Comm) Mr Justice Popplewell held that under a policy governed by the ICAEW Minimum Terms (the minimum professional liability coverage requirements mandated by the Institute of the Chartered Accountants of England and Wales), where it is determined that a claim is not covered by the policy, an assured must reimburse the defence costs that have been advanced by its insurer.
In RoadPeace v Secretary of State for Transport & Motor Insurers’ Bureau (Interested Party)  EWHC 2725 (Admin), the claimant – a road safety charity – claimed that certain provisions of UK law relating to compulsory vehicle insurance and compensation for victims of uninsured/untraced divers contravened European Directive 2009/103 (“the Directive”). Continue reading
In Tonicstar Limited v Allianz Insurance PLC & Ors  EWHC 2753 (Comm) Mr Justice Teare confirmed that where an arbitration clause specifies that the arbitrators should have “experience of insurance or reinsurance”, it will not be sufficient for a proposed arbitrator to have experience of insurance or reinsurance law, or having worked as a professional advisor to the insurance or reinsurance industry; the experience must be in the business of insurance or reinsurance itself.
On 11 October 2016 Cooley hosted a breakfast forum on the House of Commons Treasury Select Committee Solvency II Inquiry. We collated the views of those attending the forum and a few others who had not been able to make it and submitted a note of those views to the Committee. The Committee has now published its report (Treasury Committee publishes Report on EU insurance regulation) and we are pleased that the evidence that we submitted has been taken into account in the Committee’s findings and recommendations.