The special features of mesothelioma (its “indivisible” nature and its long latency) have thrown up many complex legal questions resulting in the creation of special mesothelioma jurisprudence and legislation governing the liabilities arising from the disease and how insurance should respond. Those developments have taken nearly 20 years, but the courts have not (yet) directly addressed how mesothelioma claims should be allocated to reinsurance programmes. None of the decisions in the “Fairchild enclave” directly addresses reinsurance.
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In The Cultural Foundation v Beazley Furlonge and Others  EWHC 1083 the Commercial Court considered the division of liability between primary and excess insurers in circumstances where it was unclear to which year the relevant claims had been notified. There were several other preliminary issues in this case, however the decision as to notification is of the greatest significance.
Cooley partners David Kendall and Mark Deem are amongst the panellists at this week’s 2018 IRLA Congress in Brighton. David will be joining a ‘Regulatory issues panel’ with Jane Portas (PwC), James Bolton (Quest) and Jamie Stacey (RMSL) at 10.30 on Wednesday 16th. Later that day Mark Deem is joining the midday panel discussing ‘Insurtech – what impact will it have’ along with Chris Everson (Pro) and Pascal Lehmann (Swiss Re). Three other members of the team, Mark Everiss, partner and IRLA director & Congress organiser, Jon Yorke, partner, and Sam Tacey, senior associate, will also be at the Congress from Monday onwards and we look forward to meeting many of our friends and contacts there.
Court of Appeal addresses “experience of insurance or reinsurance” for the purposes of appointing an arbitrator
In Allianz Insurance PLC & Ors v Tonicstar Limited  EWCA Civ 434, the Court of Appeal decided that, under an arbitration clause requiring the appointed arbitrators to have “not less than ten years’ experience of insurance or reinsurance”, a barrister specialising in insurance and reinsurance law for over 10 years satisfied the requirement. This reversed the earlier decision of the High Court (see previous post), which had interpreted the clause in question to require experience working in the industry itself, which did not include experience in working as a professional adviser to the industry or experience of insurance or reinsurance law.
The Court of Appeal noted that it is because the practical and legal aspects of insurance and reinsurance are so intertwined that both market professionals and lawyers who have specialised in the field for many years are commonly appointed as arbitrators in insurance and reinsurance disputes. If the intention was to restrict the parties’ freedom of choice by excluding a barrister or solicitor who had specialised in the field of insurance and reinsurance for more than 10 years from eligibility, a clear expression of that intention would be needed.
In Bussey v Anglia Heating ( EWCA Civ.243, 22 February 2018), the Court of Appeal looked at asbestos exposure levels sufficient to found liability for causing mesothelioma. Mr Bussey had developed mesothelioma as a result of exposure while employed by the defendant as a plumber from 1965 to 1968. The issue was whether, given the relatively low level of exposure and the state of knowledge in the late 1960s, the defendant was under a duty to take protective measures.
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.
BILA publishes Financial Markets Law Committee working group report on the Establishment of an EEA Insurer in another Member State
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.