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Submitted by // K Bowers, Partner/Solicitor Advocate; P Yeung, Partner
21 June 2018

 

ILO First Conduct Rule breaches: not just anti-competitive, but illegal 

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Submitted by // K Bowers, Partner; M Withington, Partner
19 June 2018


Reimbursement of Defence Cost if Claim Not Covered by Policy

Oldham v QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm)

Introduction

In the English case of Oldham v QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm), the Court considered whether an insurer was entitled to the reimbursement of defence costs which it had funded after it was determined that the claim was not covered under the policy. The Court found in favour of the insurer and held that an insured who is unsuccessful in showing that the claim is covered under the policy must reimburse the insurer for the advanced defence costs.

Facts

The Insured, Mr. Oldham, is an accountant and insolvency practitioner. He had taken out a professional indemnity insurance policy with QBE Insurance ("QBE") which was subject to the minimum indemnity requirements of the Institute of Chartered Accountants in England and Wales ("ICAEW"). Mr. Oldham was sued by the liquidators of a company for which he had acted as a joint administrator.

QBE declined cover on the claim on the ground of late notification, and Mr. Oldham disputed this. This dispute was referred to arbitration pursuant to the terms of the policy. Pending the coverage dispute between Mr. Oldham and QBE, QBE accepted that it had to fund the defence costs by virtue of Clause 10.2 of the policy, which provides that if there is a coverage dispute between the insured and the insurer, the insurer will advance defence costs "pending resolution" of such dispute. QBE advanced over £40,000 in defence costs.

In the arbitration, the arbitrator found in favour of QBE, and determined that Mr. Oldham’s claim was not covered under the policy and that QBE should be entitled to the reimbursement of the defence costs. He also ordered Mr. Oldham to pay the costs of the arbitration, which were significant.

The Court took as a starting point the fact that the insurer is only liable for defence costs if there is coverage under the policy. It held that Mr. Oldham's arguments would alter the meaning of Clause 10.2, such that defence costs would be covered for ineligible claims provided they were incurred prior to the resolution of the coverage dispute. This would be an "unbusiness-like consequence". The Court similarly rejected the argument that the lack of an express claw-back provision prevented QBE from claiming reimbursement. It held that it was clear that the payment of defence costs was provisional and subject to reimbursement. If there is no coverage, then the defence costs do not fall within the scope of what is indemnified, and have to be repaid.

Mr. Oldham was successful in one respect, which was that the arbitrator's decision to award the costs of the arbitration against him was remitted back to the arbitrator for reconsideration. The Court held that Mr. Oldham had not been given a fair opportunity to advance an argument that might have convinced the arbitrator to rule differently. Mr. Oldham challenged the arbitration award in the High Court on grounds that QBE did not have a right to repayment as this was not expressly provided for under the policy and that the interpretation of "pending resolution" under clause 10.2 should mean "until resolution".

Decision

The High Court held that QBE was entitled to the reimbursement of the defence costs. It was necessary for the Court to consider the minimum indemnity requirement, which took precedence over the policy terms. The Court also observed that where wording is drafted by a regulator setting minimum terms (as is often the case with mandatory professional insurance), there will be a balance between protecting the public versus the cost and availability of cover.

Comment

This decision confirms that, even in the absence of an express right to seek reimbursement of defence costs following a determination that the claim is not covered, an insurer will be able to be reimbursed. The case turns to some extent on the specific wording of the policy in question, but this kind of wording is not unusual in professional indemnity policies. Of course, it is preferable for insurers to include an express claw-back provision in the policy. Insurers should also consider including in their initial coverage letter a statement to the effect that defence costs are subject to coverage being confirmed, and that any defence costs paid in advance may have to be repaid.

This case also illustrates the difficulties that insureds can face when dealing with a coverage dispute whilst defending a claim. QBE's costs of the arbitration (which the arbitrator ordered Mr. Oldham to pay) were greatly in excess of the defence costs that were in issue.

 

About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; intellectual property; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.


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Publications //
Submitted by // K Bowers, Partner/Solicitor Advocate; P Yeung, Partner
31 May 2018

 

ILO With great power comes great responsibility

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News //
Submitted by // K Bowers, Partner / Solicitor Advocate
25 May 2018


The importance of exclusive control in adverse possession

Cheung Kwan Yin (張坤炎) and another v Santa Fong Co Ltd [2018] HKCU 1512

This case involves an application for possessory title over land on the basis of adverse possession.

Facts

This case concerned an application by the Plaintiffs for possessory title of Lot Nos. 482 & 520, Demarcation District 3, Tung Chung ("Lots"). The Plaintiffs claimed that they had had continuous and exclusive possession of the Lots from late 1992 to August 2015, and that during this period of exclusive possession, the Lots were used for agricultural purposes.

The Defendant had been the registered owner of the Lots since 1980. The Defendant made a counterclaim for declaratory relief of its entitlement to possession of the Lots, and an injunction preventing the Plaintiffs from entering the Lots.

Elements of adverse possession

In order to establish a case of adverse possession, the Plaintiffs needed to prove:-

1. factual possession of the Lots for a continuous period of 12 years;
2. exclusive physical control of the Lots by dealing with the land in the same way an occupying owner would be expected to; and
3. requisite intention to possess and exclude the world at large, including the owner, from the land.

It was the Plaintiffs' case that they had possession of the Lots from 1992 until 2015, during which time they used the Lots for the plantation and cultivation of lychee trees. The Plaintiffs also claimed that they had the requisite intent to possess and exclude "the world at large" despite the lack of fencing around the Lots.

Finding

The Plaintiffs claimed that although the Lots were not fenced off, certain actions had been taken to exclude other people from accessing the Lots, one of which was planting trees so that they formed a barrier around the Lots. It was the Plaintiffs' case that only they could pass through this 'tree barrier'. When the Plaintiffs were asked to explain why they were the only ones that could pass through the 'tree barrier', no proper answer could be given.

The Court found that the Plaintiffs had lied when giving evidence and could not be relied upon at all. The Plaintiffs' application was dismissed because they failed to prove the requisite intent and physical control of an exclusive nature over the Lots. The Defendant was granted declaratory relief of its entitlement to possession of the Lots, and an injunction preventing the Plaintiffs from entering or using the Lots.

In setting down the requisite intention of exclusive possession, the Court cited Gotland Enterprises Ltd v Kwok Chi Yau & Ors CACV 260 / 2015, a case which held that fish and duck rearing inside ponds without physical barriers from adjoining land did not amount to exclusive possession and unequivocal intent to exclude the world. The Court of Appeal also made the observation that the growing of fruits on a piece of open land does not automatically support the assertion of exclusive occupation of the land. In the absence of physical barriers (fencing) set up to exclude others from entering the land, the Court will examine the steps taken by the person claiming exclusive occupation to exclude others from the land.

When considering a claim for adverse possession, it is important to remember that although the normal civil burden of proof (i.e. on the balance of probabilities) is still applicable, given the serious consequences of finding that the holder of the paper title no longer owns the land, the evidence of exclusive possession and intention must be compelling. The Court will not lightly assume that the paper title holder has foregone its interest in the land. 

 

About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

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