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The recent case of J Rothschild Assurance [JRA] v Collyear could have serious repercussions for insurers, particularly those underwriting the civil liabilities of life assurance companies.
JRA is a well-known provider of pensions and life assurance products which started business in 1992.
In late 1993, the Life Assurance Unit Trust Regulatory Organisation (Lautro) wrote to all its members reporting that it had found widespread non-compliance in the industry with business rules relating to pension transfers and opt-outs.
Firms were obliged to review all such business to ensure proper advice had been given and, where appropriate, make redress to individual investors.
JRA gave prompt notice to its E&O underwriters that the Lautro letter constituted circumstances that "may give rise to a claim" in respect of all pension transfers and opt-outs which they had dealt with. JRA then participated in the industry-wide 'Pensions Review' and, where appropriate, made redress to investors.
But the underwriters rejected the notification as premature and denied liability, maintaining that no claims were valid in circumstances where the industry was obliged to review its own conduct and make redress.
Mr Justice Rix of the Commercial Court held that:
JRA's notice covered all claims arising out of pension transfers and opt-outs;
an investor's participation in the Pensions Review or acceptance of redress constituted a claim to which the policy had to respond;
costs incurred in reviewing and investigating claims where redress was payable were covered by the policy.
This case demonstrates that a notification can be effective, even though the range of actual claims generated is not known at the time of the notification.
Of even greater interest is the finding that a self-regulating organisation which took steps to ensure that investors were compensated for loss, generated a claim under a claims made policy. Although the decision is currently limited to the pensions industry, it is not hard to see it being applied to any similar industry scheme that ensures its members comply with best practice.