Rathbone Brothers Plc v Novae Corporate: underwriting judgment of Mr Justice Burton

By Dominic Kendrick QC and Peter MacDonald Eggers QC

The court determined a number of issues about the nature and effect of a policy of professional liability insurance. The policy was issued by London underwriters in favour of Rathbone Brothers Public Limited Company (Rathbones), their subsidiaries and ‘insured persons’, who were defined by the policy to include employees of an insured company employed in the performance of ‘professional services’. Professional services were defined to mean the declared financial services ‘performed by or on behalf of an insured company pursuant to an agreement with a third party… for compensation’.

The policy also included a provision that ‘Insurance provided by this policy applies excess over insurance and indemnification available from any other source’ (the Excess clause) and that ‘The insurer shall be subrogated to all insureds’ rights of recovery, contribution and indemnity before or after any payment under this policy’ (the Subrogation clause).

The issues arose against the background of claims being brought in Jersey by the beneficiaries of the Jack Walker 1987 Settlement against a personal trustee for breach of trust. The trustee has denied the claims…

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