HFW Insurance Bulletin: May 2019

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HFW Insurance Bulletin: May 2019

In this issue: Regulation and legislation; Court cases and arbitration.

1. Regulation and legislation

• UK: Innovation in financial services – FCA sets out progress and next steps

The FCA’s Executive Director for Strategy and Competition, Christopher Woolard, recently spoke in London on the impact of FCA Innovate, the FCA project which is aimed at promoting innovation in financial services in the interests of consumers. He also set out the FCA’s next steps to ensure further progress.

• EU: Big Data Analytics – EIOPA’s findings following thematic review in July 2018

In July 2018 the European Insurance and Occupational Pensions Authority (EIOPA) undertook a thematic review into the risks and benefits of “big data analytics” in motor and health insurance. The purpose of the review was to understand the types and sources of data and the analytics tools used and to identify whether supervisory or regulatory actions were required at a time when data and security was at the forefront of regulatory development. EIOPA sought to gather evidence on the use of big data by insurance undertakings and intermediaries, whether in product development, sales/marketing, pricing/underwriting or claims management.

2. Court cases and arbitration

• England & Wales: Thoughts on Reinsurance Allocation – Equitas v MMI

The correct allocation of EL mesothelioma losses to excess of loss reinsurances has been an issue in the market since at least as far back as the 1990s. Mesothelioma differs from other asbestos diseases in that it is “indivisible”, namely injury can be caused by any material exposure rather than proportionately by reference to exposure.

• England & Wales: The Court of Appeal makes some noise in Christopher Goldscheider v ROH Covent Garden Foundation
  In a recent case of interest to entertainment venues and their insurers, the Court of Appeal considered the potential liability of employers in respect of excessive levels of noise in the workplace.
• England & Wales: Litigation Funding – Money (and ors) in the Money
  In a decision which could have a significant impact on the litigation funding and ATE insurance markets, the court in Davey v Money & Ors1 held that litigation funders could be liable for the full amount of an adverse costs order against their funded client.
• Brazil: Subrogated Insurers bound by arbitration clause in underlying contract
  A decision issued by the Brazilian Superior Court of Justice (STJ) on 15 May 2019 represents a shift in the Court’s approach as to whether a subrogated insurer is bound by an arbitration clause in the contract between the insured and a third party.

For further information please contact the authors of this bulletin