The annual Caytons Law and Hailsham Chambers seminar for the London professional indemnity market was held at the Banking Hall in Cornhill and covered two topics of interest to Insurers.
CYBER LIABILITY: RISKS FOR PROFESSIONALS AND THEIR INSURERS
William Flenly Q.C. of Hailsham Chambers spoke about cyber liability of professionals. Beginning with a summary of relevant cyber-crime statistics, he then explained the key principles of the Data Protection Act 1998. William went on to analyse relevant obligations in contract and negligence and arising under the principle of breach of confidence. William showed that although statutory cyber liability under the Act is comparatively new, common law duties of professionals, which give rise to what is often thought of as modern cyber liabilities, have existed for a long time.
Finally there was an examination of the law regarding exclusion of cyber-liability to both clients and non-clients. The Consumer Rights Act 2015 now governs liability to consumers. Attempted exclusions still have to be worded very carefully if they are to succeed.
BROKERS’ NEGLIGENCE: WHERE ARE WE NOW?
The second part of the seminar involved Simon Howarth of Hailsham Chambers and two expert brokers, Tom McGrath of Thomas McGrath Professional Associates Ltd and Tim Phillips, Claims Advocate and Senior Vice President of Lockton Risk Solutions. The three speakers focused on the more practical lessons and implications of the most important recent reported cases concerning brokers including:
- Synergy v CGV Insurance
- Environcom v Jones
- Involnert v Aprilgrange
- Ocean Finance v Oval & Senior Wright
Simon considered how the cases indicated that the Courts have suggested that broking experts may not always be needed in professional negligence cases, if they are doing no more than giving an opinion about what they would have done in the same situation, and not giving evidence of common practice amongst brokers.
Simon also identified features of the reported cases which Tom and Tim then developed further. Both had acted as experts in some of the reported cases and were able to give a unique insight into the facts of the cases and to help explain for the audience why the cases were decided as they were.
Tom and Tim also gave examples of the type of comments made by brokers after professional indemnity claims have been made against them, such as “…I told the client what needed to be done but was never asked to explain why it needed to be done” and “…the client is very experienced…”. The two experts looked at when such comments could amount to a reasonable defence to a claim and when they might not.asked to explain why it needed to be done” and “…the client is very experienced…”. The two experts looked at when such comments could amount to a reasonable defence to a claim and when they might not.
At the end of the seminar, there were a number of interesting questions from the audience regarding both cyber liability and brokers negligence proving that both subjects are highly topical and that further developments are likely for both.
Further information regarding both the seminar and the subject of cyber liability and brokers negligence can be obtained from Caytons Law.