Fenchurch Law

Please find a link to the judgment here - Russian Aircraft Lessor Policy Claims [2025] EWHC 1430 (Comm) Introduction   On 11 June 2025, judgment was handed down following the long awaited Russian aviation “mega trial” heard in the Commercial Court between October 2024 and January 2025. The judgment is substantial for a number of reasons, not least because it runs to 230 pages, but also because the £809 million awarded is the largest amount ever awarded by the UK courts. Of particular significance to policyholders however, is Mr Justice Butcher’s detailed application of causation principles, and his commentary on “the grip of the peril” which he first considered in Stonegate Pub Company Ltd v MS Amlin Corporate Member Ltd & Ors [2022] EWHC 2548 (Comm) and which was recently affirmed in Sky UK Ltd & Anor v Riverstone Managing Agency Ltd & Ors [2023] EWHC 1207 (Comm). Background On 10 March 2022, shortly after Russia’s invasion of Ukraine, the Russian Government issued an order which banned the export of aircraft and aircraft engines, initially for a period up until 31 December 2022 (“Order 311”). As a result, an estimated £7-10 billion of aircraft were retained by Russian lessees, and coverage proceedings were brought by affected lessors across a range of jurisdictions. Last winter, six sets of those proceedings were heard together by the Commercial Court, with AerCap acting as lead claimant on behalf of DAE, Falcon, KDAC, Merx and Genesis (together, “the Lessors”). Each of the Lessors insured aircraft under policies which included two relevant sections, namely All Risks and War Risks cover. Whilst the All Risks cover insured against loss arising from property damage subject to certain exclusions, the War Risks cover protected against loss caused by war, which is typically excluded from standard All Risks cover. Within those sections, there were two principal types of cover: Contingent Cover and Possessed Cover. The Contingent Cover was designed to respond when the aircraft were not in the physical possession of the Lessors, but were instead being operated by the Russian lessees, and was triggered in circumstances where the Lessors could not recover under the operator’s own insurance policies. In contrast, the Possessed Cover was designed to respond when the aircraft were in the actual possession of the Lessors, including during the course of any repossession. Given that its War Risks cover was subject to an aggregate limit of $1.2 billion (around £892 million), AerCap’s primary claim was for All Risks cover for the full value of the aircraft at $3.5 billion (around £2.57 billion). We set out the various points considered by the Court, and the key takeaways for policyholders, below. Insurers’ position  Both All Risks and War Risks insurers denied liability for the Lessors’ claims on the basis that (inter alia): the Lessors had not been permanently deprived of the aircraft; in any event, both Political and Government Perils were excluded under the All Risks cover; the loss was not covered under the War Risks cover; and the effect of US and EU sanctions was that insurers were prohibited from paying the Lessors’ claims. Contingent Cover or Possessed Cover?  AerCap advanced that it was the Contingent Cover which responded to the claim, given that the assets were stranded in Russia and were not therefore in the care, custody or control of the Lessors. It was a requirement of the Contingent Cover that the Lessors were “not indemnified” under the lessee’s own insurance policy. The relevant leases obliged the lessees to take out their own insurance for the aircraft during the period of the lease, with the Lessors added as an additional insured. Those policies were referred to by the Court as the Operator Policies. It was an important factor that Lessors had also sought an indemnity under the Operator Policies, which is listed for trial in the Commercial Court in October 2026. Despite each of the other Lessors seeking cover under the Possessed Cover, Mr Justice Butcher agreed with AerCap and held that each of the Lessors were entitled to claim under the Contingent Cover, given that the various requirements of the Contingent Cover were, prima facie, met. Whilst the insurers argued that the Contingent Cover only responded in circumstances where the Lessors were “not indemnified” under the Operator Policies, and there was in fact chance, pending the trial listed for October 2026, that they would be, the Court held that “not indemnified” actually meant “had not been paid”. On that basis, the Lessors’ outstanding claims under the Operator Policies were no bar to cover, as they had not been paid in respect of them. In reaching that view, Mr Justice Butcher adopted guidance from the Australian case of LCA Marrickville Pty Limited v Swiss Re International SE [2022] FCAFC 17, which held that:  “The ease with which an insured may establish matters relevant to its claim for indemnity may influence questions of construction … a construction which advances the purpose of the cover is to be preferred to one that hinders it as a factor in construing the policies.” In that vein, the Possessed Cover was not engaged because it was triggered where the aircraft were in the possession of, or alternatively were “in the course of repossession” by the Lessors. The Court held that the latter required an overt act to physically repossess the aircraft, rather than simply an intention or a plan to do so. Therefore, as the Lessors had not taken steps to repossess the aircraft, the Possessed Cover could not be engaged. Could the Lessors demonstrate permanent deprivation of the aircraft and, if so, when? The relevant insuring clauses were triggered by “physical loss or damage” sustained to the aircraft during the period of insurance. Each of the Lessors advanced a similar argument, which was that it was sufficient for them to show, on the balance of probabilities, that recovery of the aircraft was a “mere chance”. In contrast, War Risks insurers argued that the appropriate test was whether there was no realistic prospect of recovery at any time within the commercial lifetime of the aircraft, a bar which they said had not been met. All Risks insurers accepted that there had been a loss of the aircraft, but argued that the loss was the result of a War Risks peril. In holding that each of the Lessors had suffered permanent loss of possession of the aircraft upon the implementation of Order 331 on 10 March 2022, the Court held that the Lessors only needed to establish that deprivation of possession was, on the balance of probabilities, permanent which, in line with the judgment of the Supreme Court of New South Wales in Mobis Parts Australia Pty Ltd v XL Insurance Co SE [2019] Lloyd’s Law Rep IR 162, could be interpreted as being “more probable than not”. That case, whilst not binding in the UK, considered the notion of permanence and held that it should be assessed against the standard of “more probably than not”. What was the proximate cause of the loss? Having established a loss, the central issue was whether that loss was covered under the All Risks or the War Risks cover. In relation to the All Risks cover, the Court had to consider whether the claims fell within either of two excluded perils, being: a Political Peril, defined as “any act of one or more persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional”; or a Government Peril, defined as “confiscation, nationalisation, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any Government”. If the claims did fall within either of those perils, the War Risks cover would be engaged. Despite War Risks insurers attempts to argue a restrictive interpretation of the exclusions, Mr Justice Butcher found that the action taken by the Russian government on 10 March 2022 (Order 311) amounted to a “restraint” or “detention” that fell squarely within the definition of a Government Peril. As a result, the claims were excluded by the All Risks cover and fell at the feet of the War Risks insurers. Causation – Wayne Tank & Pump Cp. Ltd v Employers Liability      Incorporation Ltd Central to the arguments on causation was the analysis as to whether the Wayne Tank principle applied to independent concurrent causes (i.e. two causes both of which are sufficient to cause the loss on their own), or if Wayne Tank applied only to interdependent concurrent causes (i.e. where two causes, neither of which is sufficient on their own, act together to cause the loss). In broad terms, the Wayne Tank principle dictates that, where there are two proximate causes of a loss, and one is covered and the other excluded, the exclusion will prevail, and the insurer will not be liable for the loss. In seeking to limit the potential application of the Government Peril and Political Peril exclusions if it was found that the loss was also caused by a peril within the All Risks cover, War Risks insurers argued that the Wayne Tank principle did not apply to independent concurrent causes. In essence, the War Risks insurers were seeking to argue that, in addition to Order 311, the lessees of the planes had independently decided that it was in their interest to retain the aircraft and engines, which was a proximate cause which would be covered under the All Risks cover, and was completely independent from Order 311 such that the Wayne Tank principle did not apply. Ultimately, Mr Justice Butcher found that Order 311 was the sole proximate cause. However, in obiter, he commented that, even if there was an independent concurrent cause that fell within the scope of the All Risks cover (such as the lessees deciding themselves to retain the aircraft), the Wayne Tank principle would apply and the fact that Order 311 triggered the Government Peril exclusion would exclude cover in any event. This part of the judgment is notable for policyholders as, while it is settled law that the Wayne Tank principle applies to interdependent concurrent causes (causes which act together to cause the loss), Mr Justice Butcher has now indicated, albeit in obiter, that the same principle applies to independent concurrent causes (causes which would have been sufficient to cause the loss on their own). As a result, each of the Lessors’ claims were found to be excluded under the All Risks cover and it was held that the claims fell at the door of the War Risks insurers. Unfortunately, in Aercap’s case, this meant that it was entitled to the lower limit of indemnity of $1.2 billion. Do sanctions prevent payment to lessors? Each of the policies contained an endorsement providing that insurers would not be liable where “providing coverage to the Insured is or would be unlawful because it breaches an embargo or sanction". On that basis, insurers argued that they were prohibited from making payment under the War Risks section on account of sanctions introduced by the EU and US. The Court considered the relevant sanctions and rejected insurers’ arguments on this point on the basis of the specific wordings. The grip of the peril – Stonegate v MS Amlin and Sky v Riverstone applied Finally, in light of Mr Justice Butcher’s finding that the loss occurred on 10 March 2022, a separate issue arose in relation to the claims advanced by the Lessors whose War Risks policies contained provisions to review the geographical limits of the policies, pursuant to which insurers had terminated cover in Russia prior to 10 March 2022. DAE, Falcon, Merx and Genesis advanced the “death blow” or “grip of the peril” concepts considered by Mr Justice Butcher in Stonegate v MS Amlin and again by the Court of Appeal in Sky v Riverstone. The lessors argued that the loss flowed from a peril that was operative within the policy period, and so, notwithstanding that the total loss occurred outside of it, they were entitled to cover. In considering the authorities, Mr Justice Butcher clarified that:  “if an insured is, within the policy period, deprived of possession of the relevant property by the operation of a peril insured against and, in circumstances which the insured cannot reasonably prevent, that deprivation of possession develops after the end of the policy period into a permanent deprivation by way of a sequence of events following in the ordinary course from the peril insured against which has operated during the policy period, then the insured is entitled to an indemnity under the policy.” Concluding that there were indeed restraints and detentions that took place prior to the implementation of Order 311, and that the loss of the aircraft on 10 March 2022 arose in a sequence of events that followed in the ordinary course of those restraints and detentions, it was held that the aircraft were in the grip of the peril by the time the relevant policies were terminated, and the relevant Lessors were therefore entitled to cover. In other words, whilst the aircraft were lost on 10 March 2022, they were in “the grip of the peril” from 5 March 2022 onwards. In making this decision, the Court made several important findings, including: relying on the explanation of the doctrine by the Court of Appeal in Sky v Riverstone, that a policy covering “loss occurring during” does not overcome the application of the “grip of the peril” principle; there is no difference between (i) a loss where physical damage during the period of insurance later develops into a total loss after expiry and (ii) a loss where a deprivation during the period later becomes permanent after expiry, as a matter of construction; and the “grip of the peril” principle naturally applies to deprivation of possession scenarios. Key takeaways for policyholders During a time of increased geopolitical tension, this decision is an important one given its key findings of fact and analysis of legal principles, which are likely to be applicable to all manner of coverage disputes arising out of Russia’s invasion of the Ukraine. In particular, Mr Justice Butcher’s consideration of loss by way of deprivation in non-marine insurance policies is likely to be relevant to a range of insurance policies and policyholders that have been affected by the fallout from the Ukraine conflict and other ongoing geopolitical events. Mr Justice Butcher’s consideration of the Wayne Tank principle is also of particular importance to policyholders given the apparent expansion of its previously accepted application to interdependent concurrent causes. It now seems that the principle will also apply to causes which are both sufficient to cause the loss on their own, but which act in parallel.

 A panoply of coverage disputes reached the English courts in 2024 across diverse industry sectors, highlighting the London market’s sophisticated role in managing risk and boosting commercial resilience through geopolitically turbulent times. Several judgments from the Court of Appeal reflect the trend for literal policy interpretation and a reluctance to interfere with unambiguous wording, including in marine cargo, offshore construction and W&I claims. The first reported decision on section 11 of the Insurance Act 2015 (‘IA 2015’) provides insight on the requisite causal connection. And guidance was provided on the scope of recovery for loss sustained over extended periods of time, in relation to construction projects and Covid BI losses. The Invasion of Ukraine in February 2022 has led to a deluge of claims in the Commercial Court for losses arising from aircraft stranded in Russia, and damage to or expropriation of strategic assets including energy, mining and manufacturing interests. Several aircraft leasing companies are pursuing claims under contingent & possessed policies, case managed alongside parallel proceedings against various reinsurers, with related trials taking place in Ireland and the US.  Collectively these cases demonstrate the importance of precise language throughout insurance policies, with particular attention on key provisions around the description of insured parties, triggers for non-damage perils, aggregation, dispute resolution and any opt-out from statutory protections. Recent claims experience helps to inform best practice on pitfalls to avoid for policyholders and brokers, to secure coverage as broad as market conditions might realistically allow and minimise the prospect of disputes. BUSINESS INTERRUPTION Various Eateries v Allianz [2024] EWCA Civ 10  The latest decision on coverage under the Marsh Resilience wording considered various issues concerning the scope of prevention of access clauses, and aggregation of loss. Following settlement of related cases in Stonegate and Greggs, important questions on the treatment of furlough payments and additional increased costs of working were not included in continuing points of appeal and these matters are due to be revisited by the Court of Appeal in January 2025. The remaining grounds of appeal from the first instance decision in Various Eateries were dismissed. The position remains that policyholders are entitled to claim for multiple sub-limits by reference to particular government actions, such as the nationwide lockdowns and regulations imposing restrictions on operation of different industry sectors; and those with ‘composite’ policies i.e. a number of separate contracts recorded in a single document, can recover individual sub-limits per company or per premises, depending on the insuring clauses and aggregation wording. Gatwick Investment v Liberty [2024] EWHC 124 (Comm)  This case considered a number of preliminary issues in relation to coverage under prevention of access (‘POA’) or non-damage denial of access (‘NDDA’) clauses for policyholders operating in leisure, hospitality and retail industries. The Commercial Court  held that: (i) the Supreme Cout ruling on concurrent causation applies to POA / NDDA clauses in the same way as disease clauses, (ii) government action was that of a ‘statutory authority’, (iii) there was cover in respect of regulations imposed in response to a nationwide pandemic, (iv) furlough payments fell to be deducted from any sums otherwise due to policyholders, and (v) policy limits apply separately to multiple insured entities under a composite policy. Bellini v Brit UW [2024] EWCA Civ 435   The claimant sought indemnity for Covid losses under a policy extension providing cover for: “interruption of or interference with the business caused by damage … arising from … any human infectious or human contagious disease … manifested by any person whilst in the premises or within a 25 mile radius …” The Court of Appeal upheld the first instance decision, that there was no cover under this extension in the absence of physical damage. The claimant’s argument that something had gone wrong with the language, so that it was necessary to correct the error through contractual construction (applying Chartbrook v Persimmon Homes [2009]) was rejected. ‘Clumsy drafting’ resulting in limited cover did not mean that the provision was absurd, nor justify rewriting the contract. Where the parties have used unambiguous language, the courts must apply it, following the Supreme Court decision in Rainy Sky [2011].  London International Exhibition Centre v Allianz [2024] EWCA Civ 1026 The Court of Appeal considered coverage under insuring clauses triggered by disease ‘at the premises’ and held that the Supreme Court’s approach to causation applied to radius clauses in the FCA Test Case [2021] was equally applicable. The nature of the insured peril informs the causation test agreed between the parties and it must have been contemplated that an outbreak of disease could spread rapidly and widely. The appropriate causation test did not involve a ‘but for’ analysis and each individual case of illness resulting from Covid may constitute a separate and equally effective cause. Unfortunately, the judgment did not discuss in any detail the evidential requirements for policyholders to prove the presence of Covid at their premises and this remains contentious, given the limited availability of testing services in the early stages of the pandemic.    UnipolSai Assicurazioni v Covea Insurance [2024] EWCA Civ 1110  Covea provided cover for many children’s nurseries forced to close between March and July 2020. The Court of Appeal upheld the first instance decision that Covea, having paid out substantial sums in respect of BI losses, were entitled to indemnity under property catastrophe excess of loss policies with reinsurers. The pandemic did constitute a ‘catastrophe’ giving rise to the insured losses, and there was no requirement in the policy for ‘suddenness’ or occurrence of a time-limited ‘event’. On the issue of aggregation, pursuant to the Hours Clause in the reinsurance policy, the Court affirmed that, when the covered peril is the loss of an ability to use the premises, the individual loss occurs at the same time, regardless of how long the financial loss continues. Provided the individual loss occurs within the indemnity period, the totality of that loss is covered and all of its financial consequences (consistent with the approach taken by Mr Justice Butcher in Stonegate and Various Eateries). An apportionment of financial loss would be impractical and was deemed to be incorrect. International Entertainment Holdings v Allianz [2024] EWCA Civ 1281  The Court of Appeal decided that restrictions brought in by the UK government, preventing or hindering access to the claimants’ theatres around the country, were not actions of a ‘policing authority’ and there was no indemnity available under policies imposing this requirement within the insuring clauses. Further, it was held that Covid can qualify as an ‘incident’ and coverage may be available on a per premises basis, in the absence of clear wording to the contrary. CONSTRUCTION ALL RISKS Technip Saudi Arabia v MedGulf Insurance [2024] EWCA Civ 481  Technip was the principal contractor for an energy project in the Persian Gulf. A vessel chartered by Technip collided with a platform within the project site, leading to a damages settlement of $25 million agreed with the platform owner, KJO. Technip claimed under the liability section of its offshore construction policy, written on the WELCAR wording, which named both Technip and KJO as ‘Principal Insureds’ (the words Insured and Assured were used interchangeably in the policy). The insurer refused indemnity on grounds that the Existing Property Endorsement excluded cover for damage to existing property owned by any of the ‘Principal Assureds’, including the platform owner KJO, and this was upheld by the High Court. Technip appealed, arguing that the policy was composite, and the exclusion only applied to property owned by the particular insured claiming the indemnity. The Court of Appeal refused, based on the natural meaning of the wording and how this would be understood by a reasonable person. Each insured under the policy was deemed to have separate insurance cover, but the term ‘Principal Assureds’ had the same meaning in each case. Sky UK & Mace v Riverstone [2024] EWCA Civ 1567 The timber roof of Sky’s headquarters in West London suffered extensive water ingress, due to a design defect in failing to incorporate temporary waterproofing during installation. The building was constructed by Mace as main contractor and insured under a CAR policy. The damage occurred prior to practical completion in April 2016, but continued to develop thereafter, including subsequent to expiry of the period of insurance in July 2017.      The Court of Appeal affirmed that ‘damage’ means an adverse change which impairs the relevant property’s use or value. The roof was damaged as soon as it suffered water ingress. Insurers were held liable to indemnify both Sky and Mace for all damage that occurred during the period of insurance but deteriorated or developed thereafter, overturning the trial judge’s decision that the claimants were only entitled to recover for the cost of repairing damage in existence at the end of the insured period. Investigation costs reasonably incurred to determine how to remediate damage were also covered, whether or not damage was revealed. The roof was made up of 472 modular ‘cassettes’ covering an area of 16,000 square metres. The policy deductible of £150,000 applied per any one event and the Court of Appeal held that the relevant event was the decision to build to a design that did not include temporary waterproofing, so that only one deductible applied. Mace had pleaded and proved damage at practical completion and was entitled to a monetary judgment in addition to and distinct from Sky. Matters have been remitted to the trial judge, for determination of the sums due to each claimant under the policy. INSURANCE ACT 2015 Scotbeef v D&S Storage [2024] EWHC 341 (TCC) Scotbeef pursued a claim against D&S Storage in relation to the supply of defective meat. After D&S Storage became insolvent, its liability insurer was added to the proceedings pursuant to the Third Parties (Rights against Insurers) Act 2010 (‘TPRIA 2010’). The insurance policy contained a ‘Duty of Assured’ clause, described as a condition precedent to liability, requiring Scotbeef to take reasonable steps to ensure that the Food Storage & Distribution Federation’s standard terms were incorporated into commercial contracts. The terms were not incorporated to the agreement with D&S Storage, and the insurer applied to strike out the insurance claim, based on Scotbeef’s non-compliance with the policy term. The High Court considered: (a) whether the construction of a condition precedent affects its enforceability; and (b) when terms which depart from the IA 2015 are enforceable. On the first issue, it was held that construction of the entire clause must be evaluated in the context of the whole policy, to determine whether the provision would operate as a condition precedent, regardless of any label applied. In this case, the disputed term included a write-back for cover, where the policyholder acted reasonably in seeking to incorporate the standard terms, and the consequences of breach were detailed in a later section of the policy. This meant the provisions were difficult to reconcile and ambiguous in effect, so that the purported condition precedent was unenforceable. On the second issue the Court held that, while it is possible to depart from the IA 2015, any such terms must be clearly brought to the policyholder’s attention prior to inception of the policy. The insurer had not done so and therefore could not rely on the purported opt-out term to deny indemnity.   Delos Shipholding v Allianz (“the WIN WIN”) [2024] EWHC 719 (Comm) The claim arose from the ‘illegal parking’ of a bulk carrier just inside Indonesian territorial waters off Singapore. This minor infraction led to the vessel being detained by the Indonesian authorities for over a year, while the Master was prosecuted under local shipping laws. The claimants claimed under a war risks policy, which provided that the vessel became a constructive total loss after 6 months’ detainment. The Insurers denied liability on grounds that (i) the loss was not fortuitous, as resulting from voluntary conduct to anchor in that location, (ii) an exclusion applied, for arrest restraint or detainment ‘under customs or quarantine regulations’, and/or (iii) the claimants had breached the duty of fair presentation, by failing to disclose that the sole director of the registered owner of the vessel was the subject of criminal charges in Greece. The Commercial Court held that the exclusion did not apply, and the loss was fortuitous, since the crew did not realise the vessel had strayed into Indonesian territory or consciously chosen to do so. On alleged material non-disclosure, the Court held that the claimants did not have actual or constructive knowledge of the criminal charges, because the director was not ‘senior management’ for the purposes of section 4(3) of the IA 2015, instead being merely a nominee director with no decision-making powers. In any event, the defendants were held not to have been induced by the alleged non-disclosure. The claimants’ separate claim for damages for late payment, pursuant to section 13A IA 2015 was dismissed. Based on the expert evidence, the Court was not satisfied that another similar vessel would have been available for the claimants to purchase, as alleged, and the claim for loss of trading profit, as a result of late payment of the insurance claim, was not made out. MOK Petro Energy v Argo [2024] EWHC 1935 (Comm) A cargo of gasoline loaded onto a tanker in Oman was insured under an all risks marine open cover on the ICC (A) wording. The gasoline was blended with methanol and the sale contract between MOK (the buyer) and PetroChina (the seller) required the cargo to have a phase separation temperature (‘PST’) below a stated level. On arrival at the discharge port, the cargo was found to significantly exceed the agreed limit. This meant that the octane rating was negatively affected, although the blend did not actually undergo phase separation, and the cargo was rejected by the end purchaser. Insurers declined indemnity, on grounds that (a) no damage had occurred, and (b) a warranty in the policy, requiring inspection and certification of the cargo at the load port, had not been complied with. The cargo had been inspected, but there was no contemporaneous evidence of certification. MOK sought to rely on section 11, IA 2015, which provides that insurers cannot rely on breach of terms (such as warranties or conditions precedent) intended to reduce the risk of loss, if the insured can show that the breach “could not have increased the risk of the loss which actually occurred in the circumstances in which it occurred”. MOK argued that its failure to comply with the certification element was irrelevant and would not have reduced the risk, since inspection of the cargo had taken place. The Commercial Court held that no damage, i.e. adverse physical change, had occurred simply by mixing the blend in proportions which resulted in a defective product with propensity for a higher PST than contractually stipulated, applying Bacardi v Thomas Hardy [2002]. The comments on breach of warranty were therefore ‘obiter’, i.e. unnecessary to the decision and not binding in subsequent cases. The Judge agreed with the insurer that section 11 “is directed at the effect of compliance with the entire term and not with the consequences of the specific breach”. It was not disputed that compliance with the warranty as a whole was capable of minimising the risk of water contamination, so that the breach of warranty was made out. This is the first judicial guidance on the operation of section 11, since the enactment of the IA 2015. There has been much debate as to whether this provision introduced a strict causation test, allowing policyholders to argue that the specific breach would have made no difference in the particular circumstances, even if compliance with the term would generally decrease the risk of that type of loss occurring. The decision in this case suggests a more onerous test for policyholders, and it will be interesting to see how the arguments are developed in subsequent cases. JURISDICTION Zephyrus Capital Aviation v Fidelis Underwriting [2024] EWHC 734 (Comm) The defendant reinsurers applied to stay claims against them based on exclusive jurisdiction clauses (‘EJC’s) in favour of the Russian courts. The Commercial Court held that it was unlikely the claimants would receive a fair trial in Russia, in circumstances where the Russian state had a direct interest in the outcome of the litigation, and several claimants are from the UK and EU, which Russia had designated as ‘Unfriendly Foreign States’. The Court had regard to the multiplicity of proceedings and the risk of inconsistent judgments, as additional factors supporting its decision. This is a rare example of the English courts deciding that there are strong reasons not to apply an EJC. AerCap Ireland v PJSC Insurance [2024] EWHC 1365 (Comm) By contrast, the defendant reinsurers in this case were successful in obtaining a stay of English court proceedings on grounds that the policies, containing all risks and war risk coverage, included an EJC in favour of the Ukrainian courts. The Commercial Court held that the jurisdiction clauses were binding and enforceable, and the ongoing conflict was unlikely to result in substantial delays or other issues in litigating these claims in Ukraine. ‘PAY FIRST’ CLAUSES MS Amlin v King Trader (“the Solomon Trader”) [2024] EWHC 1813 (Comm) The policyholder chartered a ship, which became grounded in the Solomon Islands. The owner of the vessel, King Trader, obtained an arbitration award against the charterer in excess of $47 million. The charterer entered insolvent liquidation and King Trader sought to recover the loss from the charterer’s insurers, under the TPRIA 2010. The charterer’s liability insurance contained a clause stating: “it is a condition precedent to the Assured’s right of recovery … that the Assured shall first have discharged any loss, expense or liability.” The insurers were successful in obtaining a declaration that they were not liable to indemnify the claim, because the insolvent charterer had not discharged the underlying liability. The High Court held that the ‘pay first’ clause was not repugnant to the purpose of the insurance or inconsistent with the other policy terms (including the right to terminate on insolvency, while preserving the insured’s right to indemnity for prior incidents). The clause was clearly worded and prominently stated, not a “fox in the henhouse … hidden away in the thickets of the Policy”. The decision is a salutary reminder for policyholders to be wary of similar provisions. The Judge acknowledged that: “The state of English law on this issue in the light of the 2010 Act is not particularly satisfactory… Prudent operators seek to insure against those liabilities, and a range of third parties who suffer loss and damage as a result of accidents at sea will look to insurances of this kind to be made whole. ‘Pay first’ clauses reduce the efficacy of that protection when it is most needed”. POLITICAL VIOLENCE Hamilton Corporate Member v Afghan Global [2024] EWHC 1426 (Comm) Following seizure of a US military warehouse by the Taliban, the owners sought to claim under a political violence reinsurance policy. The insurers declined cover in reliance on an exclusion for loss: “directly or indirectly caused by seizure, confiscation, nationalisation … expropriation, detention … nor loss or damage to the Buildings and/or Contents by law, order, decree or regulation of any governing authority, nor for loss or damage arising from acts of contraband or illegal transportation or illegal trade.” The Commercial Court held that ‘seizure’ in this context was not restricted to seizure by law, order, decree or regulation of any governing authority, and the cover was limited to physical damage or destruction – not loss by way of deprivation. It was noted that ‘seizure’ has a settled legal meaning, namely “the act of taking forcible possession either by a lawful authority or by overpowering force”, following Kuwait Airways [1999]. The Judge rejected the claimant’s submission that the clause should be construed in light of factual matrix evidence addressing the market’s understanding of the differences between political risks and political violence insurance, and the history of similar clauses. PROFESSIONAL INDEMNITY Axis Specialty Europe v Discovery Land [2024] EWCA Civ 7 Discovery Land became interested in acquiring and developing Taymouth Castle in the Scottish Highlands. The solicitor instructed by Discovery Land on the purchase fraudulently misappropriated surplus client funds and then, nine months later, secretly mortgaged the castle to a third party. The fraudulent solicitor was senior partner in a two-partner firm, which became insolvent, and Discovery Land pursued a claim against the firm’s PI insurers pursuant to the TPRIA 2010. A dispute arose as to whether the second partner in the firm had ‘condoned’ the dishonest acts of the fraudster, which would have engaged the following exclusion under the SRA Minimum Terms: “The insurer shall have no liability for … any claims … involving dishonest or fraudulent acts … committed or condoned by the insured, provided that: (a) the policy shall nonetheless cover the civil liability of any innocent insured; and (b) no dishonest or fraudulent act … shall be imputed to a body corporate unless it was committed or condoned by all directors of the company … or [LLP] members”. The trial judge held that, while the second partner’s standards fell well below those required in the profession, he was not aware of and had not approved the fraud, or other acts in the same pattern of dishonest behaviour leading to the claim and nor was there any ‘blind-eye knowledge’ on his part. Further, the Court rejected insurers’ argument that the claims relating to (i) surplus funds and (ii) the secret mortgage should be aggregated, for purposes of the limit of indemnity. The Court of Appeal upheld the first Instance decision as entirely rational. The aggregation clause in the policy provided that: “similar acts or omissions in a series of related matters or transactions will be regarded as one claim”. Applying the Supreme Court decision in AIG v Woodman [2017], it was necessary to consider whether the degree of similarity was real or substantial, and whether the claims fitted together, based on a thorough analysis of the underlying facts. Here, the trial judge had reviewed the evidence ‘painstakingly’, and while the two claims involved the same property and affiliated company victims, this was insufficient to provide the necessary link between the two transactions. SUBROGATION Dassault Aviation v Mitsui Sumitomo [2024] EWCA Civ 5 Dassault supplied aircraft to Mitsui Bussan Aerospace (‘MBA’) pursuant to a contract governed by English law including a non-assignment provision, as follows: “… this Contract shall not be assigned or transferred in whole or in part by any Party to any third party, for any reason whatsoever, without the prior written consent of the other Party”. Following a delay in supply of aircraft on to the Japanese coastguard, Mitsui Sumitomo Insurance (‘MSI’) indemnified MBA for a liquidated damages claim from the coastguard and then sought to recover the loss by subrogated proceedings against Dassault. It was common ground that MBA’s claims against Dassault would be transferred to MSI by Article 25 of the Japanese Insurance Act, reproduced by the insurance policy, subject to operation of the non-assignment clause. The Court of Appeal unanimously allowed the insurer’s appeal against the High Court decision, concluding that the language of the sales contract, in prohibiting an assignment ‘by any party’, did not prevent an assignment that took place by operation of law. RSA Insurance v Textainer Group [2024] EWCA Civ 547 Textainer, a global supplier of shipping containers, incurred a loss of around $95 million following the collapse of Hanjin Shipping, in respect of thousands of missing and damaged containers and lost rental income. Textainer secured $70 million from primary and excess layer insurers and later recovered $15 million in Hanjin’s liquidation.             The Court of Appeal reaffirmed the well-established principle that recoveries are allocated on a ‘top-down’ basis, not proportionately (applying the House of Lords decision in Lord Napier and Ettrick [1993]). Sums obtained from third parties were therefore to be applied towards uninsured losses first, then paid down from the highest to the lowest layer of cover, before reimbursing the policy deductible. This approach applies to aggregate or excess layer placements and unitary losses alike. It confirmed that the concepts of under-insurance and average have no relevance to insurance written in layers.    WARRANTY & INDEMNITY Project Angel Bidco v Axis Managing Agency [2024] EWCA Civ 446 The claimant sought indemnity under its buyer-side W&I policy for loss in value of the shares in a target company, on the basis that warranties given by the seller were alleged to be untrue. The relevant warranties stated that the company was not involved in legal proceedings or under investigation and had not committed any breach of contract or acts of bribery or corruption (‘ABC warranties’). After the transaction completed, the target company became the subject of police investigations relating to compliance with anti-corruption and bribery legislation, and lost its key client, Liverpool City Council, resulting in insolvency of the target company and the policyholder. The insurers declined cover in reliance on a policy exclusion for “any liability or actual or alleged non-compliance with … [anti-bribery or anti-corruption laws]”. The policyholder argued that there was an obvious mistake in drafting of the exclusion, as it contradicted coverage provided in a cover spreadsheet listing the ABC warranties as insured obligations.        By a 2:1 majority, the Court of Appeal upheld the Commercial Court decision, that the policyholder’s proposed correction to the exclusion clause should not be permitted. While accepting that there was an obvious contradiction, the Court held it was not clear any mistake had been made in the drafting and nor did any clear remedy exist to correct the alleged mistake. There was a plain commercial rationale for the broad effect of the exclusion, from the insurer’s perspective, and the ordinary meaning of the words applied. In a dissenting judgment, Phillips LJ preferred the policyholder’s argument and would have allowed the appeal, based on the commercial purpose and intended effect of the insurance in the overall context of the Sale & Purchase Agreement. This case illustrates the high bar for establishing a mistake in the drafting of commercial contracts, particularly a bespoke W&I policy, to justify rectification of a disputed provision. Link to article: https://fenchurchlaw.com/fenchurch-law-annual-coverage-review/ January 2025 Amy Lacey Cat Wyn Williams Pawinder Manak

 2 April 2025: Fenchurch Law, the UK’s leading firm for insurance policyholders, and New York-based Saxe Doernberger & Vita, P.C. (SDV) have announced a new partnership, uniting two leading firms focused on representing insurance policyholders in coverage disputes. This partnership will give more multinational individuals and businesses access to specialised, local representation in their coverage disputes, and expert counsel during high-value insurance policy purchase and renewal decisions. In sharing deep expertise in specific insurance concerns, both firms will be empowered to extend the range of services and areas of practice offered to their existing and future clients. This collaboration between Fenchurch Law and SDV was forged through a common mission to level the playing field between policyholders and insurers, as well as a dedication to protecting exclusively policyholder interests. Senior Partner at Fenchurch Law, David Pryce, commented: “At Fenchurch Law we couldn’t be more excited to be formally launching our best-friends relationship with leading US insurance recoveries boutique Saxe Doernberger & Vita.  Our two law firms are closely aligned in every way, from our shared purposes of levelling the playing field for policyholders across the world, to our shared approaches of working shoulder to shoulder with the insurance broker community to achieve the best outcomes for the policyholders who we represent.  “Our combined offering now provides a dedicated and market leading service to policyholders from four major insurance centres: Asia Pacific, Scandinavia, the United Kingdom, and the United States.  Today marks an important step towards our goal of having a presence in every region in the world by 2030.” SDV is a U.S.-based firm dedicated exclusively to representing policyholders in insurance coverage disputes. SDV also assists with policy purchase and renewal, representing policyholders across a wide array of areas of practice, including bad faith claims, cyber risk, Directors & Officers liability coverage, disability insurance claims, Employment Practices Liability claims, environmental insurance, insurance for international businesses, life insurance, municipal coverage, natural disaster coverage, policy review and analysis. ENDS

15 April 2024 Fenchurch Law, the UK’s leading firm working exclusively for insurance policyholders and brokers, plans to offer its specialist legal support outside of the UK for the first time, announcing plans for the opening of a new office in Singapore. Through its new hub, Fenchurch Law will be working with policyholders and brokers from across Singapore and the wider Asia-Pacific region to provide first-class support on high value, complex, commercial insurance coverage disputes, as it has done in the London Market since 2010. The firm’s international expansion follows the recent announcement that it had transitioned to an employee-owned business model through the launch of an Employee Ownership Trust (EOT), which saw 60% of its shares awarded to its people. Fenchurch Law will be the first EOT business to operate in Singapore. Managing Partner at Fenchurch Law, David Pryce, commented: “As a purpose driven organisation, we exist in order to help level the playing field between policyholders and their insurers. This is a need that exists in all insurance markets around the world, and we’re delighted to be taking the first step in furthering our purpose internationally with the opening of our Singapore office.” Link to article: https://fenchurchlaw.com/fenchurch-law-announces-singapore-expansion-plans/

14 October 2024 Fenchurch Law, the UK’s leading firm working exclusively for insurance policyholders and brokers, has announced plans to offer its specialist legal support across the Nordic region, with the launch of its new Denmark office. The new office will be run by Morten Christensen, supported by his colleague Maria Bitsch, who have a combined 50 years of experience handling complex insurance and liability disputes across Scandinavia. Morten brings with him extensive leadership expertise, having previously held the position of Co-Managing Partner, EMEA, at Kennedy’s and having also founded several independent specialist law firms.  He has also been recognised as a leading individual by the Legal 500 for insurance in Denmark for the past 6 years. Maria also brings with her a deep understanding of the insurance industry, the broker sector, and reinsurance, having held senior legal positions at three of the top Danish insurance providers, including the Alm Brand Group. This announcement coincides with the official opening of Fenchurch Law’s Singapore office and marks another major milestone in the firm’s ongoing global expansion strategy. Senior Partner at Fenchurch Law, David Pryce, commented: “Today’s opening of our Singapore office, to serve policyholders across the APAC region, and the opening on 1st November of our Copenhagen office, to serve policyholders across the Nordic region, are key milestones towards achieving the firm’s purpose to level the playing field for policyholders globally.  These office openings put us ahead of schedule to achieve our objective of having a presence in every region of the world by 2030.” Morten Christensen, Managing Partner at Fenchurch Law DK, added: “We’re delighted to be joining Fenchurch Law to establish its presence in Scandinavia, and to be playing a key part in the firm’s growth around the world. In my experience, I have often found that clients would have been better off with a representative who not only understands the law and the insurance industry but also exclusively stands on their side, which is exactly the type of support we will be offering them.” Link to article: https://fenchurchlaw.com/fenchurch-law-expands-into-scandinavia-with-denmark-office-launch/

Introduction Thousands of buildings in the UK with defects identified following the Grenfell tragedy are yet to be remediated, giving rise to myriad complex legal claims. The Building Safety Act 2022 (BSA) introduced sweeping changes to industry regulation, and the remedies available to compel rectification works by responsible parties. While uncertainty remains over many aspects of the new regime, a growing body of case law provides helpful guidance on key principles. DPA Claims The Defective Premises Act 1972 (DPA) requires building work in respect of residential property to be carried out in a professional or workmanlike manner, using proper materials, so that the property is fit for habitation when completed, i.e. capable of occupation for a reasonable time without risk to the health or safety of occupants, and undue inconvenience or discomfort. The DPA had been rarely used, prior to the BSA, as parties would typically rely instead on causes of action in contract or tort. All that changed with the BSA introduction of a lengthy retrospective increase to the limitation period for actions under the DPA: 30 years for claims arising from works completed before June 2022. This, combined with the DPA cutting through lines of contractual privity, means it has real teeth for property owners affected by building safety defects. In URS v BDW [2025], the Supreme Court has recently affirmed the Court of Appeal decision that developers and other construction parties may be owed duties under the DPA, in addition to ultimate purchasers or occupiers, even if the building was sold at full market value prior to discovery of the defects. URS’ arguments that rectification costs were voluntarily incurred by BDW were dismissed, given the risks of personal injury and reputational damage, regardless of potential limitation defences that could have been raised against notional claimants. Further details here. In BDW v Ardmore [2024] the Technology & Construction Court (TCC) upheld an application to enforce an adjudication award requiring a Design & Build contractor to pay £14million for breach of the building contract and DPA duties, arising from fire safety defects at a high-rise development in Hampshire. Historical claims give rise to significant evidential challenges. Ardmore argued that pursuit of adjudication on a 20-year old project was inherently unfair, but this was rejected by the Court, in view of disclosure provided by BDW. While the BSA provides that claims under new limitation periods should be dismissed where continuation would breach a defendant’s right to a fair trial (under Article 6 ECHR), this seems to require proof of further infringement than the mere passage of time. The decision to allow adjudication of DPA claims is controversial - given the complex issues and sums at stake; varying levels of experience among accredited adjudicators; and expedited timescales applicable in this form of dispute resolution process, with determination typically 4-6 weeks from service of the referral notice. Permission to appeal has been granted. In Wilson & others v HB (SWA) & Laing O’Rourke [2025], the TCC confirmed that damages for DPA claims are primarily the costs of remediating defects, so that the property is fit for habitation, while other heads of  loss, such as rental income, may also be recoverable. This is important for developers and owners, who may miss out on rental income while a property is being remediated or is otherwise empty. Subject to proof, these losses can be claimed under the DPA. Remediation Orders The BSA provides for Remediation Orders (ROs) and Remediation Contribution Orders (RCOs) as a means of requiring landlords, developers or associated persons to remediate defects. Orders may be issued by the First-Tier Tribunal (FTT) upon application by the Regulator, local authorities, or other interested parties. ‘Associated’ is broadly defined, including parent companies, subsidiaries, sister companies, and companies that share or have shared a director in the 5 years to February 2022. In Grey GR v Edgewater & others [2025], the FTT granted an application by the landlord of Vista Tower, a 16-storey building in Stevenage converted to flats in 2015, for a RCO against the developer and 75 associated companies, requiring them to contribute £13 million towards remediation of fire safety defects. Grey GR acquired the freehold in 2018. By 2020, combustible cladding panels had been identified, and inadequate fire stopping measures. A waking watch was implemented and some remediation work began, but progress was slow, and the government obtained a RCO against the landlord in May 2024. Grey GR then pursued its own RCO application against Edgewater and 95 parties alleged to be associated with it. The Tribunal agreed that the developer was a key target, “at the top of the hierarchy of liability (or waterfall)”. The power to make RCOs against related bodies was acknowledged as a radical departure from usual company law, though not ‘piercing the corporate veil’ because individual members were not exposed to unlimited personal liability. Impecuniosity or otherwise of any of the respondents was therefore not a significant reason for, or against, making an order. The Tribunal rejected arguments that RCOs should be limited to individual orders for specified shares, and confirmed that a single order can be made on a joint and several basis, if just and equitable to do so. Association through common directors alone may not automatically justify a RCO, and additional linking factors will be considered - such as the use of similar business names/branding, family connections, financial dealings between companies and opaque or inaccurate corporate records. The Tribunal disagreed with the fire safety experts’ opinion that it was reasonable to interpret ‘defect’ as limited to building work that did not comply with Building Regulations (BRs) applicable at the relevant time (noting Dame Judith Hackitt’s conclusion that the pre-Grenfell BRs were not fit for purpose). A defect could therefore include wider issues contributing to a risk to the safety of people in or around the building, including a fire risk categorised as ‘medium: tolerable’ in assessment carried out under PAS 9980. Grey GR has also commenced proceedings in the TCC for Building Liability Orders (BLOs) against Edgewater and others. In March 2025, two important BSA cases were heard in succession by the Court of Appeal: Triathlon Homes v SVDP & others - contesting the first instance decision to allow a RCO to be made retrospectively recovering costs incurred prior to enactment of the BSA; and considering whether it was ‘just and equitable’ to do so; and Adriatic Land 5 v Lessees of Hippersley Point - reconsidering retrospective effect of Schedule 8 costs protections for qualifying leaseholders. Court submissions can be viewed online, with judgments currently awaited. In Triathlon Homes [2023] at first instance, the claimant long leaseholder of 5 blocks within the East Village estate in Stratford successfully applied for a RCO against the original developer and its parent company, requiring them to contribute approximately £17 million towards rectification of fire safety defects. The FTT held that the motivation behind the RCO application, and the availability of other potential remedies, was irrelevant. The new jurisdiction is essentially ‘not fault-based’, providing a route to secure funding for remedial works, with emphasis on expedited protection for residents. The fact that funds for remediation works had already been obtained from the Building Safety Fund was not a valid reason against making a RCO, since public funding should be an avenue of last resort, and swift reimbursement would mean the funds could be used in the public interest to remediate other unsafe buildings. In Monier Road v Blomfield & others [2025] the Upper Tribunal confirmed that a RO application does not require or enable the FTT to conduct a building safety audit. It also discusses the circumstances in which the FTT can (a) raise new issues not advanced by the parties and (b) use its expert knowledge, making plain that proceedings before the FTT are an adversarial (not inquisitorial) process. The dispute concerned a building in East London with commercial premises at ground level, five storeys of residential flats above and a roof terrace containing a garden and stored plant/machinery. At first instance, the FTT queried, on its own motion, whether the building should be considered ‘higher risk’, assuming the rooftop area qualified as a ‘storey’. This conclusion was contrary to previous government guidance from June 2023, that a ‘storey’ must be fully enclosed, creating uncertainty over the correct approach in subsequent cases. In 2023, ROs were granted in Batish v Inspired Sutton and Waite v Kedai to cover costs of remediating external cladding and fire safety issues. Leaseholders were unable to recover their costs of the proceedings as the FTT is a ‘no costs’ jurisdiction, save where a party has acted unreasonably - a high threshold that was not met in the circumstances. Subsequent FTT decisions in respect of Centrillion Point and Orchard House demonstrate that a full specification of defects is not required for an RO to be granted. The Leasehold and Freehold Reform Act 2024 took effect in October, adding detail to the wider RO and RCO provisions in the BSA and providing clarity on matters such as the scope of recoverable costs, steps that landlords are required to take regarding mitigation of defects, and practical matters where the responsible person for a building is insolvent: Relevant Steps An RO can now also require a landlord to undertake mitigation measures in respect of a relevant defect. For example, this could include steps such as implementation of a waking watch, and installation of fire alarms or sprinkler systems, in order to prevent or reduce the likelihood of a fire or collapse of a building, to reduce the severity of any such event and/or to prevent or reduce the anticipated harm caused. Recoverable Costs Categories of expenditure that may be the subject of a RCO have been expanded to include mitigation measures, decant costs (arising from temporary re-location of residents) and expert fees. Expert Reports The Tribunal now has the power to order landlords to produce expert evidence to deal with defects and/or mitigation measures. Insolvency Within 14 days of an insolvency practitioner being appointed in relation to an accountable person for a higher-risk building, details must be provided to the Regulator, including information under the Insolvency Rules 2016 and an official copy of the register of title. The changes apply to existing proceedings pending before the FTT, as well as those commenced after the new legislation came into force. Building Liability Orders The BSA gives the High Court powers to issue BLOs where ‘just and equitable’ to do so (section 130), extending a ‘relevant liability’ for building safety defects to an associated entity. This could apply to related companies in a defendant’s group, including those domiciled overseas. The claimant would then be able to pursue all parties subject to the order on a joint and several liability basis. The implications are far reaching, circumventing the protection typically achieved by developers on past projects through use of an SPV. In 381 Southwark Park Road v Click St Andrews [2024], Jefford J in the TCC made a BLO extending the liability of a developer (Click St Andrews) for building safety defects to its parent company (Holdings). The management company and leaseholders of the building had previously been awarded damages for rainwater ingress, structural defects and fire safety issues. The BSA did not require the Court to quantify the relevant liability at the point of making the BLO. Holdings fell squarely within the definition of ‘associated’, given the corporate structure, with the same person in effective control of both companies. In deciding that it was just and equitable to make a BLO, the Judge had regard to the purpose of the BSA and intention to ensure developers and group companies cannot escape liability for building safety defects through corporate structuring. The financial position of the associated company is irrelevant, and it did not matter that Holdings was said to have no real assets. It was not necessary for Holdings to have been identified in the pleadings, before a BLO could be made, although it would be sensible to join the intended BLO defendant to proceedings where it is known that an application will be made against them, to facilitate effective case management. The claimants’ argument that section 130 acted as a gateway to a broader order as to the liability of an associated body corporate, so that the BLO could extend to recovery of all losses arising from any liability on the part of Click St Andrews (i.e. not only safety defects) was rejected. Information Orders Aside from the adjudication enforcement proceedings referenced above, BDW is pursuing several other claims against Ardmore on various construction projects and applied to the TCC for a Building Liability Information Order (BLIO), requiring disclosure of information to assist with evaluating whether to seek a BLO. Section 132 of the BSA provides  that a BLIO may be made only if it appears to the court: (i) that the specified corporate entity is subject to a relevant liability, within the meaning of section 130, and (ii) that it is appropriate to require the information or documents to be provided, for the purpose of making, or deciding whether to apply for a BLO. The judgment of Keyser J notes that a BLO application could be made before any relevant liability has been established; or proceed in tandem with litigation against the principal defendant; or, in some cases, be deferred until after trial of claims in respect of alleged relevant liability of the principal defendant. BDW’s attempt to rely on Explanatory Notes to the BSA, suggesting that BLIOs could be made directly against associated entities, was rejected by the TCC. A BLIO could therefore only be made against Ardmore, and not any group companies. Further, a BLIO could only be granted if the Court took the view that the respondent is in fact currently liable to the applicant for a building safety related claim concerning the specified building in respect of which a BLO was being considered. It follows that BLIO applications: “ought…to be short and uncomplicated”; do not “impose on the court any obligation to become embroiled in assessments of the merits”; and that might mean “that applications for [BLIOs] will be made sparingly in cases where liability is in issue”. Where a BLIO is made, this is likely to be narrow in scope. BDW’s application for a BLIO, seeking 17 different categories of detailed information, was therefore dismissed in its entirety. Insurance Implications The significant expansion of liability exposures under the BSA has profound implications for those involved in the commissioning and construction of residential properties, and their insurers. The extent to which claims founded on breaches of the DPA are indemnifiable under professional indemnity (PI) insurance is a contentious issue, yet to be considered by the English courts. Recent TCC decisions such as Vainker v Marbank [2024] suggest that the test for liability impliedly incorporates an assessment of ‘reasonableness’ in relation to the defendant’s conduct, consistent with the Law Commission report preceding enactment of the DPA, such that resulting legal liability in a professional capacity should, in principle, trigger coverage under PI policies. Stakeholders operating in this sector should carefully investigate the scope of insurance cover available, to mitigate risks arising from the new systems of oversight applicable to complex buildings at the design, construction and occupational stages. Policy provisions relating to claims notification, aggregation of loss, and exclusion of claims arising from cladding, fire safety, and/or contractual liability, are particularly important and merit close attention prior to inception. By Amy Lacey, Partner & Joanna Grant, Managing Partner