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Robust case debate clarifies complex court issues

The need for defendant lawyers in professional and financial lines to debate current case law was hi...

The need for defendant lawyers in professional and financial lines to debate current case law was highlighted at an event last week as a range of "moot points" were put up for discussion.

Barlow Lyde and Gilbert placed partners and associates head-to-head on complex issues of day-to-day significance to the market, chaired by head of BLG's London market group, Simon Konsta.

In the first scenario put forward, the case of a sole practitioner sued for negligence following the dishonesty of a solicitor in his practice and poorly conducted litigation was considered. It focused on MDIS v Swinbank (1999), in which the insurer was not precluded from declining cover for dishonesty, where this had not been pleaded against the insured as the insurer was entitled to look beyond the way that the claimant had put its case and ascertain the true "proximate cause of the loss" to determine whether it was liable under the policy. Partner Andrew Blair and associate Gaby Kaiser also debated the circumstances in which it was open to insurers to claim damages from the insured for prejudice suffered as a result of a delay in notifying the claim.

Partners Francis Kean and Andrew Horrocks tackled the question of mitigation and particularly whether insurers are obliged to indemnify the insured in respect of expenditure incurred in order to prevent or minimise further loss, which may otherwise fall to the insurer, focusing on the application of the decision in Yorkshire Water v Sun Alliance and London Insurance and Ors (1998) to an accountants' professional indemnity policy.

Mr Konsta concluded: "Arid legal analysis can have its place but only goes so far in terms of problem solving. Realistic case studies, coupled with a robust debate of the legal and commercial issues, help to signpost the key factors."

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