|
The Commercial Court held that, the broker JLT, was under a duty post-placement
to alert its clients HIH, as reinsured, to matters of potential concern
on coverage. However, it also found that HIH had failed to prove that
its loss was caused by JLT's breach of duty, so HIH claim failed for
lack of causation. Both HIH and JLT appealed.
Film finance was provided by investors
via a trust company, "L", for the production of three "slates"
of films identified as H1, H2 and H3, supported by insurance and back-to-back
reinsurance against the risk of the films not generating sufficient
revenue to repay the finance. JLT placed both the insurance and reinsurance,
whereby the insurers, HIH, "fronted" for reinsurers.
In the case of each slate fewer films
were produced than originally intended and the returns fell substantially
short of the projected revenues. HIH paid the claims of investors and
sought to recover from the reinsurers. It was held that the reduction
in the number of films made was a breach of warranty, so that HIH's
claims against the reinsurers failed. HIH then brought proceedings against
JLT on the basis that JLT was in breach of the duty it owed HIH post-placement
to alert it to coverage issues arising from the making of fewer films.
The court, found that JLT did owe a post-placement
duty to HIH which involved more than merely acting as a "post-box"
and that in the circumstances JLT ought to have sought instructions
or at least ensured that HIH was sufficiently aware of the potential
concern to assess what, if any, instructions to give. The fact that
the court went to hold that JLT's breach of duty did not cause the loss
(as HIH had not shown that the reinsurers would have agreed to cover
the risk had they known of the reduced slates) does not detract from
the existence of a duty of care in such circumstances. However, Langley
J also stated obiter that had the breach of duty caused loss, he would
have held HIH to have been liable for 70% by way of contributory negligence
and therefore only able to recover 30% from JLT.
|