Towry Law plc v Chubb Insurance Co of Europe SA - [2008] NSWSC 1352

No judgment structure available for this case.

CITATION: Towry Law v Chubb Insurance [2008] NSWSC 1352

HEARING DATE(S): 15/09/08, 16/09/08, 17/09/08, 18/09/08, 19/09/08, 22/09/08, 23/09/08, 24/09/08, 25/09/08, 1/10/08, 2/10/08, 3/10/08

JUDGMENT DATE :
19 December 2008

JUDGMENT OF: McDougall J at 1

DECISION: See paras [245] to [246] of the judgment.

CATCHWORDS: INSURANCE - Insurance contract - construction and interpretation - objective intention of the parties - contract must be considered as a whole. - EQUITY - Equitable remedies - mistake - rectification - common contractual intention. - EQUITY - Conventional estoppel - adoption of mutual assumption - inducement of assumption - reliance - detriment - whether parol evidence rules excludes evidence of pre-contractual negotiations in proving conventional estoppel.

LEGISLATION CITED: Evidence Act 1995
Insurance Contracts Act 1984 (Cth)

CASES CITED: Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99
Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267
Coghlan v SH Lock (Australia) Ltd (1985) 4 NSWLR 158
Commissioner of Stamp Duties NSW v Carlenka Pty Ltd (1995) 41 NSWLR 329
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2006] QCA 194
Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175
Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No.4) [2006] NSWSC 90
Johnson Matthey Ltd v AC Rochester Overseas Corporation (1990) 23 NSWLR 190
Kaye Lokumal & Sons (London) Ltd v Lotte Shipping Co Pty Ltd (the “August Leonhardt”) [1985] 2 Lloyds LR 28
MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39
Moratic Pty Ltd v Gordon (2007) Australian Contract Reports 90-255
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 461 – 462 [22]
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603
Thompson v Palmer (1933) 49 CLR 507
Touche Ross and Co v Baker [1992] 2 Lloyds Rep [207]
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530

TEXTS CITED: Australian Oxford Dictionary (second edition, 2004)
Estoppel by Conduct and Election (Thompson Sweet and Maxwell, 2006)

PARTIES: Towry Law PLC (Plaintiff)
UKFP (Asia) HK Limited (Second Plaintiff)
Henderson Group PLC (Third Plaintiff)
Chubb Insurance Company of Europe SA (First Defendant)
CNA Insurance Company Ltd (Second Defendant)
ACE European Group Ltd (Third Defendant)
Zurich Specialties London Ltd (Fourth Defendant)
Great Lakes Reinsurance (UK) PLC (Fifth Defendant)
St Paul Travelers Casualty & Surety Company of Europe Ltd (Sixth Defendant)
New Hampshire Insurance Company (Seventh Defendant)
Bestpark International Ltd (Eighth Defendant)
The Underwriter Insurance Company Ltd (Ninth Defendant)
Wurttembergische Versicherung AG (Tenth Defendant)
Assicurazioni Generali Spa (Eleventh Defendant)
Newline Corporate Name Ltd (Twelfth Defendant)
Oak Dedicated Ltd (Thirteen Defendant)
Jago Capital Ltd (Fourteenth Defendant)
Catlin Syndicate Ltd (on its own behalf and representing all members of Lloyd's syndicate 1003) (Fifteenth Defendant)
Catlin Syndicate Ltd (on its own behalf and representing all members of Lloyd's Syndicate 2003) (Sixteenth Defendant)
RG Wasey (on his own behalf and in a representative capacity on behalf of Lloyd's Syndicate 1047)(Seventeenth Defendant)
Camperdown UK Ltd (Eighteenth Defendant)
Limit (No.3) Ltd (Nineteenth Defendant)
Amlin Corporate Member Ltd (on its own behalf and representing all members of Lloyd's Syndicate 2001) (Twentieth Defendant)
SVB Syndicates Ltd (in a representative capacity on behalf of all members of Lloyd's Syndicate 1241) (Twenty First Defendant)
SVB Syndicate Ltd (in a representative capacity on behalf of all members of Lloyd's Syndicate 1007) (Twenty-Second Defendant)
ACE Underwriting Agencies Ltd (in a representative capacity on behalf of all members of Lloyds Syndicate 2488) (Twenty-Third Defendant)
Mark John Harrington (on his own and representing all members of Lloyd's Syndicate 0079) (Twenty-Fourth Defendant)
Liberty Syndicate Management Ltd (on behalf of all members of Lloyd's Syndicate 0190) (Twenty-Fifth Defendant)
Dornoch Ltd (on its own and in a representative capacity of all members of Lloyd's Syndicate 1209) (Twenty-Sixth Defendant)
Old Faithful Underwriting (on its own behalf and representing all members of Lloyd's Syndicate 861) (Twenty-Seventh Defendant)

FILE NUMBER(S): SC 50183/05

COUNSEL: M A Pembroke SC / T M Mehigan (Plaintiffs)
A J Meagher SC / R J H Darke SC / G K J Rich (Defendants)

SOLICITORS: Allens Arthur Robinson (Plaintiffs)
Deacons Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

19 December 2008

50183/05 TOWRY LAW PLC & ORS v CHUBB INSURANCE COMPANY OF EUROPE SA & ORS

JUDGMENT

1 HIS HONOUR: These proceedings concern a composite Lloyds policy of insurance number 823/9901238 (the policy). The named “Assured” in that policy was AMP Limited (AMP). The policy was underwritten by the first to third and fifth to twenty-seventh defendants in stated separate proportions. The period of insurance ran from 31 December 1999 to 31 December 2002.

2 By endorsement number 8 to the policy, the period of insurance was extended by a year, to 31 December 2003. Not all underwriters agreed to the extension. There was accordingly a shortfall in cover for the further year. The fourth and fifth defendants issued a “shortfall policy” number FB0201854, whereby they agreed to underwrite some (but not all) of that shortfall for the further year.

3 The plaintiffs became subsidiaries of AMP at various times during the original period of insurance. They claim to fall within the definition of “Assured” in the policy (which definition applies also to the shortfall policy). They assert an entitlement to be indemnified under the policies in respect of certain claims made against the second plaintiff. Those claims arise out of matters that occurred before the second plaintiff became a subsidiary of AMP. There is a dispute between the plaintiffs and the defendants as to whether, upon the true construction of the policy (for convenience, I will in general refer to “the policy”, on the basis that its terms are incorporated into the shortfall policy) and in the events that have happened, the defendants are obliged to indemnify the plaintiffs. In broad outline, that dispute involves three fundamental issues:

“The Retroactive Date in respect of the acquisition to be the date of acquisition or to be agreed by Underwriters.”

(2) If the question of construction is resolved in favour of the plaintiffs, the defendants say that the policy, so construed, does not represent the common intention of the parties, and that it should be rectified in substance to provide that a company acquired by AMP during the period of insurance is not entitled to be indemnified in respect of claims arising out of events that occurred before the date of acquisition unless the defendants expressly agree otherwise.

The questions for decision

4 The parties formulated some sixteen questions arising out of the broad issues that I have just outlined. The Court ordered that those questions be determined separately from and before the determination of any other questions arising in the proceedings. Those questions, somewhat modified to take account of amendments to the “pleadings” after the order for separate and prior determination was made, are as follows:

Cross Claim

Defence to

Cross Claim

(As more particularly set out in paragraphs 16 to 18, 21, 23 and 24(c) of the Cross Claim and paragraphs 5 to 7 and 10 to 11 of the Defence to Cross Claim).

3. If the answer to questions 1 and 2 is no, is the Cross Defendant estopped from denying that General Condition 12(B) of the Policy operates to impose a retroactive date exclusion or limitation (the retroactive date being the date of acquisition or such other date as may be agreed by Underwriters) on any cover provided under Section IV of the Policy to a Subsidiary acquired after 31 December 1999?

Cross Claimants' Reply

Response to Summons

Plaintiffs’ Reply

(As more particularly set out in paragraphs 15 and 24(b) of the Cross Claim and paragraphs 4 and 11 of the Defence to Cross Claim).

7. If the answer to question 6 is no, should the Shortfall Policy be rectified so that it operates to impose a retroactive date exclusion or limitation (the retroactive date being the date of acquisition or such other date as may be agreed by Underwriters) on any cover provided under Section IV of the Shortfall Policy to a Subsidiary acquired after 31 December 1999?

(As more particularly set out in paragraphs 19 to 20, 22 to 23, and 24(c) and (d) of the Cross Claim and paragraphs 8 to 11 of the Defence to Cross Claim).

(As more particularly set out in paragraphs 1 and 22 to 38 of the Cross Claimants' Reply).

(As more particularly set out in paragraph 22(d)(i) of the Response to Summons and paragraph 8 of the Plaintiffs' Reply).

(As more particularly set out in paragraphs 22(d)(ii) and 50 to 68 of the Response to Summons and paragraphs 9, 13 and 14 of the Plaintiffs' Reply).

Summons

(As more particularly set out in paragraph 32 of the Summons, paragraph 6(c) and 6(d) of the Response to Summons).

Insurance Contracts Act

(As more particularly set out in paragraph 2 of the Plaintiffs' Reply).

(As more particularly set out in paragraph 22(d)(i) of the Response to Summons and paragraphs 2 and 8 of the Plaintiffs' Reply).

15. If the answer to question 14 is no, are the Plaintiffs estopped from denying that General Condition 12(B) operates to impose a retroactive date exclusion or limitation (the retroactive date being the date of acquisition) on any cover provided to the First and Second Plaintiffs under Section IV of any such statutory contract?

16. Are the Defendants entitled to:

(a) declaration to the effect claimed in paragraph 24(a) of the Cross Claim;
(b) a declaration to the effect claimed in paragraph 24(b) of the Cross Claim;
(c) an order to the effect claimed in paragraph 24(c) of the Cross Claim;
(d) an order to the effect claimed in paragraph 24(d) of the Cross Claim;
(e) a declaration to the effect of paragraph 38 of the Cross Claimants' Reply;
(f) a declaration to the effect of paragraph 22(d)(i) of the Response to Summons; and/or
(g) declarations to the effect of paragraphs 22(d)(ii), 65 and/or 67 of the Response to Summons.

NOTE : The 16 questions set out above are in the same terms as the questions which have been ordered to be determined separately and in advance of all other issues in the proceedings, save that:

In question 7 the words “General Condition 12(B) of” have been deleted from the first line.

In question 16 a new paragraph (d) has been added.

These alterations have been made as a consequence of the amendments recently made to the pleadings in connection with the claim for rectification of the Shortfall Policy.

5 Question 12 arises because the defendants named in it assert that they did not scratch, or otherwise become bound by, endorsement 8: the endorsement whereby the period of insurance was extended from three to four years, expiring on 31 December 2003. If question 12 is answered in favour of those defendants, then question 13 becomes relevant. The plaintiffs assert that the insurance cover offered by the policy was “renewable insurance cover” as defined in s 58(1) of the Insurance Contracts Act 1984; that the defendants in question did not give notice of the kind referred to in s 58(2); and that in those circumstances, the plaintiffs are entitled, as against those defendants, to the benefit of a statutory contract of insurance in accordance with s 58(3).

6 To make question 16 a little more comprehensible, I set out the paragraphs of the “pleadings” to which they refer:

24(a) A Declaration that, on the proper construction of the Policy, General Condition 12(B) operates to impose a retroactive date exclusion, whereby, unless specifically agreed otherwise at the time of acquisition, any insurance cover provided under Section IV of the Policy to an entity acquired after 31 December 1999 excludes claims arising from circumstances which occurred before the date of acquisition.

24(c) Alternatively, an Order that the Policy and the Shortfall Policy be rectified by adding the two underlined words and two underlined letters, and by deleting the word and two capital letters that are struck through, in General Condition 12(B), as set out below:

Notwithstanding sub-clause (i) of Section A of this General Condition, acquisitions made by the Assured will be automatically covered by this Policy on terms and conditions to be agreed by Underwriters and subject to advice to Underwriters within 60(sixty) days of acquisition, provided that:

(a) the employees of any such acquisition do not exceed the number expressed in Item 15(A) of the Schedule, and

(b) total assets do not exceed the amount expressed in Item 15(B) of the Schedule, and

(c) no loss, of the type covered by this insurance greater than the amount expressed in Item 15(C) of the Schedule has been sustained in the last five years by the company acquired.

24(d) Further to paragraph (c) above, an Order that the Shortfall Policy be rectified by adding the words and numbers marked in bold to General Definition 2, as set out below:

“’Assured’ means:

(i) the Assured named and stated in Item 2 of the Schedule to this Policy; and/or

(ii) any Subsidiary Company or Companies as at inception of the policy period expressed in the Schedule; and/or any Subsidiary Company or Companies constituted or acquired thereafter:…

is subject to General Condition 12(B).”

38. In the premises, the Cross-Defendant and its privies are estopped from:

(a) asserting that General Condition 12(B) of the Policy did not impose a retroactive date exclusion, whereby losses incurred and claims arising from circumstances which occurred before the date of acquisition are excluded from the cover provided under Section IV of the Policy to a Subsidiary acquired after 31 December 1999;

(b) denying that General Condition 12(B) has the effect of excluding from the cover- provided under Section IV of the Policy to Subsidiaries acquired after 31 December 1999, losses incurred and claims arising from circumstances which occurred before the date on which they became a Subsidiary;

(c) asserting that General Condition 12(B) did not impose a retroactive date exclusion, whereby losses incurred and claims arising from circumstances which occurred before the date of acquisition are excluded from the cover provided under Section IV of the Shortfall Policy to a Subsidiary acquired after 31 December 1999;

(d) denying that General Condition 12(B) has the effect of excluding from the cover provided under Section IV of the Shortfall Policy to Subsidiaries acquired after 31 December 1999, losses incurred and claims arising from circumstances which occurred before the date on which they became a Subsidiary; and

(e) denying the facts pleaded in paragraphs 14 and 15 of the Cross-Claim.

22(d)(ii) in the alternative, by reason of the matters pleaded in paragraphs 30 to 67 below, the Plaintiffs are estopped from denying that General Condition 12(B) operated so as to impose a retroactive date exclusion on any cover provided to the First and Second Plaintiffs under Section IV of the Policy and the Shortfall Policy (the retroactive date being the date on which the First and Second Plaintiffs became Subsidiaries of AMP Limited).

65. In the premises, AMP Limited and its privies are estopped from:

(a) asserting that General Condition 12(B) did not impose a retroactive date exclusion on the cover provided to the First and Second Plaintiffs under Section IV of the Policy, whereby claims arising from circumstances which occurred before the date of acquisition are excluded;

(b) denying that General Condition 12(B) has the effect of excluding from the cover provided to the First and Second Plaintiffs under Section IV of the Policy claims arising from circumstances which occurred before the date on which the First and Second Plaintiffs became Subsidiaries of AMP Limited;

(c) asserting that General Condition 12(B) did not impose a retroactive date exclusion on the cover afforded to the First and Second Plaintiffs under Section IV of the Shortfall Policy, whereby claims arising from circumstances which occurred before the date of acquisition are excluded; and

(d) denying that General Condition 12(B) has the effect of excluding from the cover provided to the First and Second Plaintiffs under Section IV of the Shortfall Policy claims arising from circumstances which occurred before the date on which the First and Second Plaintiffs became Subsidiaries of AMP Limited.

67. In the premises, there is a privity of interest between each of the Plaintiffs and AMP Limited in relation to the Policy and the Shortfall Policy and the Plaintiffs are bound by the estoppels pleaded in paragraph 65 above.

Relevant terms of the policy

7 The policy was signed on 13 June 2000 by the Lloyds policy signing office. It includes some seven sections, each offering specific insurance cover on individual terms and conditions. Those terms and conditions include special definitions, special exclusions and special conditions applicable to each individual section. The policy also includes a schedule of general application, and general definitions, general exclusions and general conditions. Those general definitions, exclusions and conditions apply to all sections of the policy except to the extent that their operation is expressly excluded.

8 Item 2 of the schedule states the name of the Assured as “AMP Limited”. Item 4, “Retroactive Date”, states that there is “no retroactive limitation”. Item 8 of the schedule sets out the deductibles under the various sections of the policy. In general terms, the deductible is $5 million for each claim (with a maximum amount of $25 million for any 12 month period of the policy), subject to a number of stated different deductibles for various sections and subsections of the policy.

9 Item 15 of the schedule is relevant, but I will return to it after setting out the terms of general condition 12(B).

10 Section I of the policy deals with Blanket Bond insurance. The insuring clause offers indemnity “for such direct financial loss as hereafter stated sustained by the Assured subsequent to the Retroactive Date and discovered by the Assured during the period of the policy”. Clause 16 of the special exclusions to section I excludes “loss not discovered during the period of the Policy and any loss sustained prior to the Retroactive Date stated in the Schedule…”.

11 Section II deals with electronic and computer crime. Its insuring clause, and a relevant special exclusion (number 15) refer to the “Retroactive Date” in the same way as do the insuring clause and the relevant special exclusion (number 16) for section I.

12 Section III of the policy provides Special Accident insurance. As with sections I and II, the insuring clause restricts the obligation to indemnify to loss (of the relevant kind) “sustained by the Assured subsequent to the Retroactive Date”. However, there do not appear to be any special exclusions relevant to section III.

13 Section IV deals with Professional Indemnity. The plaintiffs say that section IV is the section of the policy pursuant to which they are entitled to indemnity.

14 The insuring clause “provides an indemnity to the Assured… in respect of the Assured’s legal liability to third parties for any third party claim which meets” a number of specified requirements. It is not necessary to go to those requirements for the purpose of dealing with the 16 questions.

15 Section IV contains a special definition of “Assured”:

1 “Assured” shall mean:

(b) the Officers and Employees (as defined in these Special Definitions) of the Assured while acting in such capacity.

16 There is nothing in the insuring clause for section IV that makes reference to a “Retroactive Date”. Nor is there any special exclusion that refers to a “Retroactive Date”.

17 Section V of the policy deals, in subsection A, with Superannuation Trust Funds Insurance and, in subsection B, with Superannuation Trustees Liability.

18 The insuring clause for section VA refers to “loss or damage sustained or liability incurred as specified in Section I – Blanket Bond or Section II – Computer Crime – of this policy”. There is no specific reference in the insuring clause to a “Retroactive date”; but that concept is called up through the cross-references to sections I and II.

19 The insuring clause for Section VB does not include, expressly or by incorporation, any reference to a “Retroactive Date”.

20 There is no special condition to either subsection referring to a “Retroactive Date”.

21 Special condition (a) notes that for the purposes of section VB only, “General Conditions, 1, 2, 8, 9, 12, 15 and 16 are deemed to be deleted”.

22 Each subsection includes a specific definition of “Assured”. I do not think that anything of present moment turns on the wording of those definitions.

23 Section VI offers Responsible Entity Insurance. Neither the insuring clause nor any special condition makes reference to a “Retroactive Date”.

24 As with section VB, general conditions 1, 2, 3, 8, 9, 12, 15 and 16 “are deemed to be deleted”.

25 Further, the general exclusions for which the policy provides “are deemed to be deleted” and a number of special exclusions are substituted. By special exclusions 5 and 10, the underwriters are not to “be liable for Loss arising from any Claim made:

5. Prior Claims and Circumstances

In respect of any matter:

(a) where notice has been given to Underwriters of any other insurer under a previous insurance policy; or

(b) disclosed to Underwriters before the commencement of the Policy Period; or

Responsible Entity

Insured

claim.

This exclusion is independent of and shall not affect the Underwriters other rights regarding misrepresentation and non-disclosure.

…

10. which arises out of or in connection with any loss or claim as expressed in the Insuring Clauses of this Section:

Responsible Entity; and

Responsible Department

prior to the inception of cover under this Section.

26 Special exclusions 5 and 10 are examples of what were frequently referred to, both in the evidence and in submissions, as “Discovery Limitation Clauses” or “DLCs”.

27 Section VII of the policy offers Directors and Officers liability insurance (D and O insurance). Perhaps not surprisingly, there is a special definition of the “Assured” who are entitled to the benefit of indemnity under section VII. They are defined by reference to “the Company”. By cl 1.2 of that definition, the company in effect is AMP, and the Assured “shall include every Subsidiary Company thereof” subject to cl 1.2.1. So far as it is relevant, cl 1.2.1 provides that:

1.2.1 Where a Subsidiary Company is acquired or created after the commencement of the Policy Period indemnity will be provided to the Assureds and the Subsidiary Company but only in respect of any Wrongful Act committed, attempted, or allegedly committed or attempted subsequent to the date of acquisition or creation unless otherwise agreed in writing by Underwriters.

Where the total assets of any Subsidiary Company acquired or created subsequent to the commencement of the Policy Period exceed 20% of the total assets of the company notification shall be provided to underwriters as soon as reasonably practicable. Underwriters shall be entitled to such additional information as they may require in respect of such acquired or created Subsidiary Company and shall have the right to charge a reasonable additional premium.

28 Neither the insuring clause nor any other part of Section VII refers (expressly) to a “Retroactive Date”.

29 As I have said, there are a number of general definitions. General definition 2 deals with the concept of the “Assured”. So far as is relevant, it reads as follows:

2. “Assured” means:

(i) the Assured named and stated in Item 2 of the Schedule of this Policy; and/or

(ii) any Subsidiary Company or Companies as at inception of the policy period expressed in the Schedule; and/or any Subsidiary Company or Companies constituted or acquired thereafter: and/or

…

provided that the inclusion in this insurance of companies acquired by the Assured subsequent to commencement of the Policy Period stated in Item 3 of the Schedule is subject to General Condition 12(B).

30 At the conclusion of the General Definitions, the following appears:

WHENEVER ANY OF THE ABOVE TERMS APPEAR IN THIS POLICY, THE WORDS “AS DEFINED” SHALL BE DEEMED TO BE INCORPORATED IN THE TEXT IMMEDIATELY FOLLOWING EACH OF THE SAID TERMS.

31 There is no definition, there or indeed in any of the special definitions, of the phrase “Retroactive Date”.

32 The general exclusions include two clauses, numbered 3 and 4, which are examples of Discovery Limitation Clauses:

(a) which has been notified to the Insurer on any other policy of insurance effected prior to the inception of this policy; or

(b) was known to the Responsible Department prior to the inception hereof.

4. Any claim:-

(a) arising out of or in connection with any circumstances or occurrences which have been notified to the insurer on any other policy of insurance effected prior to the attachment date of coverage hereunder;

(b) arising out of or in connection with any circumstances or occurrences known to the Assured prior to the attachment date hereof.

33 It was common ground that cl 4 of the general exclusions had not been in any of the prior policies (see at [58] and following below), but that cl 3 had been in each of those policies.

34 Clause 12 of the general conditions deals with two subjects: merger or change in ownership (cl 12(A)), and acquisitions (cl 12(B)). Although cl 12(A) is of limited relevance, it is referred to in cl 12(B) and accordingly I set out the whole of the clause:

12(B) Acquisitions

Notwithstanding sub clause (1) of Section A of this General Condition, acquisitions made by the Assured will be automatically covered by this Policy on terms and conditions to be agreed by Underwriters and subject to advice to Underwriters within 60 (sixty) days of acquisition, provided that

(a) the employees of any such acquisition do not exceed the number expressed in Item 15(A) of the Schedule, and

(b) total assets do not exceed the amount expressed in Item 15(B) of the Schedule, and

(c) no loss, of the type covered by this insurance greater than the amount expressed in item 15(C) of the Schedule has been sustained in the last five years by the company acquired.

The Retroactive Date in respect of the acquisition to be the date of acquisition or to be agreed by Underwriters.

Notwithstanding anything contained herein it is further understood and agreed that there shall be no automatic cover for acquisitions in the USA and/or Canada.

35 From time to time in their submissions, the parties referred to the sentence in which the phrase “[t]he Retroactive Date” appears as “the retroactive date sentence” or “the relevant sentence”. I shall adopt those usages in these reasons.

36 I return to item 15 of the schedule. For the purposes of general condition 12(B)(a), item 15 specifies the number of employees as 1800. For the purposes of general condition 12(B)(b) item 15 specifies the total assets as $8 billion. For the purposes of general condition 12(B)(c), Item 15 specifies the maximum amount of loss as $5 million.

The proper construction of general condition 12(B)

37 The issue of construction is raised by questions 1, 4 (in part), 6 (in part), 9 (in part), 14 (in part), 16(a), 16(b) and 16(f).

Broad outline of the competing positions

38 Mr MA Pembroke of Senior Counsel, who appeared with Mr TM Mehigan of counsel for the plaintiffs and AMP (as cross-defendant) submitted that the reference to “Retroactive Date” in the relevant sentence was intended to provide content to the expression “Retroactive Date” wherever it was used in the policy: specifically, in sections I, II and III. He submitted that neither those words in particular nor the relevant sentence in general operated so as to impose a freestanding retroactive date limitation on the cover available to an after-acquired “Assured” in other circumstances, and specifically for the purposes of section IV.

39 Mr AJ Meagher of Senior Counsel, who appeared with Mr RJH Darke of Senior Counsel and Mr GKJ Rich of counsel for the defendants, submitted that the relevant sentence imposed a restriction on the cover available to after-acquired Assureds. For any section of the policy, Mr Meagher submitted, cover was not available for claims arising out of circumstances that occurred before the date of acquisition unless the underwriters specifically agreed otherwise.

40 I should note that no party submitted that general condition 12(B) was only an agreement to agree. It was common ground that, provided the conditions of general condition 12(B) were met, any subsidiary acquired by AMP during the period of insurance would be automatically covered on the terms of the policy unless and until the parties agreed otherwise. It is unnecessary to consider what might be the case if (for example) the defendants required, and AMP would not agree to, some particular term (as to premium or otherwise) in respect of a particular acquisition.

Submissions for the plaintiffs

41 Mr Pembroke submitted that on its proper construction the retroactive date sentence operated, in the case of subsidiaries acquired by AMP after 31 December 1999, to fix the “Retroactive Date” for the purposes of any insuring clause or special exclusion in the policy. He noted that the defendants were not obliged to continue to provide cover on the terms of the policy, but were free to stipulate (as from time to time they did) for particular terms or for a particular premium in respect of any acquired subsidiary.

42 He submitted that the construction for which the plaintiffs contended gave effect to the natural English meaning of the words in question, and was consistent both grammatically in the context of cl 12(B) and, more generally, with the structure of the policy as a whole. In this context, he drew attention to the way in which the policy distinguished between exclusions of and conditions to liability, both particularly (by special exclusions and special conditions for each separate section) and generally (by general exclusions and general conditions).

43 Mr Pembroke drew attention to the fact that wherever the phrase “Retroactive Date” appeared in the policy, the initial letters were capitalised. He submitted that although the phrase was not expressly defined in the policy, it is in effect a defined term because it appears in item 4 of the schedule to the policy.

44 Mr Pembroke stressed that the policy provided unlimited retroactive cover, subject to the DLCs set out in general exclusions 3 and 4. He noted that this feature of the policy had been constant throughout the various prior policies between AMP (or its mutual predecessor the Australian Mutual Provident Society Limited (the Society – in general, I shall use the expression “AMP” to denote whichever entity was the “Assured” at any given time)) and various underwriters in the London market. The first such policy (excluding D and O insurance, which until 1999 was separately effected) was negotiated in 1995, and provided cover for the period 30 September 1995 to 30 September 1998.

45 Thus, Mr Pembroke submitted, the policy provided adequate protection to the defendants whilst at the same time providing unlimited retroactive cover for businesses acquired by AMP during the period of insurance. The protection for the defendants was achieved because:

(1) they had the benefit of the DLCs in general exclusions 3 and 4; and

46 Mr Pembroke submitted that there was nothing commercially absurd in giving to general condition 12(B) the construction for which the plaintiffs contended. On the contrary, he submitted, the construction for which the defendants contended did have commercially absurd and illogical outcomes. Further, Mr Pembroke submitted, the construction for which the defendants contended was inconsistent with the natural meaning of the words in question, and with the structure of the policy overall.

Submissions for the defendants

47 Mr Meagher pointed to the definition of “Assured” in general definition 2 (see at [29] above. He noted that the words “this insurance” referred to the cover given by sections I to IV. That was so, he said, because there were special definitions of “Assured” for sections VA and VB and VII; and section VI referred not to “Assureds” but to a “Responsible Entity” or an “Insured Person”. Thus, Mr Meagher submitted, an entity acquired after the commencement of the policy period could only become an “Assured” for the purpose of any of sections I to IV if it met the requirements of general condition 12(B). In this way, Mr Meagher submitted, the policy singled out entities acquired after the commencement of the period of insurance. Their inclusion among the class of “Assured” was expressly made “subject to General Condition 12(B)”; in no other case was this done.

48 It follows from this, Mr Meagher submitted, that an acquired entity’s inclusion in the class of “Assured”, and therefore in the class of those entitled to the benefit of (among others) section IV, was expressly made “subject to” the retroactive date sentence, unless the defendants agreed otherwise. In other words, as I understood the submission, the retroactive date sentence should not be read as an exclusion, appearing perhaps somewhat anomalously (given the structure of the policy) in a general condition, but as a condition of entitlement to cover.

49 Mr Meagher submitted that the expression “retroactive date” was one commonly employed in insurance, and that it had a well understood meaning. Its meaning, he submitted, was that losses sustained prior to a specified retroactive date (with or without initial capital letters), and claims arising out of events prior to that date, were not covered.

50 Mr Meagher did not put that the market understanding of the phrase “retroactive date” (with or without initial capital letters) governed the meaning to be given to the retroactive date sentence. He did however submit that it was a matter of shared background knowledge, or context, that should be taken into account in seeking to ascertain what, objectively, the parties meant by the retroactive date sentence.

51 As to the use of initial capital letters, Mr Meagher relied on the observations of Lord Mustill in Touche Ross and Co v Baker [1992] 2 Lloyds Rep 207 at 213. His Lordship there observed “that insurance documents in the London market are rarely drawn with the precision of language needed for grammatical contrasts to be a reliable guide to intention”. In this context, Mr Meagher pointed to a number of what he said were inconsistent usages within the policy of initial capital letters: in some cases they denoted defined terms and, in other cases they did not. He did not, however, suggest that this applied to the use of the words “Retroactive Date” (see Mr Pembroke’s submission recorded at [43] above).

52 Mr Meagher noted that it was a consequence of the approach for which the plaintiffs contended that the “automatic” cover afforded to after-acquired subsidiaries under sections I to III of the policy would be subject to a retroactive date exclusion unless the defendants agreed to waive it, whereas cover under section IV would not. He submitted that there was no sensible reason why such a distinction would be drawn. On the contrary, he submitted, there was no sensible reason why a reasonable underwriter would extend automatic retrospective coverage for professional indemnity insurance (being an area in which claims were notoriously slow to develop) but impose it for crime insurance (being an area where claims were generally discovered, and notified, promptly).

Principles relevant to the question of construction

53 The parties were agreed as to the relevant principles, and thus it is not necessary to deal with them in detail. The court is concerned to ascertain the “objective intention” of the parties, insofar as that intention appears from the terms in which the parties expressed their contract and other matters to which the court may have regard. Those matters include the purpose and object of the transaction – what, in a commercial sense, the parties were seeking to achieve by it. However, in looking at the purpose or object of the transaction, the court seeks to ascertain them objectively. It does not ascertain them by reference to the subjective intentions, or expectations, of the parties. See, generally, Campbell JA in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 at 655 – 666 [262] – [265].

54 The term in question is to be given that meaning which a reasonable person, having the background knowledge of the parties at the time of the agreement was made, would understand it to have from the language used by the parties. See Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 461 – 462 [22]. In undertaking the construction of the term, the court should take into account the purpose that reasonable persons in the positions of the parties would have. To do this, the court should have regard to the genesis of the transaction, the background to it, its context, and the market in which it was made. See Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at 559 [82].

55 Further, in construing a contract, the court should have regard to all of its terms, and should seek to construe them consistently and, so far as possible, harmoniously (to paraphrase the observations of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109.

Background to the issue of the policy

56 The plaintiffs laid stress on what they said was the course of negotiations for the policy and for prior policies.

57 It seems that the Society first turned its attention to taking out composite cover in about 1991. It instructed a broker then known as Nicholson Chamberlain Colls Australia Limited to obtain quotations. That broker, which subsequently changed its names to Nicholson Leslie Australia Limited, was a member of the Nicholson Leslie Group. That group included a London broker known as Nicholson Leslie Financial Institutions Limited. The Nicholson Leslie Group was subsequently taken over by AON Group Limited. It is convenient, having acknowledged these changes, to refer to the Australian broker as “AON Australia” and to the London broker as “AON UK”, for the whole of the period with which these reasons are concerned.

58 In January 1994, AON Australia provided quotations for composite cover to the Society. In April 1994, the Society instructed AON Australia to proceed with obtaining composite cover on the London market.

59 AON Australia discussed the terms of the cover with AON UK. The Professional Indemnity section of the draft policy (then section III) referred to “the Retroactive Date” in both the insuring clause and a special exclusion. However, since the proposal was based on unlimited retroactive cover for the Society and its subsidiaries at the time of negotiation, AON Australia suggested to AON UK that these references to the Retroactive Date be deleted. After some exchange of faxes between them, this was done.

60 The changes that were negotiated between AON Australia and AON UK did not relate, in any relevant way, to general condition 12(B). The only change to that clause discussed between them related to the time for notification of acquisitions. This was extended from 30 days in the original draft to 60 days. I note that, both in the draft and in the policy that was issued for the period 22 April 1994 to 30 September 1995 (the 1994/1995 policy) clause 12(B) referred to acquisitions being “held covered” rather than “automatically covered”. The phrase “automatically covered” was first used in the 1996/1999 policy (see at [62] below).

61 At this stage, I should note that it was common ground that both AON Australia and AON UK were to be regarded as agents of the Society (and, in due course, of AMP). Thus, Mr Meagher submitted, the negotiations between them could not be described in any meaningful way as the negotiation of the terms of the 1994/1995 policy between the Society and the underwriters. The plaintiffs relied on what they said was evidence that one of the lead underwriters for the 1994/1995 policy, known as Syndicate 1007, had approved the wording of the draft policy. This was said to have occurred after the changes to which I have just referred were made. Although the individual concerned, Mr Jonathan Butcher, had no recollection of reading and approving the wording, he accepted that he would have done so before committing Syndicate 1007, and a number of other syndicates whom he was authorised to bind, to the terms of the 1994/1995 policy. It does not follow from this that Mr Butcher (or anyone else on behalf of the underwriters) was involved in the negotiation of the wording, or that the underwriters in question were aware of the debate between AON Australia and AON UK.

62 The 1994/1995 policy was in substance renewed (of course, with changes in the premium negotiated, and I think as well with some changes in the underwriters who subscribed it) for the period 30 September 1995 to 30 September 1998 (the 1995/1998 policy). That policy was replaced, during its term, by a policy covering the period 31 December 1996 to 31 December 1999 (the 1996/1999 policy). Both those policies utilised substantially (if not exactly) the wording of the 1994/1995 policy.

63 In late 1998 or early 1999, a number of underwriters scratched a “Comprehensive Crime Line Slip Facility Number 82F/FB900295”. That document was commonly referred to as the “Jumbo Line Slip” and I shall adopt that usage in these reasons.

64 The jumbo line slip was given in favour of AON UK. In substance, I think, its purpose was to make it easier for AON UK to place cover falling within the terms of the jumbo line slip.

65 The underwriters who had scratched the jumbo line slip fell into a number of different categories. One category was the “leading underwriters”. Another category was the “follow market”. In essence, if at least two of the leading underwriters made a “declaration” whereby they agreed to accept a policy falling within the terms of the jumbo line slip, the follow market was bound automatically. However, if the policy fell outside the terms of the line slip, the leading underwriters could not bind the follow market to it. There were also “bind own line” and “enhanced line” underwriters. They were not bound by any declaration made by the leading underwriters, but could accept or reject it as they pleased.

66 To jump ahead somewhat: the jumbo line slip is relevant for a number of reasons. In particular, it was common ground between the parties that, insofar as questions of subjective intention or understanding of the underwriters were relevant, the intention or understanding of the follow market – those automatically bound to a policy by a declaration made pursuant to the jumbo line slip – is to be ascertained by reference to the intention or understanding of the leading underwriters who made the declaration.

67 The 1996/1999 policy was in substance renewed for the period covered by the policy – 31 December 1999 to 31 December 2002. As before, although no doubt there were changes in the premium structure, and I think there were again changes in the composition of the underwriters, the policy wording did not change in any substantial way. One change that was made was to general condition 12(B). The words “held covered” became “automatically covered”.

68 As I have said, the period of insurance under the policy was extended for one year by endorsement 8, and the shortfall policy was issued at about the same time. Nothing relevant to the question of construction depends on these events.

Evidence of market understanding

69 The defendants relied on what they said was an understanding, in the London insurance market, of the phrase “retroactive date” when used in a policy of insurance. In substance, they submitted, that phrase was understood to indicate that cover provided subject to a “retroactive date” limitation did not extend to claims arising out of circumstances that occurred before the specified retroactive date.

70 A number of the underwriters called by the defendants did indeed give evidence to that effect. I accept that evidence. I should say that in my view, each of the witnesses called by the defendants sought to give truthful evidence. No attack was made on the credibility of any of the defendants’ witnesses, and in general I accept them, subject to the obvious limitations of memory which in most cases they acknowledged, as witnesses upon whose evidence the Court could rely.

71 It is I think self-evident that at least AON UK was a participant in the London insurance market. No evidence was called from any representative of AON UK – specifically, those within AON UK who had responsibility for placing all of the policies in question – to controvert the evidence of market understanding given by the defendants’ witnesses. Nor could any such evidence have been given. It is clear from various documents (including emails) emanating from AON UK that relevant personnel within that organisation had the same general understanding of a “retroactive date” limitation as did the defendants’ witnesses. The same may be said in general (but see at [155] to [160] below) for AON Australia and its relevant personnel.

72 Thus, to the extent that it may be relevant in informing the construction of the policy, and in particular the relevant sentence, I accept that at all material times a “retroactive date” limitation on cover in a policy underwritten in the London insurance market was understood to have the effect for which the defendants contended.

73 Nonetheless, it is necessary to bear in mind that the defendants’ witnesses conceded that they understood at all relevant times that the proper construction of the policy, in the event of a dispute, was ultimately a matter for the courts; and that their understanding of the policy in general, or of the relevant sentence in particular, might not be accepted by a court undertaking the task of construction.

Decision

74 The starting point of the analysis must be the language employed by the parties to record their agreement. That requires careful attention to the relevant terms of the policy. Those terms include at least the following:

(1) the insuring clause for section IV;

(2) the definition of “Assured” in general definition 2; and

75 Having identified those terms of the policy, it is necessary to bear in mind that they cannot be considered in isolation, either from each other or from the terms of the policy as a whole. It is correct to say – particularly from the plaintiffs’ perspective – that the references to “Retroactive Date” in item 4 of the schedule and elsewhere in the policy, and the DLCs in general exclusions 3 and 4, must be taken into account in any analysis of the relevant sentence. So, too, that analysis must take into account the provisions of the policy in which no reference is made to any “retroactive date” (with or without initial capital letters).

76 The insuring clause for section IV gives “the Assured” indemnity, subject to the terms and conditions of the section, in respect of “the Assured’s” liability to third parties meeting the requirements set out in subclause (III) of the insuring clause.

77 To understand who is entitled to the benefit of that indemnity, it is necessary to go to the definition of “Assured”. Relevantly for the purposes of this analysis, the “Assured” includes:

(i) AMP;

(ii) any subsidiaries of AMP at the inception of the policy; and

78 The definition of “Assured” includes not only AMP and its subsidiaries as I have described them, but also three other categories of entities and persons. Those other categories are not directly relevant.

79 The definition of “Assured”, having listed the various categories of entities and persons that fall within the definition, makes specific provisions for subsidiaries acquired after inception of the policy and during the policy period. I will refer to those as “after – acquired subsidiaries”. As to those after-acquired subsidiaries, but not as to any other entity or person falling within the definition of “Assured”, the definition stipulates that their inclusion “in this insurance” – i.e., within the class of entities or persons entitled to the benefit of indemnity under any section of the policy that extends indemnity to the “Assured” – “is subject to general condition 12(B)”.

80 By that means, attention is directed to the third of the provisions of principal relevance to which I have referred: general condition 12(B). The effect of the proviso to the definition of the “Assured” in general definition 2 is that an after – acquired subsidiary must meet the conditions spelled out in general condition 12(B) before it falls within the class of “Assured” so as to become entitled to the benefit of indemnity under the relevant insuring clauses.

81 General condition 12(B) is expressed to operate by way of exception to general condition 12(A)(i). Presumably, it was thought that the acquisition of a subsidiary during the period of insurance could be seen as a “purchase” falling within that subclause; or perhaps the introductory words of general condition 12(B) were inserted, in the time hallowed phrase, “for the avoidance of doubt”. Be that as it may, cl 12(B) extends to after - acquired subsidiaries meeting the criteria expressed in the clause (which I will call “relevant acquisitions”) the benefit of automatic coverage as an “Assured”.

82 As a general rule, where a particular expression is used repeatedly throughout a written contract, one should seek to give it the same meaning wherever it appears. In this case, the plaintiffs’ submissions achieve that; it is, perhaps, doubtful whether the same can be said for the defendants’ submissions. However, the application of that general principle must give way, in a particular case, to a clear (objective) indication of contrary intention.

83 In this case, the expression “Retroactive Date” is not used consistently throughout the policy. There is an obvious distinction between the way the words “Retroactive Date” are used in general condition 12(B), and the way that they are used elsewhere in the policy. In general condition 12(B), the words are not said to have some (or any) stated effect, nor is their significance explained. The relevant sentence simply says what the “Retroactive Date” is in respect of any relevant acquisition. However, where the words in question appear elsewhere, either in an insuring clause or in a special exclusion, their significance is made clear. For example, the insuring clause for section I states explicitly that the indemnity given by that section applies only for losses “sustained subsequent to the Retroactive Date”. Special exclusion 16 to that section affirms that the indemnity offered by section I does not extend to “any loss sustained prior to the Retroactive Date”.

84 This analysis lends some support to Mr Pembroke’s submission that the relevant sentence was intended only to define, in the case of relevant acquisitions, the “Retroactive Date” to the extent that this concept might be relevant. On this analysis, one would not readily attribute, to those words in the relevant sentence, any independent exclusionary effect. That is because, on this analysis, the exclusionary effect is supplied expressly by other provisions of the policy called up by those words, or in which those words are used.

(3) Question 3 should be answered “does not arise”; but if it did arise, it would be answered “yes”.

(4) Question 4 should be answered “yes”.

(5) Question 5 should be answered “does not arise”; but if it did arise, it would be answered “yes”.

(6) Question 6 should be answered “yes”.

(7) Question 7 should be answered “does not arise”; but if it did arise, it would be answered “yes”.

(8) Question 8 should be answered “does not arise”; but if it did arise, it would be answered “yes”.

(9) Question 9 should be answered “yes”.

(10) Question 10 should be answered “does not arise”; but if it did arise, it would be answered “yes”.

(11) Question 11: the parties agreed that question 11 should be answered “3 August 2001 .”

(12) Question 12 should be answered “none”.

(13) Question 13(a) should be answered “no”.

Question 13(b) should be answered “does not arise”.

(14) Question 14 should be answered “does not arise”; but if it did arise, it would be answered “yes”

(15) Question 15 should be answered “does not arise”; but if it did arise, it would be answered “yes”.

(16) Questions 16(a), (b) and (f) should be answered “yes”.

(17) Questions 16(c) and (d) should be answered “no”.
(18) Questions 16(e) and (g) should be answered “no”.

243 The conclusions to which I have come mean that the plaintiffs’ claim against the defendants must fail, and the plaintiffs’ proceedings must be dismissed.

244 The defendants are entitled to some (but not all) of the declaratory relief sought by them in their cross-claim.

Orders

245 I direct the answers that I have given to the separate questions to be recorded.

246 I direct the parties to bring in short minutes of order to give effect to the conclusions that I have reached. Those short minutes of order should deal both with the relief to which the cross-claimants are entitled on their cross-claim and with the question of costs. Those orders are to be provided electronically to my Associate by 30 January 2009. If the parties cannot agree on the orders to be made (including as to costs) then they are to provide electronically the orders for which they contend, together with a written outline of their submissions in support of those orders. That is to be done by 13 February 2009.

247 I stand the proceedings over to 18 February 2009 at 9:30 am. I will deal with any disagreements, either as to the form of order or as to costs, on that occasion.

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Citations

Towry Law v Chubb Insurance [2008] NSWSC 1352

Most Recent Citation

Quintis Ltd (Subject to Deed of Company Arrangement) v Certain Underwriters at Lloyd's London Subscribing to Policy Number B0507N16FA15350 (No 2) [2021] FCA 327

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Quintis Ltd (Subject to Deed of Company Arrangement) v Certain Underwriters at Lloyd's London Subscribing to Policy Number B0507N16FA15350 (No 2) [2021] FCA 327

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CITATION:	Towry Law v Chubb Insurance [2008] NSWSC 1352
HEARING DATE(S):	15/09/08, 16/09/08, 17/09/08, 18/09/08, 19/09/08, 22/09/08, 23/09/08, 24/09/08, 25/09/08, 1/10/08, 2/10/08, 3/10/08
JUDGMENT DATE :	19 December 2008
JUDGMENT OF:	McDougall J at 1
DECISION:	See paras [245] to [246] of the judgment.
CATCHWORDS:	INSURANCE - Insurance contract - construction and interpretation - objective intention of the parties - contract must be considered as a whole. - EQUITY - Equitable remedies - mistake - rectification - common contractual intention. - EQUITY - Conventional estoppel - adoption of mutual assumption - inducement of assumption - reliance - detriment - whether parol evidence rules excludes evidence of pre-contractual negotiations in proving conventional estoppel.
LEGISLATION CITED:	Evidence Act 1995 Insurance Contracts Act 1984 (Cth)
CASES CITED:	Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267 Coghlan v SH Lock (Australia) Ltd (1985) 4 NSWLR 158 Commissioner of Stamp Duties NSW v Carlenka Pty Ltd (1995) 41 NSWLR 329 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2006] QCA 194 Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No.4) [2006] NSWSC 90 Johnson Matthey Ltd v AC Rochester Overseas Corporation (1990) 23 NSWLR 190 Kaye Lokumal & Sons (London) Ltd v Lotte Shipping Co Pty Ltd (the “August Leonhardt”) [1985] 2 Lloyds LR 28 MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 Moratic Pty Ltd v Gordon (2007) Australian Contract Reports 90-255 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 461 – 462 [22] Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Thompson v Palmer (1933) 49 CLR 507 Touche Ross and Co v Baker [1992] 2 Lloyds Rep [207] Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530
TEXTS CITED:	Australian Oxford Dictionary (second edition, 2004) Estoppel by Conduct and Election (Thompson Sweet and Maxwell, 2006)
PARTIES:	Towry Law PLC (Plaintiff) UKFP (Asia) HK Limited (Second Plaintiff) Henderson Group PLC (Third Plaintiff) Chubb Insurance Company of Europe SA (First Defendant) CNA Insurance Company Ltd (Second Defendant) ACE European Group Ltd (Third Defendant) Zurich Specialties London Ltd (Fourth Defendant) Great Lakes Reinsurance (UK) PLC (Fifth Defendant) St Paul Travelers Casualty & Surety Company of Europe Ltd (Sixth Defendant) New Hampshire Insurance Company (Seventh Defendant) Bestpark International Ltd (Eighth Defendant) The Underwriter Insurance Company Ltd (Ninth Defendant) Wurttembergische Versicherung AG (Tenth Defendant) Assicurazioni Generali Spa (Eleventh Defendant) Newline Corporate Name Ltd (Twelfth Defendant) Oak Dedicated Ltd (Thirteen Defendant) Jago Capital Ltd (Fourteenth Defendant) Catlin Syndicate Ltd (on its own behalf and representing all members of Lloyd's syndicate 1003) (Fifteenth Defendant) Catlin Syndicate Ltd (on its own behalf and representing all members of Lloyd's Syndicate 2003) (Sixteenth Defendant) RG Wasey (on his own behalf and in a representative capacity on behalf of Lloyd's Syndicate 1047)(Seventeenth Defendant) Camperdown UK Ltd (Eighteenth Defendant) Limit (No.3) Ltd (Nineteenth Defendant) Amlin Corporate Member Ltd (on its own behalf and representing all members of Lloyd's Syndicate 2001) (Twentieth Defendant) SVB Syndicates Ltd (in a representative capacity on behalf of all members of Lloyd's Syndicate 1241) (Twenty First Defendant) SVB Syndicate Ltd (in a representative capacity on behalf of all members of Lloyd's Syndicate 1007) (Twenty-Second Defendant) ACE Underwriting Agencies Ltd (in a representative capacity on behalf of all members of Lloyds Syndicate 2488) (Twenty-Third Defendant) Mark John Harrington (on his own and representing all members of Lloyd's Syndicate 0079) (Twenty-Fourth Defendant) Liberty Syndicate Management Ltd (on behalf of all members of Lloyd's Syndicate 0190) (Twenty-Fifth Defendant) Dornoch Ltd (on its own and in a representative capacity of all members of Lloyd's Syndicate 1209) (Twenty-Sixth Defendant) Old Faithful Underwriting (on its own behalf and representing all members of Lloyd's Syndicate 861) (Twenty-Seventh Defendant)
FILE NUMBER(S):	SC 50183/05
COUNSEL:	M A Pembroke SC / T M Mehigan (Plaintiffs) A J Meagher SC / R J H Darke SC / G K J Rich (Defendants)
SOLICITORS:	Allens Arthur Robinson (Plaintiffs) Deacons Lawyers (Defendants)