Beth Clarke, trainee solicitor at Clyde & Co
Handling claims on behalf of insurers and insureds is an integral part of many practice areas at Clyde & Co. There are requirements within many industries for companies and individuals to maintain certain forms of insurance, and other types of insurance may also be maintained voluntarily. This means that solicitors who work for insurers are involved in a wide variety of work in industries such as aviation, trade, professional services, employment and shipping, to name a few.
More generally, legal insurance work can be broken down into two categories – coverage and defence. Many insurance solicitors will conduct both types of work.
Defence work involves conducting dispute resolution on behalf of insurers when civil proceedings are threatened or brought against an insured party, often for negligence and/or breach of contract.
This can sometimes mean defending an insured in litigation, where the case is ultimately determined by a court, or similarly in an arbitration. Prior to this, solicitors will often be involved in representing the insured in communications and negotiation with the claimant. The aim of these negotiations is to achieve a settlement which is commercially favourable to both the insurers and the insured, preventing the case going to trial. This will sometimes also be managed through alternative dispute resolution procedures, such as mediation.
Solicitors who undertake defence work will often engage a barrister to provide an opinion on the prospects of success. Solicitors may also engage an expert to provide support to the insured’s position. Typical trainee tasks can therefore include drafting instructions to counsel or the expert, along with drafting letters to the other side and the court, bundling, assisting in the preparation of documents such as settlement agreements, and conducting research into specific points of law.
Insurers may also instruct solicitors to consider whether a particular claim notified by an insured is covered under the relevant policy. In these cases, it is necessary to carry out investigations into the factual basis of the claim and determine whether coverage can be established. To do this, solicitors need to consider the policy wording, the facts of the case and any relevant legislation such as the Insurance Act 2015.
Trainees working on new coverage matters may be tasked with reviewing the bundle of documents and preparing a chronology to identify any potential pre-inception issues and to form an initial view on insurers’ liability. Trainees will also frequently conduct research into specific points of fact or law and how this may affect the coverage dispute.
Once fee-earners have considered coverage, they will report their views to insurers and, where appropriate, assist them in declining cover or negotiating a commercial settlement with the insured. It is important for coverage solicitors to understand insurers’ commercial objectives in this context. For example, while it may be possible for an insurer to reject or avoid certain parts of a given claim, it may not be commercially sensible to do so, as it may jeopardise a relationship with an insured from whom it collects considerable premiums. Solicitors must therefore be prepared to advise insurers on both the legal and commercial implications of taking certain coverage decisions.
Finally, as a general point, solicitors working in insurance departments will be involved in ‘reserving’. This means advising insurers on the likely costs of a given claim or course of action to enable them to set aside sufficient funds in advance. While trainees are not usually directly responsible for reserving, they are likely to be exposed to this concept during any insurance seat and will begin to develop an understanding of the costs associated with both defence and coverage work.
Skills required by trainees in insurance
- Organisation: trainees are required to work on multiple matters simultaneously and must learn to balance competing demands and deadlines. Being organised is therefore essential to ensure that this is not overwhelming.
- Commercial awareness: trainees must understand the commercial objectives of both insurers and insureds, along with keeping up to date on how the economic and political spheres may influence the insurance market, or the markets in which insureds operate. This is especially important in response to the Covid-19 pandemic as there have been many events in the past 18 months which have affected both insurers and insureds.
- Attention to detail: trainees must be able to identify important points that may be material to a client’s case when reviewing the factual or legal issues.
- Research and ability to apply the law: trainees must conduct research to a high standard, and should also be able to apply this to the facts of a given case and present their conclusions to more senior fee-earners in a way that shows that they have carefully considered any possible implications for the client.
- Initiative: litigation/dispute resolution in insurance departments is often very fast paced. This means that trainees are often relied upon heavily and must use their initiative to take ownership of certain tasks (where appropriate) to keep the matter moving forward when other fee-earners are busy.
Areas of personal development for trainees in insurance
- Knowledge of litigation procedure: trainees in insurance seats are usually very involved in the pre-litigation and litigation process, including fulfilling the requirements of pre-action protocols, drafting pre-action correspondence, attending case management conferences, and meeting court deadlines. The solid grasp of these procedures which is gained by trainees in insurance departments is transferable to most contentious seats and sets trainees up well for handling their own cases upon qualification.
- Understanding the interests of parties in insurance disputes and learning how to balance them: as noted above, insurers and insureds will often have different commercial objectives in relation to a given claim. For example, an insurer may wish to limit the costs in relation to a claim, whereas the insured may wish to defend it for reputational purposes. Trainees in insurance departments have the benefit of exposure to this, which enables them to develop an understanding of how to manage these objectives and determine case strategy on this basis.
Case studies of the firm’s insurance work
- Representing insurers in the Supreme Court case testing various business interruption policy wordings in light of the Covid-19 pandemic.
- Providing ongoing advice to insurers in relation to business interruption claims.
- Advising insurers on various trade sanctions issues.
- Acting for insurers in test litigation in relation to allegations of commercial fraud by expert witnesses.
Clyde & Co