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Equitas fails to recover against insurance intermediaries at Lloyd’s

In Equitas Ltd & anor v Sande Investments [2021] EWHC 631 (Comm), Equitas sought to recover (as assignee) from insurance intermediaries at Lloyd’s sums due to syndicates which had been collected by those intermediaries from reinsurers but not remitted.  Equitas sought to bring itself within the scope of the judgment of Males J in Equitas Ltd & anor v Walsham Brothers & Co Ltd [2013] EWHC 3264 (Comm) [2014] Lloyd’s Rep 398, alleging that the insurance intermediary owed a range of obligations: contractual duties, tortious duties and fiduciary duties, as well as being liable in restitution.

The Judge found that the facts of the case were materially different from Walsham, and, on the facts, that the relevant insurance intermediary owed no such obligations.

  1. The claims based upon an implied contract failed, the Judge applying well-known principles. The case provides a good illustration of the requirement that, to establish an implied retainer by conduct, a claimant must show that the parties acted in ways consistent only with there being a retainer.
  2. The claims in tort failed, the Judge applying well-known principles of assumption of responsibility by the alleged tortfeasor and actual reasonable reliance by the alleged victim. The case provides a good illustration of a court declining to use tort to impose obligations which would circumvent the contractual chain of obligations.
  3. The claims based upon fiduciary obligations failed. The case provides a good illustration of the legal point that not all obligations owed by a fiduciary are not fiduciary obligations, and a reminder that an obligation to remit monies is not a fiduciary obligation.
  4. The claims in restitution failed. Since the sums had been collected from insurers, the intermediaries had not received those sums or been enriched “at the expense of” the syndicates.

It was common ground that all the claims were prima facie time-barred. Equitas’s attempts to overcome time bars, relying upon notions of continuing duties and sections 32 and 21(1)(b) of the Limitation Act 1980 also failed.  The judgment provides a useful up-to-date summary of the law relating to those provisions.

Jason Evans-Tovey acted for the 9 successful defendants.

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