Michael Kent KC

Insurance & Reinsurance

Michael regularly advises policy wording disputes for both claimants and insurers. He was active in litigation concerning long-tail disease claims and the allocation of risk and liability between insurer and insured in cases of insurance gaps. He was also been heavily involved in the “Cape Litigation” which included issues relating to subrogated claims against a co-insured and avoidance for material non-disclosure of developing knowledge of mesothelioma risks; he had a watching brief in the reference to the Supreme Court of the validity of the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill ([2015] UKSC 3) in which the Supreme Court struck down a bill seeking to impose liability on insurers for NHS costs of treating asbestos disease; he appeared for the ABI as intervener in the Supreme Court in the IEGL v Zurich litigation;  he has advised generally on issues arising under the Human Rights Act in relation to retrospective legislation affecting liability insurers. Recent work includes:

• Acting for long tail liability insurer and reinsurer challenging the government’s interpretation and application of the Social Security (Recovery of Benefits) Act 1997
• Acting for liability insurer on scope and effect of rule that  time stops running for limitation purposes between  a  resolution to wind up an insured company and its restoration to the register;
• Acting for tariff EL insurer at trial of avoidance issue: whether a 1964 endorsement adding an insured to an existing policy was induced by material non-disclosure; whether adverse inferences could be drawn from absence of evidence from underwriters; whether endorsement could be set aside leaving policy otherwise in force in relation to co-insured; issues of affirmation and waiver. [Note proceedings settled after trial and before judgment]
• Acting for claimants in subrogated claims under an asset sale agreement against parent company of claimant; meaning of endorsement relating to parent company’s addition as an “insured”; whether retrospective effect; if parent a co-insured what, if any, claim could be pursued in respect of periods before and after defendant became co-insured; existence and scope of implied term of sale agreement alternatively of the contract of insurance precluding subrogated claims; whether there could be apportionment in relation to “straddling” cases.
• Instructed by ABI as Intervener in Supreme Court- EL insurance, asbestos risks; uninsured periods; Mesothelioma; Compensation Act; Equitable contribution by insured; Defence costs; Subrogation.
• Acting for liability insurers facing claim under the Third Party (Rights Against Insurers) Act 1930; extent of pollution or contamination exclusion; non-party costs order under s 51(3) Senior Courts Act 1981.

Selected Cases

• Aviva Insurance Limited & Swiss Reinsurance Company Ltd v Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin) and [2022] EWCA Civ 15; [2022] 1 W.L.R. 2753
• Holmes v S&B  Concrete Ltd [2020] EWHC 2277 (QB)
• Cape Intermediate Holdings Ltd v Aviva Plc (trial 2017 before Picken J: settled before judgment)
• Cape Distribution Ltd v Cape Intermediate Holdings Ltd (no 2) [2016] EWHC 1786 (QB); [2017] Lloyd’s Rep. I.R. 1
• Cape Distribution Ltd v Cape Intermediate Holdings Ltd (no 1) [2016] EWHC 1119 (QB); [2016] Lloyd’s Rep. I.R. 499
• International Energy Group Ltd v Zurich Insurance plc UK Branch (Association of British Insurers and another intervening) [2015] UKSC 33; [2016] A.C. 509
• Legg & Ors v Sterte Garage Ltd and Aviva Plc [2016] EWCA Civ 97; [2016] 2 Costs L.O. 167

Civil/Insurance Fraud

He regularly acts for claimants and defendants in a range of complex matters,
including catastrophic and psychiatric injury claims as well as claims in Nuisance
and for malicious prosecution.

Selected Cases

Those involving alleged fabrication or exaggeration include:

• Various Claimants v Catholic Child Welfare Society [2016] EWHC 3334, 5, 6 and 7 (QB); [2017] EWHC 1 (QB); [2017] E.L.R. 136 MK acted for the Defendants in a group action by 250 former residents of an approved school alleging historic physical and sexual abuse where all lead claimants’ claims failed partly due to doubt being cast on the honesty and credibility of allegations made. There were questions about the claimants’ solicitors’ procedures for recruiting claimants by advertising within prisons and the resultant risk of cross-contamination of claimants’ accounts;
• Saunderson v Sonae Industria (UK) Ltd [2015] EWHC 2264 (QB) MK acted for Defendants in a group action (some 16,000 plus claimants) seeking damages for alleged effects of smoke and toxic emissions from factory fire in a suburb of Liverpool which burned for two weeks. 20 test claims were tried and all failed, in part on the basis that there was signifcant and serious fabrication or exaggeration of symptoms and consequences, generated by claims handlers and solicitors setting up pop-up shops, cold calling potential claimants and using forms of questionnaires asking leading questions. The judge held that this had given rise to a “vortex of suggestibility” which had led to false cases being advanced. Some questionnaires apparently signed by individual claimants were held to be forgeries. The court was very critical of the practices adopted by claimants’ solicitors’ forms two of whom were reported to the SRA;
• Bhandal v Revenue and Customs Commissioners [2015] EWHC 538 (Admin); [2015] Lloyd’s Rep. F.C. 343 MK acted for HMRC in resisting a claim (at one point put at over £1 billion) for alleged misconduct in obtaining and enforcing a worldwide restraint order. The claim was dismissed on a number of grounds including a finding of fact by the trial judge (who declared himself satisfied to the criminal standard) that the claimant had been involved in massive VAT diversion fraud. The Claimant said he had been earning some £23 million pa from commission on honest transactions but the judge found ample evidence that these sums were criminal proceeds passed through a Jersey money launderer to purchase the assets that were frozen.

News

• The material contribution test and indivisible injury
• The Legal 500 UK Bar Awards 2022 Nominations

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Articles

• A cautionary tale- the importance of an expert witness remaining independent
• Michael Kent KC reviews the Supreme Court judgments of Barclays Bank Plc & WM Morrison Supermarkets Plc

Qualifications

• Inns of Court School of Law (1973 – 1975)
• BA (Hons) Politics, University of Sussex (1970 – 1973)
• Nautical College, Pangbourne (1965 – 1969)
• Recorder of the Crown Court
• Deputy High Court Judge (Queen’s Bench Division and Administrative Court).
• He is a Bencher of the Middle Temple

Memberships

• London Common Law and Commercial Bar Association (Chairman 2011-13)
• Administrative Law Bar Association
• Tecbar
• Chairman of working group on expert witnesses for Inns of Court College of Advocacy (2018)