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The impact of Impact Funding –v- AIG on the construction of contracts of insurance

Mark Cannon QC*

The Narrow Issue and the Wider Arguments

On one view the decision of the Supreme Court in Impact Funding Solutions Ltd v Barrington Support Services Ltd (formerly Lawyers at Work Ltd) (AIG Europe Ltd, Third Party) turned upon a question of fact, namely whether a firm of solicitors received a benefit under a contract with a company which lent money to the firm’s clients. If they did, then the solicitors’ professional indemnity insurance could deny cover for the liability of the solicitors for breach of that contract.

The reason why that question came before the Supreme Court and why the decision of the Supreme Court is of some interest is that the parties disagreed as to the correct approach to the construction of the term in the contract which excluded cover.

The Facts in Outline

(…)

By the time the case reached the Court of Appeal the only issue was whether AIG could rely upon sub-clause (ii) of the following term (the exclusion):

“This policy shall not cover loss in connection with any claim or any loss: … arising out of, based upon, or attributable to any : (i) trading or personal debt incurred by an insured, (ii) breach by any insured of terms of any contract or arrangement for the supply to, or use by, any insured of goods or services in the course of providing legal services; and (iii) guarantee, indemnity or undertaking by any insured in connection with the provision of finance, property, assistance or other benefit or advantage directly or indirectly to that insured.”

The exclusion was substantially the same as this provision in the Minimum Terms and Conditions for Professional Indemnity Insurance for Solicitors and Registered European Lawyers in England and Wales 2009 (the Minimum Terms).

The narrow issue between the parties was whether the DFMA was a “contract or arrangement for the supply to, or use by, any insured of … services in the course of providing legal services”. That turned upon the construction of the DFMAs in their context and is not the subject of this paper.

* Use asterix to provide information about the author.

Footnotes in Times New Rome size 10, no spacing, always with a full stop.

*	Queen’s Counsel, Head of Chambers at 4 New Square.

[2016] UKSC 57; [2017] AC 73.

“The insurance must not exclude or limit the liability of the Insurer except to the extent that any claim or related defence costs arise from the matters set out in this clause 6 …

Any: (a) trading or personal debt of any insured; or (b) breach by any insured of the terms of any contract or arrangement for the supply to, or use by, any insured of goods or services in the course of the insured firm's practice; or (c) guarantee, indemnity or undertaking by any particular insured in connection with the provision of finance, property, assistance or other benefit or advantage directly or indirectly to that insured.”

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Miriam Goldby

2020-10-04

Hewlett-Packard Company