CORPORATE INSURANCE TRENDS 2015 LOOKING INTO THE FUTURE OF CYBER INSURANCE CAUSATION AND RELIANCE IN AUSTRALIAN SHAREHOLDER CLASS ACTIONS TRENDS IN MASS TORT LITIGATION AND NATURAL DISASTERS AUSTRALIA’S NEXT TOP MODEL LAW REGULATION OF LITIGATION funding DISASTER RISK REDUCTION AND CLIMATE CHANGE ADAPTATION PENALTIES AND INSURANCE PROFESSIONAL LIABILITY ON A KNIFE’S EDGE: CAPPING YOUR LIABILITY Contents LOOKING INTO THE FUTURE OF CYBER INSURANCE 05 in the future, cyber insurance will be as common as any other type of insurance CAUSATION AND RELIANCE IN AUSTRALIAN SHAREHOLDER CLASS ACTIONS 08 Is there a storm brewing, or do we just need a bex & a lie down? TRENDS IN MASS TORT LITIGATION AND NATURAL DISASTERS 10 A focus on Asia Pacific AUSTRALIA’S NEXT TOP MODEL LAW 12 Courts bound to enforce arbitration agreements REGULATION OF Litigation Funding 14 Remains elusive DISASTER RISK REDUCTION AND CLIMATE CHANGE ADAPTATION 15 Is insurance the key? PENALTIES AND INSURANCE 17 Where the only certainty, is uncertainty (for now) PROFESSIONAL LIABILITY ON A KNIFE’S EDGE: CAPPING YOUR LIABILITY 19 The power and pain of capped liability schemes KEY INSURANCE CONTACTS 21 02 | DLA Piper – Corporate Insurance Trends 2015 OVERVIEW Over the last 12 months, the insurance industry has seen speculation with respect to litigation funding regulation, resolutions of large class actions and consolidation in the form of acquisitions in the industry. There has been significant activity in the industry. In this publication we have examined some of the trends and key issues that have arisen and are excited to bring you a collection of articles addressing what we have observed and what we believe lies ahead. Our cyber team experts have considered the real and continuing risks associated with cyber breaches and the industry’s response to those risks. The message continues to be that breaches are inevitable so organisations need to prepare. Cyber risk continues to present great opportunities for the industry. One of the continuing hot issues is the role of litigation funding and class actions. These matters are discussed in the context of regulatory changes, the impact of natural disasters and the resolution of some of the largest class actions in Australian history. We also address capped liability for professionals and how it is operating since its introduction, along with issues concerning the role of insurance in the imposition of penalties. Finally, we look at the Court’s response to the tension between arbitration and litigation. We are Australian insurance law experts, operating one of the largest insurance practices in Australia. We have access to the resources of the world’s largest business law firm, a firm with a focus on the insurance sector. In our areas of expertise, no one will have the knowledge or resources to be better. www.insuranceflashlight.com | 03 dla piper CONTRIBUTORS The Corporate Insurance Trends 2015 publication would not be possible without the following DLA Piper contributors: Allan Flick, Solicitor, Sydney Ashleigh Cowper, Solicitor, Sydney Benjamin Hine, Solicitor, Melbourne Cian Horner, Solicitor, Brisbane Heidi Edwards, Solicitor, Melbourne David Leggatt, Partner, Melbourne Gitanjali Bajaj, Partner, Sydney Jacques Jacobs, Partner, Sydney Kieran O’Brien, Partner, Melbourne Peter Jones, Partner, Sydney Samantha Kelly, Partner, Sydney Sophie Devitt, Partner, Brisbane Belinda Randall, Special Counsel, Melbourne Carmen Elder, Senior Associate, Sydney James Morse, Senior Associate, Sydney Natasha Stojanovich, Senior Associate, Melbourne Nicholas Boyle, Senior Associate, Sydney Nitesh Patel, Senior Associate, Sydney Solicitors Partners Senior Associates/Special Counsel 04 | DLA Piper – Corporate Insurance Trends 2015 The role of mandatory breach notifications and worldwide complications Recent surveys and reports regarding the growth in the uptake of cyber insurance policies, particularly in the United States of America (United States), support the notion that mandatory data breach notification legislation is a catalyst for an increased uptake of cyber insurance policies. Indeed, there can be little doubt that the requirement to notify breaches has necessarily increased the exposure that data breach incidents have received. It is arguable that without mandatory breach notifications, the massive data breaches experienced by Sony, Adobe, Target, Anthem and many other companies would not have become widely known until long after the breach occurred, if ever. Australia has seen a number of false starts regarding the introduction of mandatory breach notifications. As a result, many breach incidents continue to go unreported until well after they have occurred (in one case some three years after). But we see it as simply a matter of time before mandatory breach notification legislation is introduced in Australia, most likely later this year. However, there is a growing perception that mandatory breach notifications may not be the panacea for the exposure of cyberattacks and data breach incidents that it first appears to be. There are concerns, primarily coming from the US where mandatory breach notifications were first introduced, that the influx of breach notifications may desensitise society to the impact of all but the largest breach incidents. Smaller notifications may be lost as background noise in the face of larger breach notifications. A problem we see with this reasoning is that it inherently requires that society first have a sufficient understanding of cyber risk before it can be desensitised to the risk. We therefore do not see this as having any material impact on the application or uptake of cyber insurance policies or the rate of claims, since people will be able to quickly and easily search notifications that affect them (if they are not personally notified). Of far greater concern is the increasingly complex and differing notification regimes being implemented worldwide. In our experience, breach incidents often involve the data of entities from multiple jurisdictions. Identifying the jurisdictions and relevant breach notification laws as soon as possible after a breach incident is critical given the diversity of requirements imposed by notification laws across the world. From our experience, notification requirements across the globe can differ significantly for even a relatively minor breach, with regulations in some jurisdictions stipulating that a minor breach amounts to criminal conduct, whereas no action may be required in other jurisdictions. The deadlines by which a breach needs to be notified also tend to vary by jurisdiction. Cyber security has an inherently global dimension and the jurisdictions in which a company may face exposure is an often overlooked risk that companies do not properly consider. In fact, a 2015 Cyber Impact Report revealed that only 24 percent of respondents are fully aware of the consequences that could result from a data breach or security exploit in countries other than those in which their company operates. We expect that the complexity and diversity of breach notification requirements across the world will only increase in the next five years. Indeed, breach notification requirements in the United States itself will likely become more complex in the near future on account of the anticipated introduction of Federal notification laws in addition to pre-existing state laws. It is and will increasingly be a major cost for insurers and insureds. We cannot see there being any unification of breach notification laws across many countries in the near or long term future. Given the attention that cyber-attacks, data breaches and cyber insurance have been recently receiving (particularly in the past year), the proposition above seems to carry a lot of weight. But what changes will take place to facilitate the proliferation of cyber insurance? How will the growth of cyber insurance impact the market? How will the market change and how do we handle any fallout? We provide our insights as to the future of cyber insurance. LOOKING INTO THE FUTURE OF CYBER INSURANCE In the future, cyber insurance will be as common as any other type of insurance By Nitesh Patel, Senior Associate and Nicholas Boyle, Senior Associate (Sydney) www.insuranceflashlight.com | 05 Cyber insurance as a standalone product and rapid response Insurers are taking steps to ensure that cyber related risk is excluded from policies which were never designed to cover such risks. For example, in our experience insurers are refining management liability policies to exclude cyber related incidents they were not designed to cover. Claims relating to electronic records and data are also being excluded from general liability policies. Coinciding with this is the growth in specific cyber cover extensions for these policies which were (as opposed to stand-alone cyber policies). These products fit a current market demographic of insureds who are not yet willing to purchase a stand-alone cyber insurance product. However, cyber cover extensions generally have more limitations compared to stand-alone products. This can include limiting the range of potential attacks covered, providing low policy sub-limits, or often limiting the heads/classes of loss as compared to a standalone policy – as the types of losses arising from a cyber-attack are very broad. In addition, many stand-alone cyber policies provide a rapid response cover. The protection afforded by rapid response comes into play as soon as a cyber-attack has been identified. In our experience, rapid response cover can play a pivotal role in controlling the fallout from an attack and also limit the financial and reputational damage by controlling what happens in the first 48 hours after a company has identified it is under a cyber-attack. The decisions made on how to deal with an attack at this time will impact how the matter will be handled going forward. This includes the protection of sensitive communications, how best to address the attack itself from an IT perspective (a brute force approach is often not the best approach) and the extent of notifications that need to be made (including the number of jurisdictions involved as raised previously). In this respect, not all cyber-attacks result in a data breach incident (a common misconception). We expect that over time businesses will prefer the protection and breadth of cover afforded by stand-alone products as opposed to choosing a cyber cover extension to existing policies. However, this will depend on how these policies evolve to respond to cyber risks. Management liability policies, in particular, have proved to be very flexible and dynamic in terms of how they can respond to a variety of quite different risks. What will become standard in cyber policies, whether standalone or by way of extension, is the inclusion of access to a rapid response team. This will benefit both the insurers and the insureds, including by limiting the extent of potential losses while preserving the information relating to the incident itself. Ultimately, insurers may be far better placed to formulate an expert rapid response team than an insured. Most businesses will ideally have very few instances where they require a rapid response team, whereas it is of significant benefit to an insurer to have an expert team (or teams) handling cyber claims in a consistent manner for all their clients. Standardised Protection Regimes An impediment to the uptake of cyber insurance for potential insureds is the difficulties and complex task of collating information reflecting the extent of their cyber exposure. Many potential insureds are not aware of the extent of their cyber risk. To that end, we are already witnessing increasing legislative pressure on businesses to take “reasonable steps” to ensure that their data and systems are secure. But we can foresee legislation stipulating in further detail a minimum level of protection that is required (beyond simply the requirement to take reasonable steps). There is, of course, no such thing as a fool-proof system invulnerable to a cyber-attack. However, we expect to see the introduction of cyber security “packages” that will attempt to standardise a number of key elements to developing cyber resilience, including data retention, handling and cyber-attack policies, a gamut of IT systems security measures and physical security measures. An insured will be able to purchase or adopt a standardised level of cyber resilience by purchasing and adapting one of these cyber security “packages”. There are a number of forces that will drive these changes, including the aforementioned legislative amendments requiring greater standards of security, IT security entrepreneurs who identify the opportunity to provide such a service and the insurance industry itself as it develops ways to penetrate but also reform the cyber market. For example, we expect insurers will implement cyber specific loss minimisation clauses, which may exclude cover for losses arising out of a failure to patch vulnerabilities within a reasonable time. While some policies have attempted to do this already, our experience suggests there is room for improvement. The potential benefits of standardised security packages are numerous, including higher minimum security levels, faster patching of vulnerabilities, simplification of pricing cyber risk for insurers, a reduction in cyber policy premiums (based on improved base level security) and increased accessibility and uptake of cyber policies. A change in the nature of attacks, a change to the nature of claims An uptake of standardised security packages may in turn impact the trends and style of cyber-attacks. In other words, cyber attackers will continue to tailor their attacks to changes in business systems to cause maximum damage. The current environment stems from the lack of attention that cyber security has received prior to the last few years. This has led to a volume of wide and varied vulnerabilities across many systems as businesses struggle with making their systems more resilient. The resultant nature of cyber-attacks have been wide and varied, including ransomware, distributed denial of service, watering hole, remote access, phishing and malware attacks. 06 | DLA Piper – Corporate Insurance Trends 2015 When the uptake of standardised security packages reaches a critical mass over the next six to eight years, we expect cyber attackers will focus their attention on identifying and attacking vulnerabilities within those packages so that they maximise the potential number of targets susceptible to their “handy work”. An example of what may be to come is the exploitation of the Heartbleed vulnerability (which impacted systems that used OpenSSL) that came to light in April 2014. The vulnerability was exploited en masse within hours of its release, before a fix had been developed or could be applied. However, it is likely that the response times to address vulnerabilities may be improved significantly in the future (due in part to insuring policies excluding losses due to tardy patching of vulnerabilities), which will narrow the time in which a vulnerability can be exploited. Contrast this with Heartbleed, where one year after its release, approximately 84% of Australian businesses had yet to fully address the vulnerability. Class Actions and the evolution of the Court Process The nature of cyber-attacks and data breach incidents are such that they impinge on records affecting thousands of people (or more). Unsurprisingly, this has given rise to class actions arising from data breach incidents. To date these class actions, commenced mainly in the United States, have faced a number of hurdles. However, class actions have shown an ability to adapt and overcome obstacles as they arise. This was most recently demonstrated in the landmark decision by the US 7th Circuit Court of Appeal in the Neiman Marcus case. The Court ruled that, contrary to a number of decisions in the US Federal District Courts, the fear of future harm from a data breach incident is sufficient to establish standing to sue and that actual harm need not have been already suffered. In making the ruling the Court reinstated the class action. The decision is, and will no doubt continue to be, the subject of much debate. However, even before the decision, class actions began to adapt. To attempt to show sufficient standing, class action lawyers successfully started suing in the name of lead plaintiffs who suffered an actual harm. There will be other barriers that data breach class actions will face, including grappling with the fallout from the US Supreme Court decision in the Halliburton class action and its implications on class certification. However, we expect they will ultimately be overcome. The Neiman Marcus decision is another step towards the inevitable path of successful class actions. We expect the first successful action to occur in the next 6 years. Spurred by the successes and the overcoming of hurdles, we expect to see an increase in the volume of class actions arising from data breaches in that time, including in Australia. One question arising is, how will the Australian court system handle the load of class actions, particularly given the intensive manner in which the actions need to be managed? The court system too has shown an ability to adapt with the times (albeit at a slower pace). The Federal Court recently adapted its docket system to introduce a Commercial and Corporations National Practice Area to manage the influx of commercial and corporations related cases. The NSW Supreme Court introduced the Technology and Construction List to better manage such cases. We see no reason that the Courts will not create a dedicated List to manage data breach related class actions. The List will also have with it a practice note of rules to address the specific issues that come with managing a class action. A window into the world to come The risk of cyber-attacks and data breaches are here to stay for the long term and the same can be said for cyber insurance. The world is trying to catch up with this relatively new breed of risks that it faces. There is rapid progress being made right now and with it will come a significant change in the future. Our insights above into the future raise just a few of many matters that we and many others look forward to confronting in the cyber insurance space. KEY CONTACTs Jacques Jacobs Partner T +61 2 9286 8284 firstname.lastname@example.org Peter Jones Partner T +61 2 9286 8356 email@example.com www.insuranceflashlight.com | 07 There will always be claims arising from large, targeted attacks on high profile businesses. However, cyber claims generally may now arise from a single vulnerability being exploited within a short period of time against a number of exposed businesses. The losses that arise from these claims may reduce over time due to the expected increased base cyber security. Recently, however, speculation (and some trepidation) has been building that change is looming and that we are inevitably heading to an American style “fraud on the market” basis for proving causation. This speculation has arisen from a combination of recent judicial commentary and subsequent debate amongst stakeholders in the Australian class action ‘industry’. But is this speculation warranted? Of particular recent note is the March 2015 Federal Court decision of Grant-Taylor v Babcock & Brown Limited (In Liquidation), where Justice Perram weighed into the debate about causation and proof of loss in these actions. Notwithstanding the emphatic dismissal of the plaintiffs’ claim that the company had failed to disclose certain material information, Justice Perram made obiter comments on questions of causation in cases involving alleged non-disclosure of price sensitive information (even though this issue did not arise, given the plaintiffs’ failure to prove any relevant nondisclosure). Specifically, although His Honour accepted that generally a plaintiff must show in a misleading conduct case that they would have acted in a particular way but for the conduct, he considered that it is ‘artificial’ to speak of reliance in market non-disclosure cases. Further, that whist reliance is a sufficient condition of establishing causation it is not a necessary one. The high watermark of Justice Perram’s comments was his acceptance that a party who acquires shares on a stock exchange can recover compensation for price inflation arising from a failure to disclose material required by s674 of the Corporations Act, so long as they are not themselves aware of the non-disclosed material. It has been suggested that Justice Perram’s analysis (whilst not binding) lends support to plaintiffs in shareholder class actions being able to rely on an “indirect causation” to prove their loss (and to circumvent the evidential burden of proving reliance by each class member). This approach to causation is favoured by plaintiff law firms (who often plead indirect causation on behalf of group members) and litigation funders. Plaintiffs in American shareholder class actions have relied on a “fraud on the market” presumption of reliance since the 1988 seminal case of Basic Inc. v Levinson. Members of the class do not need to prove that they individually relied upon incorrect information – it is assumed that the market reacts to and relies on misinformation about a financial security. The United States Supreme Court considered the issue in the 2014 Halliburton case, and left intact the “fraud on the market” presumption of reliance (but introduced procedural amendments to allow the presumption to be rebutted at the pre-certification stage of a class action). The application of the “fraud on the market” presumption may have certain limitations, as demonstrated by the recent (and ongoing) Vivendi securities fraud class action in the United States. In that case, Vivendi argued that certain class investors could not CAUSATION AND RELIANCE IN AUSTRALIAN SHAREHOLDER CLASS ACTIONS IS THERE A STORM BREWING, OR DO WE JUST NEED A BEX & A LIE DOWN? By Belinda Randall, Special Counsel (Melbourne) and Cian Horner, Solicitor (Brisbane) The challenge of proving causation and reliance in shareholder class actions has been an entrenched feature of securities litigation in Australia (although securities class actions have traditionally been settled before this issue is determined). Shareholder plaintiffs are typically required to prove their respective decisions to buy shares in a company were causally connected to any alleged non-disclosures. That is, to prove something about their decision to purchase the shares, as opposed to merely relying on a general submission that the price at which they purchased their shares was inflated as a result of non-disclosures by the company. 08 | DLA Piper – Corporate Insurance Trends 2015 recover for “fraud on the market”, because they had actively sought the stocks in the company they believed the market had undervalued. Those investors could not then later turn around and claim that they had been defrauded for the same reason that they considered the price to have been artificially low. The Court’s finding on these arguments is pending. It can hardly be said that the Grant-Taylor v Babcock & Brown Limited judgment represents a further step by Australian Courts towards market-based causation, similar to the “fraud on the market” doctrine, which exists in the United States. Having regard to the totality of the judgment (representing a comprehensive loss for the plaintiffs), the specific facts and the highly qualified nature of Justice Perram’s comments (he made it clear that it was unnecessary for him to reach a view on causation), in our view there can be no real suggestion that the causation landscape in shareholder actions has changed. In the absence of legislative intervention we believe it is unlikely that “fraud on the market” theory will ever apply here, as on one view it displaces how causation is established in a statutory cause of action (which shareholder class actions are necessarily founded upon). Nevertheless, it can be expected that plaintiff class action lawyers (and funders) will continue to press for early lucrative settlements on the basis that the approach to causation is ripe for testing by the Courts. A close watch will need to be kept on other shareholder claims to see whether the existing law in securities actions will be subject to change. A number of Australian interlocutory level decisions in the months preceding Grant-Taylor v Babcock & Brown Limited, such as Caason Investments Pty Limited v Cao (Federal Court) and Camping Warehouse v Downer (Victorian Supreme Court) have indicated some support of an indirect causation theory to enable plaintiffs to satisfy the requirement for proof of causation and reliance in shareholder claims for misleading conduct. However, speculation about an imminent change to causation principles in Australian securities class actions to reflect “fraud on the market” or “indirect causation” theories is not warranted. Nor, for that matter, are predictions that the path is being paved for a proliferation of successful shareholder class actions due to relaxed causation requirements. However, D&O insurers operating in the Australian market will need to closely monitor any further judicial commentary on causation and reliance issues and (to the extent the current obiter comments translate into a revised approach to determining causation), be in a position to respond to any increased liability risks that may arise. KEY CONTACTs Toby Barrie Partner T +61 8 6467 6029 firstname.lastname@example.org David Leggatt Partner T +61 3 9274 5473 email@example.com Jacques Jacobs Partner T +61 2 9286 8284 firstname.lastname@example.org Kieran O’Brien Partner T +61 3 9274 5912 email@example.com www.insuranceflashlight.com | 09 In addition to the human toll, the economic impact of such disasters, particularly in our region, has been and will continue to be significant. Of the top three most costly insurance losses over the past 40 years, all have been natural disasters and all in the past 10 years. The increasing frequency of such events raises particular challenges in the Asia Pacific region, and also in the realm of class action litigation. The impact of natural disasters on the insurance industry is significant, particularly for those underwriting property and liability risks. By way of example, in Australia and California, bushfire losses alone have accounted for billions of dollars of compensation payouts in the past 25 years. Of course, where liability can be shifted to other entities (private and public) and/or individuals, property insurers can transfer some of their losses to liability insurers, presenting insurers with unenviable decisions about whether to assume conduct of subrogated claims to mitigate their losses (and passing through property losses to liability insurers). Natural Disaster trends in the Asia Pacific region In 2014, whilst Oceania/Australia was responsible for only 2.1% of total losses for catastrophes (US$2.3 billion), our Asian neighbours shouldered 47% of total global losses for catastrophes, roughly $45 billion of which was uninsured. It is perhaps no coincidence that Asia continues to be an epicentre for population concentration/growth and economic development. Last year saw the top three natural disasters in terms of overall losses all occur in our region (Cyclone Hudhud in India, Winter damage in Japan, and Floods in India/Pakistan). It is often said that it is the vulnerability of a community which converts an ‘event’ into a disaster. In much of Asia, the combination of large densely populated areas and poor regulatory responses to both resilience capacity building (such as building controls and regulation) and disaster management have left our neighbours vulnerable to large scale incidents, with recent experience seeing heavy loss of life, damage to infrastructure and significant uninsured losses. The seeming unpreparedness for the 2004 Boxing Day tsunami is a case in point. The Australian experience has seen a gamut of natural disasters in recent times, including the Black Saturday bushfires, 2011 floods in Queensland and the Brisbane hailstorms of 2014, which collectively saw AU$1.3 billion in losses. TRENDS IN MASS TORT LITIGATION AND NATURAL DISASTERS A FOCUS ON ASIA PACIFIC By Natasha Stojanovich, Senior Associate and Kieran O’Brien, Partner (Melbourne) There is increasing evidence that population expansion, climate change, a higher concentration of people and assets in exposed areas, and interference with natural environments (especially in the pursuit of new forms of energy and resources) are bringing the human race and nature into increasing conflict. As a result, natural disasters and environmentally based events are seemingly becoming more frequent. 10 | DLA Piper – Corporate Insurance Trends 2015 Class action litigation: A focus on bushfires Class action litigation arising from bushfires has been a key trend in the past 5 years, with a spate of class actions arising out of the devastating Black Saturday bushfires in Victoria. Defendant targets of such litigation have included electricity distributors, fire authorities, government at all levels and vegetation management contractors. The magnitude of these claims has been significant. In December 2014, the Supreme Court of Victoria approved the settlement of one bushfire class action for $494 million the biggest settlement in Australian class action history. Whilst plaintiff lawyers and litigation funders continue to push the boundaries of mass tort litigation and its potential targets, both the courts and defence lawyers are also adopting innovative strategies to respond to what is increasingly complex and large scale litigation. The use of technology in particular has a key role to play in expediting processes and delivering cost savings to litigants. Notably in the Kilmore litigation, his Honour Justice Jack Forrest issued an edict banning trolleys and folders of hard copy documents with the aim of running a paper free trial. Research conducted by the Supreme Court of Victoria indicated that the adoption of various technologies saved about one-third of Court time, and this dramatically reduced both the length and cost of the trial. It was nonetheless a staggeringly large piece of litigation, with 40 expert and 60 lay witnesses and 208 sitting days. What does the future hold? The impact of global warming, rising temperatures and increased incidence of drought are predicted to increase bushfire activity and vulnerability to bushfires, particularly in southern Australia. Whilst bushfires have been a naturally occurring phenomenon for countless years, we are still learning about the complex interactions between climate and vegetation (and the added complication of human interference). The fact that highly flammable eucalyptus trees dominate Australia’s South-East (much like southern California) leaves Australia particularly vulnerable. Mostly costly insurance losses (1970 – 2014) 1. Hurricane Katrina (US, Gulf of Mexico, Bahamas), 2005, US$78,638 million 2. Earthquake/tsunami (Japan), 2011, US$36,828 million 3. Hurricane Sandy (US, Caribbean), 2012, US$36,079 million Source: Liberty International Underwriters, World Catastrophes 2014 Report KEY CONTACTs James Berg Partner T +61 2 9286 8193 firstname.lastname@example.org Samantha Kelly Partner T +61 2 9286 8032 email@example.com Kieran O’Brien Partner T +61 3 9274 5912 firstname.lastname@example.org In Australia, we expect continuing class action activity in response to natural disasters like bushfires, cyclones and other phenomena that impact on the community such as coastal erosion and standalone events like the Hazelwood coalmine fire. We expect that the litigation funding regulatory environment to remain unchanged in the immediate future (See our Regulation of Litigation Funding Remains Elusive article on page 14). Whilst part of this rise is due to litigation funders and the attraction of substantial costs recoveries by plaintiff lawyers, the increasing frequency of such natural disasters also makes more activity somewhat inevitable. Aggressive adoption of cutting edge technologies by lawyers and courts is a critical part of ensuring that costs of defending mass tort litigation can be managed effectively. More broadly for the region, whilst the incidence, type and location of natural disasters are inherently difficult to predict (one can only “control the controllables”), progress is being made in both building community resilience to withstand events (e.g. building code restrictions in high bushfire/earthquake prone areas and in coastal areas), and in innovation regarding insurance products, which can assist community resilience to withstand such events and reduce the economic impact on individuals, businesses and governments. In our view, the insurance industry must continue to lobby the Government to ensure that sensible guidelines on post-disaster redevelopment are in place, and that Government is willing to assist in legislation, funding and education around what constitutes sustainable redevelopment that is funded by insurance claims payouts. There is significant potential for insurers willing to drive product innovation in response to natural disasters particularly in the Asia Pacific region, as insurance is a critical component of reducing community vulnerability in this area. www.insuranceflashlight.com | 11 Recent amendments to Australia’s statutory arbitration regime (Commercial Arbitration Acts) significantly reduced the historic tensions between arbitration and litigation by removing the court’s discretion to refuse to refer a dispute to arbitration if requested to do so by a party to a valid arbitration agreement. The Commercial Arbitration Act of each State and Territory (with the exception of the ACT) now incorporates a provision identical to Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) setting out the circumstances in which a court is required to refer a dispute to arbitration. These provisions of the Commercial Arbitration Acts reflect the commercial arbitration statutes in most countries that have adopted the Model Law so that Australian law is now in harmony with most other jurisdictions. Section 8(1) of each State’s Commercial Arbitration Act provides that a court before which an action is brought in a matter which is the subject of an arbitration agreement must, on the request of a party, refer the parties to arbitration unless the arbitration agreement is found to be “null and void, inoperative or incapable of being performed”. Section 8(2) provides that the commencement of litigation in breach of an arbitration agreement is no bar to the commencement or continuation of an arbitration by an innocent party. AUSTRALIA’S NEXT TOP MODEL LAW COURTS BOUND TO ENFORCE ARBITRATION AGREEMENTS By Allan Flick, Solicitor and Gitanjali Bajaj, Partner (Sydney) Apparent tensions between arbitration and litigation in Australia have been largely resolved by recent amendments to Australia’s statutory arbitration regime. These amendments, which follow international best practice, have been upheld by Australian Courts, so that a court must refer a dispute to arbitration if requested to do so by a party to a valid arbitration agreement. This now provides a solid legal foundation for a party to an arbitration agreement to enforce its right to arbitrate knowing that it will not, in most circumstances, be forced to litigate in apparent defiance of a valid arbitration agreement. While these provisions provide parties with comfort that they can, in most circumstances, apply to the courts for an order compelling performance of a valid arbitration agreement, there are a number of key issues to be aware of. 12 | DLA Piper – Corporate Insurance Trends 2015 TIMING OF AN APPLICATION FOR REFERRAL Obtaining an order under section 8 of the Commercial Arbitration Act is conditional on the application to the court being made “not later than when submitting the party’s first statement on the substance of the dispute.” In practice, a party should apply to the court for referral before their first substantive response, and certainly before submitting their statement of defence. Otherwise it stands to lose its right to arbitrate. GROUNDS FOR REFUSAL Although section 8 of the Commercial Arbitration Act provides very little scope for a party to elect to litigate disputes in the court in breach of a valid arbitration agreement, a court is not required to refer parties to arbitration if the agreement is “null and void, inoperative or incapable of being performed”. These are well defined reasons with specific examples in limited circumstances: ■ null and void: an arbitration agreement may be null and void where it is affected by some invalidity from the beginning.1 This would cover internationally recognised defences such as lack of consent due to misrepresentation, duress, fraud or undue influence: Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45. ■ inoperative: an arbitration agreement may be inoperative where it has been waived, repudiated, abandoned or where it contains a time limit that has expired. Parties should exercise care as a delay in commencing proceedings or participation in litigation may render an agreement inoperative. This may also amount to a failure of the statutory condition concerning timing of the application for referral in section 8 of the Commercial Arbitration Act. ■ incapable of being performed: this exception primarily concerns pathological deficiencies in an arbitration agreement that would render it incapable of being performed. This is most common where an agreement includes an equivocation as to whether binding arbitration is intended by the parties. It should be noted that Australian courts will ordinarily seek to give effect to an arbitration agreement despite a minor defect or ambiguity, although this is ultimately a question of fact and degree. STAY OF COURT PROCEEDINGS Section 8 expressly removes the court’s discretion to order a stay in curial proceedings when referring parties to arbitration. However, the preferred approach of Australian courts continues to be to order a stay in proceedings (rather than dismissing the court proceedings altogether) while referring the parties to arbitration. COSTS One matter where Australian courts appear to have departed from international best practice is in the award of indemnity costs for a successful referral application under section 8 of the Commercial Arbitration Act. Countries that have also adopted the Model Law (such as Singapore and Hong Kong) follow the rule established by the English case of A v B  EWHC 54 that a party who has commenced legal proceedings in breach of a valid arbitration agreement should ordinarily be ordered to pay the innocent party’s costs on an indemnity basis (as opposed to ordinary basis) upon referral to arbitration. However, this approach has to date only been followed by the Supreme Court of Western Australia, and has not been followed in the Supreme Courts of Victoria and New South Wales. It may take some time for uniformity to be achieved. KEY TAKEAWAYS Further to the considerations set out in our article in Corporate Insurance Trends 2014 (Arbitrations and underwriting risks), insurers should now note: ■ Australia’s statutory arbitration regime provides a strong legal foundation for the mandatory enforcement of arbitration agreements so that a party’s right to choose arbitration instead of litigation will ordinarily be enforced. ■ Insurers should be aware that their insureds will also be bound by section 8 and will not be able to elect to litigate if they no longer wish to resolve a dispute by arbitration. ■ Parties will be able to protect their right to arbitrate by applying to a court for a referral order under section 8 of the Commercial Arbitration Act. However, parties too will be bound by section 8 and will not be able to elect to litigate if they no longer wish to resolve a dispute by arbitration. KEY CONTACTs Gitanjali Bajaj Partner T +61 2 9286 8440 email@example.com Richard Edwards Partner T +61 8 6467 6244 firstname.lastname@example.org Liam Prescott Partner T +61 7 3246 4169 email@example.com 1 See for example, section 43 of the Insurance Contracts Act 1984 (Cth), which renders any compulsory arbitration agreement contained in a direct insurance contract void, unless both parties agree to submit to arbitration (i.e., a submission agreement for arbitration) after a dispute has arisen. www.insuranceflashlight.com | 13 The Commonwealth government has not yet responded to the Report which was tabled in the Senate on 3 December 2014. Whilst it seems the Attorney-General has an interest in regulating litigation funding demonstrated by the Productivity Commission’s Report, and there has been interesting judicial commentary about litigation funding in the cases of the past year, Without legislative intervention, litigation funding will continue to experience the current increase in competition. When the time does come, any regulation will need to balance (to the extent possible) the interests of all stakeholders and ensure that the litigation funding regime in Australia is sustainable. Continued vigilance of litigation funding (including regulation of class action) will be key. REGULATION OF LITIGATION FUNDING REMAINS ELUSIVE By Belinda Randall, Special Counsel & Benjamin Hine, Solicitor (Melbourne) At present, litigation funders in Australia do not need to be licensed and are largely unregulated, aside from the requirement that litigation funders disclose that a funding arrangement’s in place. The anticipated regulation, depending on the detail (which will inevitably reflect the prevailing political and economic climate), would be likely to guide Australia away from a US type system, regarded by many commentators as beneficial mainly to lawyers. In March this year, Justice Croft of the Supreme Court of Victoria suggested that the current litigation funding framework in Australia requires debate about the role of litigation funders, especially in the context of class actions, and the need for adequate regulation. In an address to the APIG Victorian branch in April 2015, his Honour Justice Murphy of the Federal Court expressed the view that greater regulation of litigation funding was desirable and that the Federal Court was working on a new Practice Note to deal with adequate disclosure by funders and plaintiff law firms to consumers. Their Honours’ comments follow a particularly eventful year in the litigation funding and class actions areas, especially in Victoria. In the last 12 months we have seen the biggest ever class action settlement in Victorian history in the Kilmore East Kinglake bushfire proceeding settlement was reached and approved at almost $500 million (see our Trends in mass Tort Litigation and natural disasters article on page 10-11). Outside of the natural catastrophe context, other major cases involving Great Southern (settlement approved in December 2014 with a Scheme of Arrangement application pending), Willmott Forests (settlement reached in December 2014 with the settlement approval decision pending) and a claim regarding certain unlawful bank fees (involving litigation funders) have also been settled in the past year. Whilst not all of these matters were propelled by litigation funders, the increasing use of class actions as a legal avenue has led to increased scrutiny of litigation funding. The Productivity Commission released a report on Access to Justice Arrangements late last year which considered litigation funding, class actions and litigation funding of class actions. The Report recommends regulation of third party litigation funding by imposing provisioning requirements, requiring separation of the financial interests of solicitors and litigation funders, and increased scrutiny of litigation funding fairness and control. In May 2014 the Attorney General, Senator George Brandis, announced increased regulation of litigation funding. Even though we are still yet to see any substantive legislative developments in relation to this issue, there is continued debate regarding how the sector should be regulated as the impact of litigation funding in recent large scale litigation is felt. we do not think there is enough appetite in the current political climate for any legislative change in the near future. KEY CONTACTs Toby Barrie Partner T +61 8 6467 6029 firstname.lastname@example.org James Berg Partner T +61 2 9286 8193 email@example.com Sophie Devitt Partner T +61 7 3246 4058 firstname.lastname@example.org Samantha Kelly Partner T +61 2 9286 8032 email@example.com 14 | DLA Piper – Corporate Insurance Trends 2015 By Ashleigh Cowper, Solicitor and Samantha Kelly, Partner (Sydney) DISASTER RISK REDUCTION AND CLIMATE CHANGE ADAPTATION IS INSURANCE THE KEY? The Intergovernmental Panel on Climate Change released its publication Climate Change 2014: Impacts, Adaptation, and Vulnerability, Part A: Global and Sectoral Aspects as part of its Fifth Assessment Report last year (IPCC Report). The IPCC Report considered, amongst other things, the implications of climate change on global economic activity and, specifically, the challenges facing the insurance sector. We report on the key findings of the IPCC Report below. The IPCC Report described the insurance sector as a key tool towards global climate change adaptation as the industry “enables recovery, reduces vulnerability and provides knowledge and incentives for reducing risk.” However, as the risks and extreme weather events associated with climate change continue to increase, large scale and high cost claims become more likely. The IPCC Report noted, for example, that global insured weather-related losses had increased by an average of US$1.4 billion each year between 1980-2008. The Australian market presents a multitude of environmental risks, with the average national temperature increasing by 0.9ºC since 1910, with reports that this figure could rise to 5.1ºC by 2090 (see The Climate Institute, Australia’s Financial System and Climate Risk – Discussion Paper, July 2015). The IPCC Report considered that Australia faces a range of extreme weather risks arising from flooding, bushfire, tropical cyclones, hailstorms and thunderstorms. The challenge currently facing the insurance industry in relation to climate change is to find the balance between providing affordable premiums, whilst maintaining an adequate reserve funding pool. The IPCC Report provides that the costs that need to be covered by the insurers include “expected level of losses, expenses for risk assessment, product development, marketing, operating and claims processing.” The range of insurance products that may be impacted by climate change is very broad, and could include, for example, homeowner’s insurance, flood insurance, property and business interruption insurances, agricultural insurances, and liability insurance. Since publication of the IPCC Report, the decision of Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment) was handed down, in which the District Court of The Hague ordered that the Dutch Government limit the volume of annual Dutch greenhouse gas emissions by at least 25% of the 1990 level, by 2020 (Urgenda Case). The Urgenda Foundation, which brought the action on behalf of 900 other parties, was also awarded €13,521.18 in costs (plus statutory interest). In light of the Urgenda Case, insurers should be aware of the risk of potential climate change litigation defence costs and damages coverage that could be captured under liability insurance products, and should be conscious of the same when drafting policy terms. www.insuranceflashlight.com | 15 the strategic placement of geobags. The Northern Australia Insurance Premiums Taskforce will also issue its report to the Government by November 2015, addressing options to reduce the cost of insurance that stems from cyclone risk in Northern Australia. Whilst this includes the potential to establish a mutual cyclone insurer and a cyclone reinsurance pool, the Taskforce is also exploring the option of deploying incentives for insureds to cyclone-proof their insured property. At an international level, we are also seeing the insurance sector fund and establish think-tanks and working groups that are tasked with ensuring adequate risk management data and product innovation is developed to respond to the risks presented by climate change and related weather events. Due to the unique climatic challenges that will likely impact the Australian market, we anticipate that local insurers will adopt a stronger focus in the area of data development, public education as to the risks presented by climate change and steps that can be taken to mitigate the impact of climate disasters, and investment in products that respond to the local effects of climate change. In summary, climate change presents a risk to global economic sectors and services, including the insurance industry, with an increase in the frequency and severity of global extreme weather events. The insurance sector provides a means through which to incentivise good environmental practices, whilst accounting for the cost of large scale environmental risk, before such risks occur, thereby alleviating some of the pressure from individuals, business and governments. In order to ensure that disaster and climate change risk does not become “uninsurable”, the IPCC report suggests that improvements are required in the areas of risk management, product and financial innovation, and policies and regulations. The complete Fifth Assessment Report can be accessed on the Intergovernmental Panel on Climate Change’s website. The IPCC Report suggests several options for insurers to “sustain insurability”, including risk-based premiums to incentivise policyholders to reduce vulnerability; discounts on premiums for demonstrable loss prevention (such as compliance with building codes to mitigate flood damage); and a coordinated effort between governments and insurers (such as sovereign insurance schemes). The IPCC Report notes that insurance uptake may be counteracted, however, if there is an expectation that the government will provide relief in response to climate change induced weather disasters. The insurance industry faces further challenges, in that local legislation and policies incur frequent changes, and consistent, accurate and quality risk and disaster data can be hard to access. The 21st Conference of the Parties to the United Nations Framework Convention on Climate Change will take place in Paris at the end of this year. It is anticipated that the Parties will agree on a new international agreement on the climate, to be implemented post-2020. The issues that will be considered by the agreement will likely include, amongst others, adaptation, mitigation, financial, market (such as a price on carbon) and monitoring and reporting mechanisms. Any commitment made by the Australian Government will shape local policies and regulations, proving greater certainty to industry. Going forward, we envisage that the local Australian insurance sector will play a much more active role in encouraging insured parties to establish mitigation measures aimed at reducing exposure to climate related risk. For example, in relation to areas known to be at greater risk of floods, insurers will likely develop products and sophisticated pricing models that recognise those areas, organisations and individuals that are truly risk prone, and also those that are taking steps to mitigate potential impacts, such as by ensuring that new developments are built higher off the ground, or KEY CONTACTs Samantha Kelly Partner T +61 2 9286 8032 firstname.lastname@example.org Samantha O’Brien Partner T +61 7 3246 4122 email@example.com 16 | DLA Piper – Corporate Insurance Trends 2015 Insurers can and do offer insurance against civil offences and pecuniary penalties. However, increased regulatory action in recent years has raised additional issues and uncertainty for the future. What impact, if any, will the availability of insurance have on sentencing offenders? Is there still room for insurers to be involved in the negotiation and assessment of any appropriate penalties? What about the impact of adverse prosecution costs? It is a well-known principle of insurance that an individual or corporate entity should not be indemnified for criminal conduct. The public policy considerations are clear: there is little to no general or specific deterrence against criminal conduct if a person enters into an agreement (whether by way of insurance or otherwise) to avoid some or all of the consequences of that very conduct. Insurance cover is however available to cover defence costs in relation to both criminal and civil actions. Insurers can also indemnify an insured against civil penalties, such as those that can be awarded under the Corporations Act 2001 (Cth) and the Australian Consumer Law, yet they often do not cover criminal penalties, or where the conduct was reckless, wilful, dishonest or intentional. The impact of the availability and take up of insurance cover is however beginning to have an interesting impact on the imposition and size of civil penalties. In some cases, judges have decided to ignore the presence of insurance, as not being a consideration material to penalty. Yet that has not been a universal approach. We saw the alternative approach in Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor  SAIRC 22, where a company director personally paid the deductible under the company’s insurance policy that provided cover in respect of penalties, and which drew the following comments from the Industrial Magistrate (at ): Penalties and insurance where the only certainty, is uncertainty (for now) By James Morse, Senior Associate (Sydney) In my opinion [the director’s] actions [in paying the deductible] are so contrary to a genuine acceptance of the legal consequences of his criminal offending that they dramatically outweigh the benefits to the justice system of the early guilty plea and statement of remorse. Accordingly it would be entirely inappropriate to grant any reduction of penalty to [the director] or [the insured company] in these circumstances. www.insuranceflashlight.com | 17 As this case demonstrates, a clear consequence of insuring against penalties is that penalties can and will be higher. Going forward, we expect the presence of insurance will weigh more heavily into the debate on penalty. We also expect this will create something of a two-tiered market, where similar conduct will be met with differing penalties, depending on whether there is an insurer standing behind the offender. Naturally, insurers will need to ensure their exposure is accurately rated and appropriately priced. However, the imposition and reporting of larger penalties against offenders is also likely to increase demand for such policies in the first place, thereby creating a commercial opportunity for insurers as well. The terms of the policy in question were not before the Court in Ferro Con, so the Court had no ability to consider if the indemnity provided to the director and the insured company was invalid because it was contrary to public policy. As the presence of insurance becomes a more relevant enquiry in the Courts, we also expect to see increased argument as to whether certain terms or provisions of such insurance policies are indeed contrary to public policy. A further consideration however is whether parties (and their insurers) can be involved in the negotiation and potential agreement of appropriate penalties in civil prosecutions. Cases such as Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 and Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 105 ACSR 403 currently appear to limit or prohibit the making and consideration of submissions as to appropriate penalty, including on an agreed or consensual basis. Yet the Commonwealth of Australia has since appealed the latter decision to the High Court, and special leave has been granted. We expect the matter will be heard later this year. The imposition of a penalty is often but one side of the coin. The issue of prosecution costs in penalty proceedings is an important factor that can give rise to substantial exposure for insurers. Indeed, the Australian Securities and Investments Commission recently announced it would be actively using the power under section 91 of the Australian Securities and Investments Commission Act 2001 (Cth) to recover costs and expenses of its investigations. Historically, ASIC has rarely exercised this power, yet it has now “reviewed its approach and considers that it should more frequently seek to recover the expenses and costs of an investigation from the person who has caused those expenses and costs to be incurred.” While this is obviously concerning news for those involved in ASIC investigations, it is also concerning for insurers who provide cover against such investigation costs. Whilst it remains to be seen how often such orders are made by ASIC, and in what The impact of the availability and take up of insurance cover is beginning to have an interesting impact on the imposition and size of civil penalties, and will continue to do so in the near future. circumstances, we expect it – and other regulators – will actively look to recover costs in prosecution proceedings, in appropriate circumstances. Overall, whilst it is of course healthy for the law to continue to grow and develop in response to new and emerging issues, the current lack of clarity around these issues need to be addressed. The present uncertainty in the industry rests like a Sword of Damocles over various industry participants. Insureds are unable to accurately assess the extent to which they are left personally exposed, which can cause a reluctance to support commercial innovation, or take calculated and entrepreneurial risks. Insurers are also unable to accurately rate and price the risk being offered, creating an inefficient market and potentially exposing insurers to large losses on particular books. We therefore expect to see further development in these areas in the near future, particularly over the next 12 to 18 months. As always, regular updates will be available on www.insuranceflashlight.com. KEY CONTACTs Paul Baxter Partner T +61 7 3246 4093 firstname.lastname@example.org James Berg Partner T +61 2 9286 8193 email@example.com David Leggatt Partner T +61 3 9274 5473 firstname.lastname@example.org Cameron Maclean Partner T +61 8 6467 6013 email@example.com 18 | DLA Piper – Corporate Insurance Trends 2015 PROFESSIONAL LIABILITY ON A KNIFE’S EDGE: CAPPING YOUR LIABILITY the power and pain of capped liability schemes The potential of capped liability schemes is immense. As a professional person, the prospect of being able to cap your exposure to claims from clients at a fixed monetary ceiling, for a modest annual fee, is an attractive one. Imagine upon receiving a claim for $100 million, being able to rely upon a capped liability scheme and draw a line in the sand (of your legal liability) at $2 million, with no prospects of exposure above this. Does it sound too good to be true? The concept really is quite simple. Limitation of civil liability should create a stable market for professional indemnity insurance premiums which will benefit professionals and clients alike. Under such schemes, liability can be limited by reference to mandated minimum insurance standards, available business assets or by reference to a formula involving a multiple of fees charged (or a combination of the three). To apply, it needs to be raised as a defence. However, it will not stop a claimant from bringing a claim in the first place. The policy rationale is that claims are often effectively capped in any event by the availability of assets or insurance to meet any claim, neither of which are limitless. Capped liability schemes started in New South Wales in 1994, and following the 2001 collapse of HIH, a suite of tort law reforms enacted the same legislation throughout Australia. The tort reforms were largely in response to the “insurance crisis” which saw premiums sky-rocket and certain professions become almost uninsurable. Problems Despite operating in Australia since the last 1990s, capped liabilities schemes are a relatively new beast. There have been no reported decisions testing the operation of capped liability schemes in Australia. We also cannot look abroad for guidance, as no other country has comparable legislation. They are a unique Australian invention. Hence, the legislation is untested territory, as is the practical operation and mechanics of the various schemes. In particular, for example: ■ How to calculate the relevant cap by reference to a “multiple of fees”, which is not as straight forward as it may sound. Take for instance an accountancy practice with a very broad retainer for a long-standing client. How do you separate out the relevant fee, or what if the case is about the accountant’s failure to undertake required work? ■ The issue of “one claim” or “the claims.” Given claims are often pleaded on alternate bases, (i.e., contract, tort and statute), does this mean three caps apply, or one? What about class action litigation with the same cause of action, but hundreds of claimants? By David Leggatt, Partner and Natasha Stojanovich, Senior Associate (Melbourne) www.insuranceflashlight.com | 19 There are currently 26 approved capped liability schemes in Australia, composed of: engineers, accountants, lawyers, barristers, valuers and surveyors. Roughly 60,000 professionals are members of capped liability schemes in Australia. Given that capped liability schemes are largely untested, they also present particular challenges for the insurance industry. For instance: ■ For insurers in underwriting risk for professions such as engineers and accountants or auditors, how safe a bet is it that you will actually be able to rely on the cap? With larger claims and risky professions, the difference in potential exposure could be significant. How confident can you be that your insured will comply with Scheme requirements, including their disclosure requirements to their client (which are an essential precondition to being able to rely on a cap by way of defence)? It is important to be aware of whether your insured can rely on a cap and if so, to raise it at the earliest possible opportunity (i.e., it must be pleaded in the defence). ■ For brokers it is important that they are across the minimum insurance requirements, as a failure to have the proper cover in place for their client may jeopardise their client’s ability to rely on the cap as a defence down the track. Brokers should also be careful about warranting or representing that insurance policies will meet a given occupational association’s insurance standards, as getting this wrong could have dramatic consequences. Solutions for the future Whilst there is notionally a coordinated national approach to the operation of capped liability schemes, with mutual recognition in most states, there are still subtle differences between the legislation in each state and territory, and Tasmania operates on a stand-alone basis. This presents particular regulatory compliance challenges for professional service firms operating on a national basis. In order for these schemes to operate seamlessly, there needs to be a truly national approach. The way forward needs to see a coordinated approach between the occupational associations, their insurers, the regulator and consumer groups. It will only be through engagement of affected parties that the professions and the insurance industry can be certain that the caps will apply. Likewise, although capped liability schemes have now been operating in Australia for in excess of 15 years, their enforceability has never been tested in the Courts. The full power and potential of capped liability schemes is unlikely to be fully realised until they are tested in the Courts and operate to successfully cap a professional’s liability. We therefore anticipate a test case will arise in coming years, and it is important that such a test case happens sooner rather than later, to ensure professionals and their insurers can have confidence in the operation of capped liability schemes. A test case will bring more certainty, and highlight either the efficacy of such schemes (obviously the preferred option), or whether legislative reform is required. Either way, it will provide more certainty to consumers, professionals and insurers alike as to if and how such schemes will operate to successfully cap liability. KEY CONTACTs Drew Castley Partner T +61 7 3246 4097 firstname.lastname@example.org David Leggatt Partner T +61 3 9274 5473 email@example.com Lindsay Joyce Partner T +61 2 9286 8273 firstname.lastname@example.org 20 | DLA Piper – Corporate Insurance Trends 2015 KEY INSURANCE CONTACTS Samantha O’Brien Partner T +61 7 3246 4122 email@example.com Paul Baxter Partner T +61 7 3246 4093 firstname.lastname@example.org Drew Castley Partner T +61 7 3246 4097 email@example.com BRISBANE Catherine Power Partner T +61 2 6201 3411 firstname.lastname@example.org canberra David Leggatt Partner T +61 3 9274 5473 email@example.com Kieran O’Brien Partner T +61 3 9274 5912 firstname.lastname@example.org David Randazzo Partner T +61 3 9274 5482 email@example.com Michael Regos Partner T +61 3 9274 5437 firstname.lastname@example.org MELBOURNE joint INSURANCE SECTOR LEADERs – AUSTRALIA Sophie Devitt Partner T +61 7 3246 4058 email@example.com www.insuranceflashlight.com | 21 James Berg Partner T +61 2 9286 8193 firstname.lastname@example.org Jacques Jacobs Partner T +61 2 9286 8284 email@example.com Samantha Kelly Partner T +61 2 9286 8032 firstname.lastname@example.org Lindsay Joyce Partner T +61 2 9286 8273 email@example.com Toby Barrie Partner T +61 8 6467 6029 firstname.lastname@example.org Richard Edwards Partner T +61 8 6467 6244 richard.edwards@ dlapiper.com Mark Williams Partner T +61 8 6467 6015 email@example.com Cameron Maclean Partner T +61 8 6467 6013 cameron.maclean@ dlapiper.com SYDNEY PERTH 22 | DLA Piper – Corporate Insurance Trends 2015 2016 INSURANCE SYMPOSIUM Wednesday 24 February 2016 2.30 pm to 5.30 pm followed by drinks and canapés DLA Piper Sydney For further information, please contact Suzanna Allan on +61 2 9286 8369 or Events.Australia@dlapiper.com The program and official invitation will be distributed in January 2016. SAVE THE DATE www.insuranceflashlight.com | 23 DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at www.dlapiper.com Copyright © 2015 DLA Piper. All rights reserved. | AUG15 | 2977769 www.dlapiper.com If you have finished with this document, please pass it on to other interested parties or recycle it, thank you.