Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Trends and prospects
What are the current trends in and future prospects for the insurance and reinsurance markets in your jurisdiction?
Similar to other European markets, the Irish market is experiencing a low-yield environment, with constant regulatory change (eg, packaged retail and insurance-based investment products, the EU Insurance Distribution Directive, the General Data Protection Regulation, the Fourth Money Laundering Directive and a stream of new EU Solvency II Directive-related releases), as well as the opportunities and challenges of technology. Further, with Brexit looming, the Central Bank of Ireland has indicated that it has received several Brexit-related applications for authorisation.
What is the primary legislation governing the (re)insurance industry in your jurisdiction?
The European Union (Insurance and Reinsurance) Regulations 2015, which transposed the EU Solvency II Directive into Irish law, govern the authorisation and supervision of (re)insurers and cover capital, governance, risk management, regulatory reporting and public disclosure requirements. (Re)insurers are also subject to the supplementing Solvency II legislation and, in addition to the Solvency II framework, there is a large body of domestic insurance legislation applicable to (re)insurers.
Which government bodies regulate the (re)insurance industry in your jurisdiction and what is the extent of their powers?
The Central Bank of Ireland is the competent authority for both the authorisation and ongoing supervision of (re)insurers. It has extensive powers of investigation of both the business of (re)insurers and of connected persons, as well as powers of intervention where it considers an insurer is or may be unable to meet its liabilities or the required capital requirements. In such cases it can direct the insurer to take appropriate measures. Similar powers of intervention arise in other circumstances, such as failure to comply with insurance legislation or inadequate reinsurance arrangements. In certain cases the Central Bank can also withdraw an authorisation.
Health insurance provision is subject to additional regulation under the framework created by the Health Insurance Acts where the Health Insurance Authority is the regulator.
Daily business may also bring (re)insurers into contact with other relevant Irish national regulatory bodies such as the Competition and Consumer Protection Commission or the Advertising Standards Authority for Ireland.
Ownership and organisational requirements
Ownership of (re)insurers
Are there any restrictions on ownership of or investment in (re)insurers in your jurisdiction, including any limits on foreign ownership/investment?
There are no specific ownership restrictions, but the Central Bank of Ireland does pay particular attention to the direct and indirect ownership structure of applicants for authorisation. It will not grant an authorisation if, taking into account the need to ensure the sound and prudent management of the undertaking, it is not satisfied as to the qualifications of the owner(s). The Central Bank seems to prefer applications where ownership is held by one or more financial institutions or vested in a wide spread of owners. Close links rules also apply.
What regulations, procedures and eligibility criteria govern the transfer of control of/acquisition of a stake in a (re)insurer?
The European Union (Insurance and Reinsurance) Regulations 2015 provide that the Central Bank must be notified in advance of certain acquisitions and disposals of qualifying holdings, both direct and indirect, in (re)insurers. A ‘qualifying holding’ is a direct or indirect holding that represents 10% or more of the capital of, or voting rights in, the (re)insurer, or makes it possible to exercise a significant influence over the management of the (re)insurer.
In the case of acquisitions, a proposed acquirer may not directly or indirectly acquire a qualifying holding without having previously notified the Central Bank of the size of the intended holding, and must provide sufficient information to enable the Central Bank to consider the proposed acquisition. A specific Acquiring Transaction Notification Form is required. A similar process applies where an entity which already holds a qualifying holding seeks to increase the size of its holding so that its holding would either reach or exceed a prescribed percentage level of 20%, 33% or 50%, or so that the undertaking would become its subsidiary.
An acquisition may only be completed where either the Central Bank has notified the proposed acquirer that it does not oppose the proposed acquisition or, by the end of the assessment period, the Central Bank has not notified it of its opposition.
In the case of the disposal of a qualifying holding or the disposal of part of the qualifying holding, where the remaining holding would fall to or below one of the prescribed percentage levels or would be such that the (re)insurer would no longer be a subsidiary of the disposer, there is a prior notification requirement only.
Must (re)insurers adopt a certain legal structure in order to operate? If no mandatory company organisation applies, what are the common structures used?
A (re)insurer must be either authorised by the Central Bank (as a head office or as a third country branch) or have passported in from another EU or European Economic Area member state. To obtain Central Bank authorisation as an Irish head office, the 2015 regulations require a (re)insurer to be a designated activity company (DAC), a public limited company, a company limited by guarantee, an unlimited company or a Societas Europaea, and have its head office and registered office in Ireland.
The most common legal structure for (re)insurers in Ireland is the DAC.
Do any particular corporate governance requirements apply to (re)insurers, including any eligibility criteria for directors and officers?
The Central Bank’s Corporate Governance Requirements for Insurance Undertakings 2015 apply to all insurers authorised by the Central Bank (including reinsurers, but excluding captives). Among other things, the requirements deal with the composition of the board, roles of the chair, CEO, directors (including executive, non-executive and independent non-executive), chief risk officer and other matters, such as the risk appetite, meetings and committees. Additional obligations are placed on (re)insurers deemed to be ‘high impact’ under the Central Bank’s PRISM regime. A separate set of requirements applies to captives.
Directors and other senior officers also fall within the scope of the Central Bank’s Fitness and Probity Regime, under which persons performing a wide range of functions in a (re)insurer are required to possess a level of fitness (ie, competence and capability) and probity (ie, honesty, ethical judgment and integrity, and financial soundness) befitting the relevant role.
Which (re)insurers must obtain authorisation from the regulator before operating on the market and what is the procedure for doing so?
Subject to certain limited exclusions, a (re)insurer may not carry on (re)insurance business in Ireland unless it holds an authorisation granted by either the Central Bank of Ireland or the competent authority in another EU or European Economic Area member state covering the class of insurance or the reinsurance activity.
(Re)Insurers wishing to establish a head office in Ireland must seek the relevant authorisation from the Central Bank by submitting an application. The applicant must first assess whether its proposed business model requires authorisation and is capable of complying with all relevant legal and regulatory requirements. It must then hold a preliminary meeting with the Central Bank to discuss the application, after which it must provide relevant supporting information to the Central Bank. The Central Bank has published checklists appropriate to each type of (re)insurer which set out the information required to support an application. The checklist and all relevant supporting documentation must be submitted to the Central Bank for review and it will assess whether the application is complete. Once a completed application has been received, the Central Bank will review it and issue comments, or request further information or clarification where required. In practice, the timeline for authorisation is between six to 12 months. Before formal authorisation, a successful applicant will be provided with confirmation of authorisation in principle. Formal authorisation is granted after the applicant’s capital has been introduced and when any other remaining requirements are met.
No checklist or guidelines are yet available for authorisation of branches of third-country (re)insurers but are expected over the coming months.
What are the minimum capital and solvency requirements for (re)insurers operating in your jurisdiction?
An undertaking must hold eligible own funds to cover the minimum capital requirement (MCR) which is calculated in accordance with the European Union (Insurance and Reinsurance) Regulations 2015.
For a life insurer (including a captive insurance undertaking), the absolute floor of the MCR is €3.7 million. For a non-life insurer (including a captive insurance undertaking), the absolute floor is €2.5 million, subject to certain exceptions which may increase it to €3.7 million.
For a reinsurer, the absolute floor is €3.6 million, except a captive undertaking for which the absolute floor is €1.2 million.
The (re)insurer must also hold eligible own funds to cover the solvency capital requirement (SCR) in accordance with the 2015 regulations and the MCR should not fall below 25% or exceed 45% of the SCR.
Do any other financial requirements apply?
(Re)Insurers must also establish technical provisions with respect to all insurance and reinsurance obligations towards policyholders and the beneficiaries of insurance contracts in accordance with the 2015 regulations.
Where a (re)insurer fails to do so, the Central Bank can prohibit the free disposal of the assets (after having first communicated such intentions to the supervisory authorities of any member state(s) in which the (re)insurer operates).
Are personnel of (re)insurers subject to any professional qualification requirements?
The Central Bank’s fitness and probity regime requires that persons performing functions, known as controlled functions, must comply with certain standards – for example, to be competent and capable – and requires the person to have the qualifications, experience, competence and capacity appropriate to the relevant function.
Closely linked to the fitness and probity regime is the Minimum Competency Code 2011 which sets out minimum professional standards for persons providing certain financial services, in particular when dealing with consumers.
What rules and requirements govern the business plans of (re)insurers?
There are no specific rules governing business plans of (re)insurers. The application for authorisation process – which includes a requirement for a scheme of operations – instead dictates the nature and content of the information required. The Central Bank has a checklist of what is required which applicants should consider when developing their applications.
What risk management systems and procedures must (re)insurers adopt?
(Re)Insurers must establish and maintain an effective risk management system comprising strategies, processes and reporting procedures necessary to identify, measure, monitor, manage and report continuously the risks, at an individual and aggregated level, to which they are or could be exposed, and their interdependencies. The risk management system must be well integrated into the organisational structure and in the decision making processes of the (re)insurer where the board of directors is ultimately responsible for ensuring the effectiveness of the system, setting the (re)insurer’s risk appetite and overall risk tolerance limits, as well as approving the main risk management strategies and policies.
The risk management system should cover at least the following areas:
- underwriting and reserving risk management;
- operational risk management;
- reinsurance and other risk-mitigation techniques;
- asset liability management;
- investment risk management; and
- liquidity and concentration risk management.
The Own Risk and Solvency Assessment (ORSA) is part of the risk management system.
Reporting and disclosure
What ongoing regulatory reporting and disclosure requirements apply to (re)insurers?
The Solvency II regime introduced increased regulatory reporting and public disclosure requirements. As such, (re)insurers must make a number of filings to the Central Bank including Quarterly Quantitative Reporting Templates, the Annual Quantitative Reporting Templates, the Solvency and Financial Condition Report (annually) and the Regular Supervisory Report (at least every three years). (Re)Insurers are also required to submit the ORSA annually at any time during the year and must submit their financial statements and reports as approved at the annual general meeting.
In addition to the Solvency II requirements, insurers are also required to submit national specific templates.
Do any other operating requirements apply in your jurisdiction?
(Re)Insurers are also subject to general Irish and EU legislative provisions applicable to Irish companies, including company law and legislation covering data protection, employment, health and safety, money laundering and terrorist financing, auditing and taxation.
What are the consequences of non-compliance with the operating requirements applicable to (re)insurers?
Where a (re)insurer does not comply with technical provisions or with the SCR or MCR, the Central Bank has extensive powers of intervention under the 2015 regulations. More generally, under the Central Bank Act 1942, the Central Bank can initiate enforcement action against (re)insurers and their management for contraventions of legal and regulatory requirements which can result in significant fines being imposed (up to €10 million or 10% of turnover for regulated firms).
The Central Bank also has a wide range of:
- more general powers of investigation;
- power to give directions or to impose requirements; or
- to order redress – under the Central Bank (Supervision and Enforcement) Act 2013.
What general rules, requirements and procedures govern the conclusion of (re)insurance contracts in your jurisdiction?
The standard principles of Irish contract law apply to insurance contracts. As a general rule, in order to be enforceable under Irish common law, a contract must contain an offer by one party which is accepted by another and the parties must intend to create a legal relationship between each other. Consideration must pass between the parties and they must enjoy privity of contract.
However, certain peculiarities apply in the case of insurance contracts. For example, the insured party must have an insurable interest in the subject matter that is insured. Other principles and rules include the duty of disclosure placed on the insured, the nature and scope of pre-contractual misrepresentation by the insured, the relationship between exclusions in insurance contracts and the general law on unfair contract terms.
Insurance contracts also differ to most other contracts in that the parties thereto are under an obligation of utmost good faith. In order to have a meaningful insurance agreement, each party must be totally honest so that risk may be transferred for a reasonable premium. An insurer will rely heavily on the information provided by the applicant in the proposal form.
The insured is also required to disclose any material changes to facts that may have occurred since the inception or renewal of the policy, as appropriate.
In addition, ‘cooling off’ cancellation rights apply for life policies, and for certain others.
Are (re)insurance contracts subject to any mandatory/prohibited provisions?
There are a number of formal requirements to be met in motor insurance policies, in marine insurance and in life assurance policies as a result of particular statutory requirements. Further, obligations arise under consumer information, unfair contract terms, sale of goods and supply of services and distance marketing legislation, as well as there being pre-contractual provision of information requirements.
More generally, in order to be a legally enforceable contract, the policy must include detail as to the key terms of the cover that is to be provided, including:
- the risk or subject matter to be covered under the policy;
- the date of commencement and the term of cover under the policy; and
- the level of cover to be provided in the event of a loss.
Can any terms by implied into (re)insurance contracts (eg, a duty of good faith)?
See “What general rules, requirements and procedures govern the conclusion of (re)insurance contracts in your jurisdiction?” above.
What standard or common contractual terms are in use?
In addition to matters such as risk and subject matter, date of commencement and term of cover, as outlined above, the insurance contracts will usually contain warranties and conditions.
Most proposal forms include a declaration to be signed by the applicant to the effect that all information provided in the proposal form is accurate and complete and acknowledging that such information will form the basis of the insurance contract.
What is the state of development in your jurisdiction with regard to the use of ‘smart’ contracts (ie, blockchain based) for (re)insurance purposes? Are any other types of financial technology commonly used in the conclusion of (re)insurance contracts?
There is much industry discussion (eg, papers and conference topics) about new and innovative technology solutions for the insurance industry. As recently reported by the Central Bank in its June 2017 publication Industry Research on the Digitalisation of Financial Services, technology such as smart contracts, blockchain and end-to-end (sales, service, renewal, claims) digital capability are all being explored by insurers in the Irish market. Technology such as telematics, mobile payments and social media complaints handling are already in use in the Irish market.
What rules and procedures govern breach of contract (for both (re)insurer and insured)?
The effect of a breach of contract depends on the type of breach, but can result in an insurance contract being deemed void or voidable. If the insured breaches a warranty (no matter how insignificant that breach may appear), the insurer will be entitled to repudiate liability and avoid the policy from the date of such breach.
Where the insured has breached a condition precedent to liability, the insurer will be entitled to terminate the entire policy ab initio. If there is a breach of a condition that goes to the heart of the contract, the insurer may terminate the policy from the date of the breach. If the breach does not go to the heart of the contract, the insurer may still sue for any loss suffered as a result of the breach.
An insurer may also be entitled to avoid paying out under a policy where the insured has failed to disclose all relevant material facts relating to that policy (ie, a breach of the basis of agreement declaration).
Where the insurer has breached the contract, the general actions for breach of contract are available to the insured (subject to the terms of the insurance contracting providing otherwise).
What consumer protection regulations are in place to safeguard the rights of purchasers of insurance products and services?
The Central Bank of Ireland’s Consumer Protection Code 2012 provides a set of general principles and common rules for all regulated entities, combined with certain industry-specific requirements when providing financial products and services to consumers.
The code’s common requirements provide that firms must act in the best interests of their customers by:
- selling consumers products that are suitable;
- explaining why the products offered are suitable for that consumer;
- not misleading consumers; and
- dealing with any complaints in an efficient and fair manner.
Insurance industry-specific requirements include:
- requirements relating to quotations, proposals and policy documentation;
- claims processing;
- client premium account;
- premium handling and the payment of premium rebates to consumers; and
- the disclosure of certain information relating to the insurer and its relationship with the insured.
Other consumer protection legislation in Ireland includes the:
- Consumer Information Act 1978;
- Sale of Goods and Supply of Services Act 1980; and
- Consumer Credit Act and Unfair Contract Terms legislation.
What general rules, requirements and procedures govern the filing of insurance claims?
The terms of the insurance contract will govern the filing of claims. Notification requirements differ from policy to policy depending on whether the policy in question is claims made or losses occurring. In claims-made policies, the requirement will typically be to notify the insurer of a claim or a circumstance which may lead to a claim as soon as possible or within a stipulated time after the insured becomes aware of it. Typically, notification must be in writing and copies of the relevant documents must be provided along with full details of the claim and circumstances.
The code also sets out claims processing requirements which apply to insurers including, among other things, a requirement to have in place a written procedure for the effective and proper handling of claims and also to ensure that any claim settlement offer made to a claimant is fair. In circumstances where a claim is declined, insurers must provide the claimant with the reason for the decision and also written details of any internal appeals mechanisms available. The code also sets out certain requirements which apply to insurance intermediaries who assist a policyholder in making a claim.
What is the time bar for filing claims?
Section 11(1)(a) of the Statute of Limitations Act 1957 provides that actions founded on contract shall not be brought after the expiration of six years from the date on which the cause of action accrued (ie, the date of the breach of contract). Claims for breach of contract must therefore be instituted, by issuing court proceedings, within this time.
The Financial Services Ombudsman (FSO) also has jurisdiction to investigate complaints from consumers about their individual dealings with all financial services providers that have not been resolved by the providers. However, no complaint can be made to the FSO if the conduct at issue occurred more than six years before the complaint is made, except in the case of long-term financial services which may include certain life insurance products (at the time of writing, legislation to provide for such longer period has been enacted but has not yet been commenced).
Insofar as this question concerns the time within which a claim must be submitted by an insured to an insurer, this should be made in accordance with the terms of the insurance contract, in particular, the notification conditions.
Denial of claim
On what grounds can the (re)insurer deny coverage?
An insurer can refuse to cover a claim if it is not within the insuring clause of the policy (ie, the scope of cover provided for by the policy), if there has been a breach of a condition precedent or warranty by an insured or if the claim is specifically excluded under the policy.
An insurer can also avoid the policy for non-disclosure of a material fact or a material misrepresentation.
What rules and procedures govern the insured’s challenge of the denial of a claim?
The rules and procedures that govern the insured’s challenge of the denial of a claim depend on the forum in which he or she chooses to challenge the denial.
An insured should first look at the complaints handling and dispute resolution provisions of the insurance contract. If the contract contains an arbitration clause, the dispute must be referred to arbitration. However, a consumer will not be bound by an arbitration clause where the term was not individually negotiated and where the claim is less than €5,000, unless the arbitration agreement was entered into after the dispute arose. The Arbitration Act 2010 (which came into force on June 8 2010) has applied the United Nations Commission on International Trade Law Model Law and applies to all Irish arbitrations.
The general actions for breach of contract are available to the insured (subject to the terms of the insurance contract providing otherwise). Thus, where an insurer has failed to pay a valid claim, an insured would have an action for damages against the insurer. Such claims are brought through the Irish courts and are subject to the normal rules and procedures applicable to the courts. If damages are inappropriate, the court may grant specific performance (however, this is a discretionary remedy, so the courts will also take into account other considerations).
If insurers have avoided the policy, an insured may also bring an action seeking a declaration that the policy is valid and subsisting and responds to the claim at issue.
If an insured wishes to challenge the denial of a claim, Section 11(1)(a) of the Statute of Limitations Act 1957 should be considered (see “What is the time bar for filing claims?” above).
If an insured chooses to make a complaint to the FSO, the insured must do so within the time limits and demonstrate that they have first exhausted the insurer’s internal complaint procedure and that the complaint cannot be resolved.
On what grounds can a third party file a claim directly with the (re)insurer?
A person who is not party to (or who is not an insured person under) the insurance contract between the insurer and the policyholder generally has no rights at common law against the insurer. Such a person is caught by the privity of contract rule which means that only the parties to the contract (those parties privy to it) have enforceable rights and obligations under the contract.
There are certain exceptions to the privity of contract rule, for example Section 76(1) of the Road Traffic Act 1961, which affords a person claiming against an insured motorist certain remedies against an insurer.
The Irish government has proposed draft legislation in the form of the Consumer Insurance Contracts Bill 2017 which provides for third parties intended to benefit under an insurance contract to be permitted to make a direct claim against the insurer in certain circumstances.
Are punitive damages insurable?
Insurers can choose to cover or exclude punitive damages. Therefore, whether an insurer will be exposed to claims in respect of punitive damages depends on the terms and conditions of an individual policy. From an insurer’s perspective, the policy would ideally include a provision specifically excluding the payment of punitive or exemplary damages. In any event, punitive damages are likely to involve some manner of wilful deceit or neglect on the part of the insured, something that is likely to be exempted from cover.
What regime governs (re)insurers’ subrogation rights?
In insurance terms, subrogation is the process whereby an insured’s subsisting right of action is transferred to the insurer. Subrogation is based on the principle of indemnity and is justified on the basis that once reimbursed by the insurer, the insured should not be unjustly enriched through recourse against the person responsible for their loss. In Ireland, once the insured has been fully indemnified in respect of an insured loss, the insurer is entitled to issue and control proceedings (in the name of the insured) against the person(s) responsible for the loss which gave rise to the insurer’s obligations under the insurance contract.
Certain conditions must be satisfied before an insurer may exercise rights of subrogation, namely that:
- the insurance is an indemnity insurance;
- the insurer has made payment under that policy; and
- there is a connection between the subject matter of the insurance and the rights of an insured to which the insurer are subrogated.
These rights can be modified by incorporating into the policy the conditions which enable insurers to take over the right before they indemnify an insured or which exclude the insurer’s rights of subrogation.
In certain circumstances an insurer may agree to waive its subrogation rights at the request of an insured.
Some insurance contracts will not have a condition entitled ‘subrogation’ but will have a condition giving insurers control of claims and the right to prosecute any claims at their own cost.
How are the services of insurance intermediaries regulated in your jurisdiction?
The principal legislation regulating the services of insurance intermediaries is the European Communities (Insurance Mediation) Regulations 2005 which transposed the EU Insurance Mediation Directive 2002 (2002/92/EC) into Irish law. Insurance intermediaries conducting mediation business in Ireland are also subject to conduct of business rules such as the Central Bank’s Consumer Protection Code 2012. The EU Insurance Distribution Directive (2016/97/EC) will replace the existing regime for insurance mediation in 2018.
What tax liabilities arise in the conduct of (re)insurance business?
Shareholder and policyholders of life insurers establishing operations in Ireland can both benefit from an attractive tax regime. Shareholder profits are generally taxable at a rate of corporation tax of 12.5% and policyholder profits can be rolled up free of tax (ie, gross roll-up). Exit tax arises on payments made to Irish (non-exempt) policyholders where the rate is 25% where the policyholder is a company and makes an appropriate election, or 41% in all other cases. Once non-resident policyholders appropriately provide a declaration of non-residence, they will not suffer exit tax.
In the case of a non-life insurer carrying on a trade in Ireland, profits will typically be taxed at a rate of 12.5%. General insurers are usually taxed in the same manner as other trading companies, subject to industry-specific differences (eg, treatment of investment incomes, realisation of non-financial investments and provisions and reserves) that have arisen as a result of practical rather than statutory rules.
Reinsurance business is taxed in the same manner as non-life insurance businesses, at the standard 12.5% corporation tax rate. However, it is possible to establish special purpose reinsurance vehicles on a tax-neutral basis, provided they satisfy the conditions to be a qualifying company within the meaning of Section 110 of the Taxes Consolidation Act 1997.
What regime governs the insolvency of (re)insurers?
Winding-up proceedings in respect of an insurer, including its branches in other member states, are governed by the Companies Act 2014 and the Insurance Acts, as appropriate, unless otherwise provided by the European Union (Insurance and Reinsurance) Regulations 2015.
Effect on insureds
How does a (re)insurer’s insolvency affect insureds and the (re)insurer’s obligations to insureds?
Insureds are afforded a certain level of protection under the 2015 regulations in the event of the commencement of winding-up proceedings in respect of an insurer. Insurance claims will generally, with respect to the assets representing the technical provisions, take absolute precedence over any other claims on the insurer, including certain claims afforded preference under Irish company law.
However, limitations to the precedence of insurance claims do apply in certain circumstances including those where the assets (which do not represent the technical provisions) are insufficient to meet the expenses arising out of the winding-up proceedings, and also in relation to rights in rem of third parties, rights based on reservation of title and certain creditors’ rights to demand set-off where certain conditions apply to the asset(s).
Are there any compulsory or preferred venues for insurance litigation in your jurisdiction?
The venue for the resolution of disputes between an insurer and insured may depend on the terms of the insurance contract. For instance, some contracts will contain compulsory arbitration clauses (see “What regime governs the arbitrability of insurance disputes?” below).
However, the venue for resolution of such disputes will usually be the Irish courts.
Before issuing court proceedings, the potential monetary value of the claim will need to be determined as it will dictate the relevant court venue for the case. The following monetary limits apply to the following courts:
- District Court – €15,000;
- Circuit Court – €75,000 (except for personal injury actions where the court’s jurisdiction is limited to €60,000); and
- High Court – in excess of €75,000, or in excess of €60,000 in personal injury actions.
In addition, insurance litigation, which is commercial in nature and in which the value of the claim exceeds €1 million, may be brought in the Commercial List of the High Court. It is a matter for the discretion of the Commercial Court whether to admit the case into its list.
Regarding personal injury claims, the claim must first be submitted for assessment to the Personal Injuries Assessment Board (the statutory body established to assess claims for personal injury) before court proceedings may be commenced. Based on medical evidence in question, the board will make an assessment of the quantum of the damages payable to the injured party. If both parties accept the board’s assessment, court proceedings will not take place.
The Financial Services Ombudsman (FSO) also has jurisdiction to investigate complaints from consumers about their individual dealings with insurers that have not been resolved by the providers subject to certain time limits. However, no complaint can be made to the FSO if the conduct at issue occurred more than six years before the complaint is made, except in the case of long-term financial services which may include certain life insurance products (at the time of writing, legislation to provide for such longer period has been enacted but it is not yet commenced). The FSO’s decision is binding on both parties (subject to an appeal to the High Court on limited grounds).
How are insurance disputes with a cross-border element handled in your jurisdiction?
The choice of jurisdiction and governing law clauses in an insurance contract are typically recognised and enforced in Ireland. However, where an insured is domiciled in an EU member state, one should be cognisant of the Brussels I Regulations, the Recast Brussels Regulation (which replaces the Brussels I Regulation in respect of proceedings and judgments in proceedings commenced after January 10 2015) and the Rome I Regulation, as these may limit the application of these clauses in insurance contracts.
What issues are commonly the subject of insurance litigation?
This depends on the type of insurance policy. For example, in a professional indemnity insurance context, such policies generally indemnify the insured entity for legal liability to pay damages for losses suffered by a claimant where the claim arose because the insured negligently performed professional services, such as a solicitor giving advice on a legal matter, or an architect providing designs for a new property. From a coverage perspective, issues will arise if a professional has acted outside the scope of coverage provided for by the policy. Issues of non-disclosure and late notification can also arise in the context of these policies.
What is the typical timeframe for insurance litigation?
The typical timeframe depends on the venue (see “Are there any compulsory or preferred venues for insurance litigation in your jurisdiction?” above).
For example, if the parties are engaging in arbitration they can agree a timetable for the exchange of pleadings and can seek to have the arbitration case-managed by the arbitrator, which can help speed up the process and in some instances result in a quicker resolution than court proceedings.
On the other hand, if the parties are engaged in court proceedings, the timeline is often longer. However, cases in the Commercial Court are generally managed by the court and heard quickly, often within one year of admission. Cases in the ordinary High Court lists generally take much longer – two years would not be unusual.
Two separate sets of amendments to the Rules of the Superior Courts were introduced in 2016. One addressed pre-trial case management and the other, the conduct of trials. The new rules regarding the conduct of trials are in force but those relating to pre-trial management are not. One of the aims of the new rules is to manage the length of pleadings and trials in the High Court.
If a complaint is being submitted to the FSO, there are stipulated timelines for the various stages of the complaint process. Generally the investigative process takes approximately 35 to 45 working days, but may take longer. Shortly after the full exchange between the parties is complete the FSO should issue a finding. However, the timeframes are guidelines only and may depend on various factors.
What regime governs the arbitrability of insurance disputes?
Where an insurance contract contains an arbitration clause, the dispute must be then referred to arbitration. However, a consumer is not bound by an arbitration clause where the term was not individually negotiated and where the claim is less than €5,000, unless the arbitration agreement was entered into after the dispute arose.
The Arbitration Act 2010 (which came into force on June 8 2010) has applied the United Nations Commission on International Trade Law Model Law and applies to all Irish arbitrations.