Law Report: Duty of care is owed to names: Arbuthnott v Feltrim; Deeny v Gooda Walker; Henderson v The Merrett Syndicates - Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Hoffmann and Lord Justice Henry), 13 December 1993.

Underwriting agents of Lloyd's names, whether members' agents or managing agents or both, owe a duty of care to their names to exercise reasonable care and skill in the conduct of underwriting business.

The Court of Appeal unanimously dismissed appeals by underwriting agents of Lloyd's names from Mr Justice Saville's decision on 12 October 1993 that the underwriting agents owed a duty of care to their names.

A Lloyd's name was not a professional underwriter and appointed an underwriting agent to conduct the underwriting on his behalf. The underwriting agents, known as members' agents, were appointed under an underwriting agency agreement. The underwriting was done on behalf of the name through a syndicate of which the name, with others, was a member. Syndicates were managed by managing agents who employed a professional underwriter. The underwriting agent might be both the member's agent and managing agent, or only the member's agent but appointing a managing agent under a sub-agency agreement.

Before 1987 there was no prescribed form of agreement between name and underwriting agent, but agreements were of a uniform standard. From 1987, under Lloyd's by-laws, a standard form of agency agreement became mandatory.

Bernard Eder QC and Colin Edelman (Oswald Hickson Collier) for Merrett members' agents; Bernard Eder QC and David Foxton (Elborne Mitchell) for Feltrim members' agents; Bernard Eder QC and Christopher Butcher (Elbourne Mitchell) for Gooda Walker members' agents; Anthony Temple QC and John Rowland (Reynolds Porter) for Merrett managing agents; John Rowland (Clifford Chance) for Feltrim managing agents; Anthony Boswood QC and Stephen Moriarty (Moore Fisher Brown; Richards Butler) for the Merrett names and Feltrim names; Geoffrey Vos QC and David Lord (Wilde Sapte) for Gooda Walker names.

SIR THOMAS BINGHAM MR said that the first issue concerned the liability of managing agents to names before 1987. Although managing agents who were not also members' agents had control and management of the underwriting, the agent was not absolved from the duty ordinarily binding on any professional agent to exercise reasonable care and skill. Any successful claim against the agent in negligence would have to show a failure to show the standard of skill and care reasonably to be expected of such an agent at the time and with the knowledge that he had or should have had.

The managing agents owed a tortious duty to the names to take reasonable care not to cause them economic loss. It was not easy to think of a non-contractual commercial relationship in which a duty of care more obviously ought to exist than the relationship of managing agent and name.

Where the managing agents were also members' agents and therefore in direct contractual relations with names, the argument that the contract governed relations between them and regulated the duty of care so that the court would not impose a concurrent duty of care in tort should be rejected. The names did not rely on the law of tort to provide a duty more extensive or far-reaching than the contractual duty, even though the names gained the benefit of a more advantageous limitation period.

Under the post-1987 agreements, members' agents who were not also managing agents were prevented from carrying out the underwriting but had a comprehensive power to delegate. Under the plain meaning of the agreement the members' agents did undertake to conduct on behalf of the name the underwriting business of the name, including the functions which the managing agents performed.

If any underwriting transaction was conducted without reasonable care and skill, it would not avail members' agents to demonstrate that other underwriting transactions were properly conducted. Mr Justice Saville's rulings would be affirmed.

Ying Hui Tan, Barrister

Arts and Entertainment
BBC Three was launched a little over five years ago with the slogan: “Three, is a magic number, yes it is.”

BBC Trust agrees to axe channel from TV in favour of digital move

TV
Arts and Entertainment
British actor Idris Elba is also a DJ and rapper who played Ibiza last summer

film
Arts and Entertainment

books
Arts and Entertainment
Armie Hammer in the new film of ‘The Lone Ranger’

TV
Arts and Entertainment

festivals
Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

ebooks
Arts and Entertainment
Buying a stairway to Hubbard: the Scientology centre in Los Angeles
film review Chilling inside views on a secretive church
Arts and Entertainment
Jason Williamson, left, and Andrew Fearn of Sleaford Mods
musicYou are nobody in public life until you have been soundly insulted by Sleaford Mods
Arts and Entertainment
Natalie Dew (Jess) in Bend It Like Beckham The Musical
theatreReview: Bend It Like Beckham hits back of the net on opening night
Arts and Entertainment
The young sea-faring Charles Darwin – seen here in an 1809 portrait – is to be portrayed as an Indiana Jones-style adventurer
film
Arts and Entertainment
The audience aimed thousands of Apple’s product units at Taylor Swift throughout the show
musicReview: On stage her manner is natural, her command of space masterful
Arts and Entertainment
Channel 4 is reviving its Chris Evans-hosted Nineties hit TFI Friday

TV
Arts and Entertainment
Harrison Ford plays Indiana Jones in The Last Crusade (1989)

film
Arts and Entertainment

music
Arts and Entertainment
A Glastonbury reveller hides under an umbrella at the festival last year

Glastonbury
Arts and Entertainment

music
Arts and Entertainment
Miles Morales is to replace Peter Parker as the new Spider-Man

comics
Arts and Entertainment
The sequel to 1993's Jurassic Park, Jurassic World, has stormed into the global record books to score the highest worldwide opening weekend in history.

film
Arts and Entertainment
Odi (Will Tudor)
tvReview: Humans, episode 2
Arts and Entertainment
Can't cope with a Port-A-loo? We've got the solution for you

FestivalsFive ways to avoid the portable toilets

Arts and Entertainment
Some zookeepers have been braver than others in the #jurassiczoo trend

Jurassic WorldThe results are completely brilliant

Arts and Entertainment
An original Miffy illustration
art
Arts and Entertainment
Man of mystery: Ian McKellen as an ageing Sherlock Holmes
film review
Arts and Entertainment
Kitchen set: Yvette Fielding, Patricia Potter, Chesney Hawkes, Sarah Harding and Sheree Murphy
TV review
Arts and Entertainment
Chris Evans has been confirmed as the new host of Top Gear
TV
Arts and Entertainment
Top of the class: Iggy Azalea and the catchy ‘Fancy’
music
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Seifeddine Rezgui: What motivated a shy student to kill 38 holidaymakers in Tunisia?

    Making of a killer

    What motivated a shy student to kill 38 holidaymakers in Tunisia?
    UK Heatwave: Temperatures on the tube are going to exceed the legal limit for transporting cattle

    Just when you thought your commute couldn't get any worse...

    Heatwave will see temperatures on the Tube exceed legal limit for transporting cattle
    Exclusive - The Real Stories of Migrant Britain: Swapping Bucharest for London

    The Real Stories of Migrant Britain

    Meet the man who swapped Romania for the UK in a bid to provide for his family, only to discover that the home he left behind wasn't quite what it seemed
    Cheaper energy on the way, but it's not all sunshine and rainbows

    Cheaper energy on the way, but it's not all sunshine and rainbows

    Solar power will help bring down electricity prices over the next five years, according to a new report. But it’s cheap imports of ‘dirty power’ that will lower them the most
    Katy Perry prevented from buying California convent for $14.5m after nuns sell to local businesswoman instead

    No grace of God for Katy Perry as sisters act to stop her buying convent

    Archdiocese sues nuns who turned down star’s $14.5m because they don’t approve of her
    Ajmer: The ancient Indian metropolis chosen to be a 'smart city' where residents would just be happy to have power and running water

    Residents just want water and power in a city chosen to be a ‘smart’ metropolis

    The Indian Government has launched an ambitious plan to transform 100 of its crumbling cities
    Michael Fassbender in 'Macbeth': The Scottish play on film, from Welles to Cheggers

    Something wicked?

    Films of Macbeth don’t always end well - just ask Orson Welles... and Keith Chegwin
    10 best sun creams for body

    10 best sun creams for body

    Make sure you’re protected from head to toe in the heatwave
    Wimbledon 2015: Nick Bollettieri - Milos Raonic has ability to get to the top but he must learn to handle pressure in big games

    Nick Bollettieri's Wimbledon files

    Milos Raonic has ability to get to the top but he must learn to handle pressure in big games
    Women's World Cup 2015: How England's semi-final success could do wonders for both sexes

    There is more than a shiny trophy to be won by England’s World Cup women

    The success of the decidedly non-famous females wearing the Three Lions could do wonders for a ‘man’s game’ riddled with cynicism and greed
    How to stop an asteroid hitting Earth: Would people co-operate to face down a global peril?

    How to stop an asteroid hitting Earth

    Would people cooperate to face a global peril?
    Just one day to find €1.6bn: Greece edges nearer euro exit

    One day to find €1.6bn

    Greece is edging inexorably towards an exit from the euro
    New 'Iron Man' augmented reality technology could help surgeons and firefighters, say scientists

    'Iron Man' augmented reality technology could become reality

    Holographic projections would provide extra information on objects in a person's visual field in real time
    Sugary drinks 'are killing 184,000 adults around the world every year'

    Sugary drinks are killing 184,000 adults around the world every year

    The drinks that should be eliminated from people's diets
    Pride of Place: Historians map out untold LGBT histories of locations throughout UK

    Historians map out untold LGBT histories

    Public are being asked to help improve the map