Poole & Ors v Her Majesty Treasury

Factual and Procedural Background

The Claimants, who were underwriting Names at Lloyd's between 1980 and 1996, issued a Claim Form on 2 September 2002 seeking damages from Her Majesty's Government. They alleged losses due to the Government's failure to implement Directive 73/239/EEC ("the Insurance Directive") as required under the Treaty of Accession. The Insurance Directive aimed to coordinate laws related to direct insurance other than life assurance within the European Community.

The Claimants' case centered on the failure of the Defendant to implement the Directive properly, resulting in inadequate regulatory oversight of Lloyd's syndicates, particularly concerning liabilities incurred but not reported (IBNR) and the reinsurance to close (RITC) system. The Claimants asserted that had the Directive been properly implemented, the significant but unquantifiable IBNR liabilities would have been revealed, preventing them from joining, continuing, or increasing underwriting capacity at Lloyd's under false pretenses.

The Defendant was said to have delegated key regulatory functions to Lloyd's, permitted inadequate accounting systems, and failed to verify solvency of Lloyd's syndicates. The UK did not amend its national provisions to comply with the Directive until at least 1 December 2001, when the Financial Services and Markets Act 2000 (FSMA) came into force.

The losses claimed included personal liabilities arising from the 1996 Reconstruction and Renewal (R&R) exercise, trading losses, damages consequential upon enforcement of Lloyd's demands, and potential future losses due to the insolvency risk of Equitas.

Procedurally, a Group Litigation Order was made in 2004, with two key issues identified for trial: the Grant of Rights Issue and the Limitation Issue. Extensive evidence was gathered, including witness statements from sample Names and others, and a comprehensive Agreed Statement of Facts was prepared. The trial commenced on 3 July 2006.

Legal Issues Presented

1. Whether the Insurance Directive grants rights to individuals in the position of the Claimants (Grant of Rights Issue).
2. Whether the claims are time-barred under applicable limitation periods (Limitation Issue).

Arguments of the Parties

Claimants' Arguments

• The Insurance Directive grants rights to the Claimants both as insurers and insureds, including rights to a properly regulated insurance market ensuring adequate authorisation, accounting, solvency verification, and internal controls.
• The Defendant failed to implement the Directive properly, causing substantial losses through regulatory failures.
• The limitation period should not start until the Directive was fully transposed, or until the Claimants knew or ought to have known of the breach and their loss, invoking principles from ECJ case law including Emmott.
• The continuing nature of the breach means losses incurred within six years before proceedings commenced are recoverable.

Defendant's Arguments

• Even if the Directive grants any rights, these are limited to freedom of establishment rights for insurers and do not extend to the Claimants' claims arising from their losses as insurers.
• The UK properly discharged its obligations under the Directive; no sufficiently serious breach occurred to ground State liability.
• There is no direct causal link between any alleged breach and the Claimants' losses.
• The claims are time-barred under domestic limitation law.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed whether the Insurance Directive granted rights to the Claimants that could found a cause of action in damages against the Government for failure to implement the Directive. It concluded that the Directive's purpose was to facilitate freedom of establishment and coordinate supervisory provisions to protect insured parties, not to confer enforceable rights on insurers or investors such as the Claimants. Analogies with banking directives and related case law supported this conclusion.

Regarding limitation, the Court held that the six-year limitation period under Section 2 of the Limitation Act 1980 applies, starting from when damage was first suffered. The Claimants, by becoming or continuing as Names, suffered actionable damage at the time of their commitment to underwriting liabilities, regardless of their knowledge. The Court rejected the Claimants' primary submission that limitation did not start until the Directive was fully transposed, holding that the Emmott principle is confined to exceptional cases of State obstruction, which were not present here.

The Court further considered Section 14A of the Limitation Act 1980, which provides an alternative limitation period based on knowledge. It held that the Claimants had, acting reasonably, sufficient knowledge of their losses and the regulatory environment by at least 2 September 1999, if not earlier, such that claims were time-barred even under this extended limitation.

The Court noted extensive public and legal awareness of the losses, regulatory criticisms, and the possible relevance of European law well before the claim was issued. It rejected the notion that the Court of Appeal's judgment in Jaffray was a revelatory event triggering the present claims.

Overall, the Court found no basis to hold that the Directive granted rights to the Claimants or that limitation should be extended to permit the claims. Consequently, the claims are statute-barred and must be dismissed.

Holding and Implications

The Court's final decision is to DISMISS the claims. The Court held that:

• The Insurance Directive does not grant rights to individuals in the position of the Claimants that would support a claim for damages against the Government for failure to implement the Directive.
• The claims are barred by the applicable limitation periods under domestic law.
• The Claimants had sufficient knowledge of their losses and the regulatory failures well before the limitation periods expired.

The direct effect is the dismissal of the claims brought by the Claimants against the Government. The Court did not establish any new precedent extending rights under the Directive to insurers or investors, nor did it alter the established principles on limitation in this context.