The Business Court docket judgment in Mission Angel Bidco Ltd (in Administration) v Axis Managing Company Ltd [2023] EWHC 2649 (Comm) is the most recent addition to a small however rising physique of English case legislation relating to the operation of guarantee and indemnity insurance coverage (W&I) insurance policies and claims made towards such insurance policies (see our articles on earlier circumstances: Finsbury Meals v Axis [2023] and Ageas (UK) Ltd v Kwik-Match [2014]). Guarantee and indemnity insurance coverage is a well-liked M&A deal software designed to switch the chance and monetary penalties of warranties given within the context of company transactions from the transaction events into the insurance coverage market.

On this case, his Honour Choose Pelling KC rejected the declare by a purchaser and insured (the Purchaser) that the buyer-side W&I coverage (the Coverage) issued by the defendant insurers (the Insurers) contained an apparent drafting error which ought to be corrected as a matter of development to stop the Insurers counting on an exclusion clause to disclaim protection.

The Court docket sought to use rules of contractual interpretation as set down in FCA v Arch Insurance coverage (UK) Restricted and others [2021] UKSC 1 (the FCA Take a look at Case) in deciding that: (i) there was no apparent mistake within the drafting of the breadth of the ABC exclusion, which due to this fact included alleged in addition to precise legal responsibility; and (ii) considered as a complete, there was no cowl for breach of ABC legal responsibility warranties though they had been listed as coated within the face of an equivalently large and express exclusion.

BACKGROUND

On 19 November 2019, the Purchaser acquired the complete issued share capital of Knowlsey Contractors Restricted (buying and selling as King Building) (the Goal), which carried on enterprise as a supplier of civil engineering and common development companies primarily to native authorities and principally to Liverpool Metropolis Council. The sale was for £16.7m (the Transaction). The Transaction was concluded underneath a sale and buy settlement (SPA) underneath which the sellers gave warranties which had been then insured underneath the Purchaser’s W&I Coverage (with £5m coverage restrict), with the sellers’ legal responsibility for breach of guarantee capped at a nominal quantity underneath the SPA (save for fraud claims).

Publish-sale, the Purchaser found that the sellers had been allegedly concerned in conduct that contravened anti-bribery laws. This alleged conduct was the topic of an ongoing police enquiry and the events agreed that the small print ought to be handled as confidential for the needs of the trial.

The Declare

The Purchaser maintained that because of the invention of the alleged conduct, Liverpool Metropolis Council, being a serious shopper of the Goal, ceased or severely lowered the enterprise it did with the Goal. The sellers’ failure to reveal the conduct resulted in a breach of guarantee underneath the SPA inflicting the Purchaser to undergo loss and injury because it had acquired shares within the Goal that had a decrease worth than if the warranties had been true. The warranties alleged to have been breached involved undertakings that the sellers:

• weren’t engaged in (or conscious of any circumstances regarding the Goal’s enterprise regarding) any litigation, arbitration, mediation, prosecution or different authorized proceedings or ADR or any proceedings or hearings earlier than any authority and that no such issues had been pending or threatened or have been settled by a deferred prosecution settlement;
• had not acquired discover and/or was not conscious of any circumstances that might give rise to an investigation or enquiry by any authority in respect of its affairs;
• had not dedicated any materials breach of contract, tort, statutory obligation or legislation which is able to trigger materials injury or loss to the Goal; and
• had not engaged in acts of bribery and corruption.

The Exclusion

The Insurers’ major defence was that that they had no legal responsibility for the declare underneath the Coverage by operation of the exclusion contained in clause 5.2.15 of the Coverage (the Exclusion) which supplied that:

“(t)he Underwriters shall not be liable to pay any Loss to the extent that it arises out of…any ABC Legal responsibility”.

“ABC Legal responsibility” was outlined within the coverage wording as that means:

“any legal responsibility or precise or alleged non-compliance by any member of the Goal Group or any agent, affiliate or different third occasion in respect of Anti-Bribery and Anti-Corruption Legal guidelines”.

The Purchaser argued that the Exclusion didn’t apply as a result of the definition of “ABC Legal responsibility” contained an “apparent minor error” and ought to be corrected from (the Purchaser’s proposed modification as in daring and underlined):

“any legal responsibility or precise or alleged non-compliance… in respect of Anti-Bribery and Anti-Corruption Legal guidelines”.

to learn:

“any legal responsibility for precise or alleged non-compliance… in respect of Anti-Bribery and Anti-Corruption Legal guidelines”.

The important thing distinction underneath the Purchaser’s reformulation of the wording was that underneath the proposed amended wording it must be established that there was an precise authorized legal responsibility for breach of Anti-Bribery and Anti-Corruption Legal guidelines for the Exclusion to use (and {that a} mere allegation of breach of such ABC Legal responsibility was inadequate to set off the Exclusion).

There have been additionally competing submissions earlier than the Court docket as to the extent to which reliance could possibly be positioned on pre-contractual exchanges, together with emails/WhatsApp messages between the Insurers’ underwriters/underwriting brokers and the insurance coverage dealer and varied drafts of the Coverage to resolve this query of development.

The Purchaser additionally relied on the truth that the related bribery and corruption guarantee from the SPA was marked as “Lined” (with none qualification) on the quilt spreadsheet which was appended to the Coverage.

DECISION

The primary situation thought-about was whether or not the pre-contractual supplies and negotiations had been admissible and/or related to the development of the outlined time period “ABC Legal responsibility”. The decide concluded that the pre-contractual emails and different supplies weren’t related to the central query which was to what extent would an inexpensive particular person, with all of the related background data, conclude the events had chosen to handle the chance? The start line to this query was to take a look at the precise phrases which had been used within the coverage documentation.

The decide finally rejected the Claimant’s submission that the definition of “ABC Legal responsibility” contained an apparent drafting error which ought to be corrected as a matter of development. The decide held that, as drafted, the definition of “ABC Legal responsibility” would seem to cowl three species of legal responsibility:

1. “Any Legal responsibility…in respect of Anti-Bribery and Anti-Corruption Legal guidelines”;
2. “Any…alleged non-compliance by any member of the Goal Group or any agent, affiliate or different third occasion in respect of Anti-Bribery and Anti-Corruption Legal guidelines”; and
3. “Any…precise…non-compliance by any member of the Goal Group or any agent, affiliate or different third occasion in respect of Anti-Bribery and Anti-Corruption Legal guidelines”.

The decide accordingly utilized the pure that means of the phrases used within the Coverage and agreed with the Insurers’ place. Within the judgment of the Court docket:

• The Exclusion clause at 5.2.15 of the Coverage as drafted was not inherently “absurd or apparent nonsense” and it made clear sense when learn along with the Insuring Clause and different provisions of the Coverage.
• Underneath regular English legislation rules for the interpretation of insurance coverage insurance policies and different business contracts, as set out within the FCA Take a look at Case, the Coverage was to be construed in accordance with the understanding of an inexpensive particular person with all of the background data which might fairly have been obtainable to the events once they entered into the Coverage. Within the decide’s view, such an individual would have learn the phrase “or” as referring disjunctively to totally different conditions every of which got here throughout the scope of the Exclusion.

As to the Purchaser’s arguments that the related warranties had been marked as coated (on an unqualified foundation) on the quilt spreadsheet to the Coverage, the decide discovered that the quilt spreadsheet’s objective was to determine warranties that had been coated in precept. {That a} common protection exclusion (similar to a common exclusion for ABC Legal responsibility) can then apply to, and qualify protection in respect of, a person guarantee marked as “Lined” didn’t imply the Coverage was contradictory or change the decide’s conclusion that the exclusion did apply.

COMMENT

The judgment illustrates that, as all the time, it’s difficult to determine that there’s an precise mistake on the face of the wording, versus arguing for a selected interpretation when a couple of interpretation is believable.

Will probably be uncommon {that a} policyholder can depend on pre-contractual exchanges with brokers and insurers as to the protection the policyholder ‘thought’ it was buying within the face of categorical wording used within the coverage documentation on the contrary – and absent assembly the take a look at for estoppel or rectification or related.

The end result of this case was that the Insurers succeeded though they expressly recognized the ABC warranties as coated, whereas searching for to completely exclude such legal responsibility in one other a part of the Coverage. Though the Court docket stated that the 2 positions could possibly be considered constantly, if appropriate, that is unlikely to match the expectations of these shopping for the product. In any occasion, right here there was a direct battle in that an ABC guarantee was marked as coated however the Coverage was topic to an ABC common exclusion. In different circumstances the place there’s much less of a direct match, the end result could also be totally different, considering the related information and circumstances and different elements which the Court docket recognised are related in such a development train, similar to business widespread sense and whether or not the mandatory causal nexus for the exclusion is established.