This presentation by David Courtenay of Courtenay & Co Solicitors, Lane Cove is available for download.
WALKING THE TIGHTROPE
ETHICAL AND PRACTICAL ISSUES OF RECOVERY
I admit to pinching the expression “Walking the Tightrope” in this context from the Geoff Masel Lecture Series delivered by Tony Scotford of Ebsworth & Ebsworth to the Australian Insurance Law Association in 2006. For those interested in further reading follow the link below for a list of articles. Feel free to email me for copies as I have most of them.
In the following
- I firstly seek to characterise and explain the nature of the relationship between an insurer and its insured and other professionals instructed to assist those parties in their claim primarily with a view to explaining the conflicts that can arise and how you might seek to deal with them when they arise.
- I also provide examples of some cases involving conflicts and explore two short case studies.
LAW AND RELATIONSHIPS
- Our law rarely operates in a vacuum. Generally it moderates relationships.
- The rights and obligations of one person to another, at law, thus commonly depend upon the nature of a relationship and different relationships give rise to different rights and obligations and different remedies for breach.
RELATIONSHIP 1 – INSURER : INSURED
The relationship between the insurer and its insured is contractual. The contract is, however, subject to a statutory implied term by operation of section 13 of the Insurance Contracts Act 1984 to the effect that each party must act towards the other in respect of any matter arising under or in relation to that contract with the utmost good faith.
RELATIONSHIP 2 – WITH A SOLICITOR
The solicitor/client relationship is a fiduciary relationship. It is a relationship of confidence. Equity imposes duties upon the person in whom the confidence is reposed, namely the solicitor, in order to prevent the abuse of that confidence.
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David Courtenay specialises in litigation and has acted for a number of major banks, institutions and insurance companies. David regularly delivers presentations to industry bodies.