Equitas Re Shortchanging of Corporate America Made Easy Part II What To Do About It

Equitas Re Shortchanging of Corporate America Made Easy Part II What To Do About It

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Author's Note: The first article in this series, "Part I: How Equitas Re Gets Away with It," was published in the preceding edition of ABI Journal. This article deals with English law and relevant circumstances as of April 2, 2006. Detailed discussion of Equitas Re is at Astor's Equitas Re Handbook (2002; ISBN 1 873994 26 5), and Astor's Insolvency at Lloyd's and Equitas Re, 2nd Ed. (2006; ISBN 1 873994 90 7). The author's own technical terms are defined at his Master Glossary, which is downloadable from www.astorlaw.com/downloads. The reader should note the considerable legal complexity of the Lloyd's enterprise and the 'Equitas' construct, of which the present article conveys only an indication. This article should not be construed as criticising those U.S. corporate-assured-at-Lloyd's boards, CFOs and outside insurance lawyers whose approach to, and knowledge and practice of, relevant "Lloyd's" and 'Equitas' law and or practice has been faultless.


As discussed in last month's article in the present series, Equitas Re—the Lloyd's enterprise's own plain-vanilla captive reinsurance company (on whose holding company Lloyd's has a board seat1)—is not part of any formal front-office insolvency process binding, or even formally intended to be binding,2 on any EquitasRe-assured-at-Lloyd's. The 'Equitas' construct is not a form of liquidation,3 administration,4 receivership,5 s.425 scheme of arrangement6 or any other insolvency process. No liquidator, administrator, receiver, scheme manager or any other insolvency guardian is involved in any front-office7 aspect of either the Lloyd's enterprise's or Equitas Re's insolvency. No EquitasRe-assured-at-Lloyd's creditor is party to, or was invited or permitted to vote on, any relevant instrument or has any supervisory role in its operation. Indeed, a curious feature of the 'Equitas' construct is the absence of any collectivisation of or by EquitasRe-assureds-at-Lloyd's, whom Equitas Re picks off one by one. No court has approved any aspect of the 'Equitas' construct.

No Front-Office Legitimacy

The improvised 'Equitas' construct, which cost members of Lloyd's millions of pounds to contrive,8 wholly lacks legitimacy as a front-office insolvency process or device. In law and reality, the EquitasRe-assured-at-Lloyd's creditor retains in full all his rights for full recovery against the original debtor, whoever precisely that may be. Even the Lloyd's enterprise itself has expressly acknowledged its liability to pay EquitasRe-assureds-at-Lloyd's in full.9 Yet Equitas Re has particularly averred falsely a transfer of liabilities from the supposedly insolvent Lloyd's enterprise to Equitas Re personally in a way legally binding on the uninvolved EquitasRe-assured-at-Lloyd's.

Business Plan Requires Shortchanging

The 'Equitas' stratagem is assisted by the Lloyd's enterprise's inaccessibility for EquitasRe-reinsured claims, including the unavailability at Lloyd's of any claims-handling facility for any EquitasRe-reinsured liabilities. All creditor EquitasRe-assureds-at-Lloyd's must treat with its front company Equitas Re—as both claims handling agent and reinsurer principal—instead of with the enterprise itself. Equitas Re then uses various negotiating ploys10 to try to settle with disoriented EquitasRe-assureds-at-Lloyd's individually, usually accompanied by the entreaty or enticement to be 'commercial' rather than emerge with nothing at all. Many a major U.S. corporate EquitasRe-assured-at-Lloyd's is believed to have fallen for it, emerging from Equitas Re with a supposedly princely sum formerly known as insurance. Without such a device—fully backed by insurance regulators in numerous jurisdictions including the United Kingdom11 and New York12—the presumably deeply insolvent Lloyd's enterprise would have lost its corporate members, shut its doors to new business, and ruined the City of London's reputation.


It is believed that in its first 10 years of operation, Equitas Re has shortchanged corporate U.S. EquitasRe-assureds-at-Lloyd's by around $20bn, and that many substantial U.S. corporate EquitasRe-assureds-at-Lloyd's with substantial third-party liabilities, have thus put themselves at risk of insolvency. This should alarm insurance and securities regulators—from whom there continues to be deafening silence—as well as the shareholders, investors, creditors and bankruptcy trustees of the misguided corporations concerned. The bankruptcy trustee and dispossessed creditors will have to start belatedly figuring it all out.

Meanwhile, Business as Usual at Lloyd's

The Lloyd's enterprise, for its part—regulatorily solvent, apparently profitable overall13 for its current participants and with apparently ample enterprise-level back-office funds—has shut its doors to creditor EquitasRe-assureds-at-Lloyd's while continuing with full regulatory approval to do business as usual with fresh creditor assureds-at-Lloyd's as if nothing were amiss. This is a perfect example of the old trick of a debtor creating (often using a corporate veil) a surreptitious underclass of creditors whom it will pay (fully or partly) only reluctantly, while incurring fresh liabilities to a more favored class of later creditor.14

Before an Equitas Shortchanging Deal

Given the chaotic state of both law and lawyering15 in relation to the 'Equitas' construct, the presumption should be that the corporation does not understand what it is doing, and has not been fully informed or soundly advised by its own Lloyd's brokers or specialist outside insurance lawyers. It is to be hoped that prudent shareholders, investors and creditors of a substantial U.S. corporate EquitasRe-assured-at-Lloyd's substantially insured at Lloyd's will make the necessary remonstrations before the corporation's CEO, CFO, in-house counsel and their outside insurance lawyers give away the farm for relatively scant cash-in-hand (to satisfy short-term revenue targets, not long-term liabilities) in defiance of the corporation's legal rights against the Lloyd's enterprise.

After an Equitas Shortchanging Deal

Those corporations—personally or through their uninformed bankruptcy trustees—already eviscerated of their insurance asset in settlement or commutation negotiations with Equitas Re will presumably fully and expertly audit the transaction and consider suing relevant lawyers for malpractice, and the relevant local and or Lloyd's brokers for negligence. The more self-congratulatory the tone of the corporation's and or Equitas Re's press releases and annual reports unaccompanied by any independent corroboration of the deal's financial wisdom and legal good sense, the more that investors and creditors should be on their guard. In financial and presentational sleight-of-hand, the corporation can turn to its advantage the same endemic ignorance that caused it to become entrapped at Equitas Re in the first place.

Recourse Declaration

The recent New York injunction against Yukos is an interesting example of timely anticipation and forestalling of unduly hasty asset disposals. Why not an injunction to prevent self-impoverishment and the wanton destruction, at Equitas Re, of creditor securities by an EquitasRe-assured-at-Lloyd's? To restrain their corporation from cosily self-destructing at Equitas Re for a few brass farthings in hand, the simplest, cheapest way may be (in a suitable case) to apply for a recourse declaration to a judge in the Commercial Court16 of the Queen's Bench Division17 of the High Court18 in London19 (notwithstanding the lengths that the English and U.S. establishments may go to protect the Lloyd's enterprise from its own largesse20). The principles of recourse at Lloyd's are the same whatever the governing law of the particular "Lloyd's" insurance contract in issue, and could be considered in an English court as well as in any other, and probably more authoritatively there than anywhere else.21

The court would be asked to declare—and there is presently no legal basis on which it could avoid declaring—that Equitas Re as a reinsurer principal22 is not an appropriate recourse object for any EquitasRe-assured-at-Lloyd's and is otherwise irrelevant to him, at least for as long as the Lloyd's enterprise is regulatorily solvent. The declaration will dispose of any assertion by or on behalf of Equitas Re that the EquitasRe-assured-at-Lloyd's is now obliged to deal with it rather than with the Lloyd's enterprise; will counter attempts to undermine the claimant's legal rights; will reopen the claimant's access to the Lloyd's enterprise for 100 percent of his valid claim when it falls due; will stop the misconceived rush to commute unmatured cover; and will flush into public consciousness a decade of misinformation.

Wording of the Declaration

Rather than perplex an English court by asking it to make a negative declaration, and to spare everyone theoretical inquiry into precisely who or what at Lloyd's does pay a valid claim on an insurance contract sold at Lloyd's, the declaration could be framed, in an uncomplicated case, on the lines of 'that no instrument has effected any transfer of liability from any EquitasRe-reinsured SYA participant [subscribing to the particular insurance contract in issue] to Equitas Re, Equitas Ltd., Equitas Holdings Ltd., Equitas Management Services Ltd., Equitas Policyholders Trustee Limited, or to any other corporate or natural person, body, entity or thing.' That, more or less, ought to stop further shortchanging at Equitas Re.

A declaration as to exactly where the money is buried to pay a valid insurance claim, or commutation, is ordinarily superfluous. An insurer will usually be one readily understandable, standard-form entity with a clear set of assets, however convolutedly distributed in trust funds, letters of credit and other collateralisation. It will not be a nebulous, poorly understood composite of debtors and claims payment securitisation trust and other funds such as at the Lloyd's enterprise, as unconventional as it is misunderstood.

No Recent "Lloyd's" Recourse Case

How the Lloyd's enterprise marshals money in the back office to pay a valid claim on an insurance contract made at Lloyd's is and has long been its own affair, into which no assured-at-Lloyd's ever needed to inquire before the 'Equitas' construct went operational in September 1996 and started deploying its peculiar mythology. So far as the author is aware, no court in recent23 times has adjudicated financial recourse on an insurance contract sold at Lloyd's. Nor is there any established body of legal treatises24 readily available to rebut the notion that Equitas Re is not a legal transferee of liabilities contracted at Lloyd's. Few specialist insurance lawyers have shown willingness to touch the enterprise's intimate recourse complexities, for good reason. It takes time to master them, it cannot be done without acknowledging existing ignorance, and the result may be the exposing of the lawyer's prior malpractice.

The Solus Judicially Considered

The court may also find itself considering the irresistible argument that the EquitasRe-assured's-at-Lloyd's front-office recourse is not to any natural25 solus—including any EquitasRe-reinsured SYA participant solus—and that the only recourse function of any SYA participant, including a long-dead originalis, is to act as the assured's-at-Lloyd's conduit to such funds as the Lloyd's enterprise is able to marshall in its own back office. The natural solus at best supplies cash to the Lloyd's enterprise's back-office cash conveyor belt, including cash which ends up in a variety of back- and mid-office claims payment securitisation trust funds.26 No solus ever pays any claim direct to any assured-at-Lloyd's. What his premium trust fund trustees chose to do with PTF and other relevant back-office funds is their affair outside his immediate control. When the court finally addresses27 and understands the cash conveyor belt at Lloyd's, conceptual solus-level recourse errors in the Chancery Division's Re Yorke jurisprudence28 will then hopefully be corrected. Some FO-MO-BOTM29 and other subtle recourse issues and distinctions30 have already been outlined.31

High Stakes

A declaration from the English High Court that Equitas Re is not a relevant principal, and that the money to pay a claimant EquitasRe-assured-at-Lloyd's is all buried at Lloyd's, will resound at Lloyd's, insurance regulators, legislatures, Lloyd's brokers, self-proclaimed expert insurance lawyers, corporate boardrooms, shareholders and bankruptcy trustees. The stakes in a recourse declaration application are nothing less than the viability of the 'Equitas' construct as the Lloyd's enterprise's front to shortchange corporate America, the continuing viability of some major U.S. corporate EquitasRe-assureds-at-Lloyd's, and the professional reputations of some U.S. insurance lawyers who have counseled or are counseling questionably cheap deals at Equitas Re.

A recourse declaration will recalibrate values at Lloyd's and enable corporate America to fully recover on valid claims from the Lloyd's enterprise. The enterprise's regulatory and actual solvency will come under renewed attack from the very APH liabilities—such of them as have not been legitimately32 picked off by Equitas Re—that caused the enterprise to create Equitas Re as a diversion in the first place. No Financial Services Authority-orchestrated juggling of balance-sheet liabilities between the Lloyd's enterprise and Equitas Re will be able to hide the enterprise's true liability and financial position any further, including from the U.S. Congress (which seems to be under the wholly false impression, or is playing along with the idea, that the enterprise has transferred asbestos-related liabilities to Equitas Re).

One immediate consequence of a correct recourse declaration may be the enterprise's regulatory insolvency. If the enterprise cannot afford to pay its EquitasRe-reinsured liabilities in full as and when they fall due—the apprehension of which gave rise to Equitas Re in the first place—the fairest solution is an express, overt, enterprise-level insolvency process at Lloyd's (such as liquidation, administration or scheme of arrangement33) in which all relevant creditors participate formally, openly and effectively.

At Least a Negotiating Tactic

Perhaps the prospect of the valid-claimant EquitasRe-assured-at-Lloyd's having a day in a properly informed English court will persuade Equitas Re to settle a valid claim at 100 percent without further nonsense, and to offer rational sums for commutation buy-backs. The negotiating advantage to be gained from a credible threat to make a credible recourse declaration application could translate into a very significant sum of money. After all, Equitas Re will be no less mindful than the court that, '[w]here a person insures, I think that he is contracting for the certainty of payment in specified events, and not merely for the certainty of proper consideration being given to his claim that a discretion to make a payment in those events should be exercised in his favour.'34 And it is a given that no fully and accurately informed EquitasRe-assured-at-Lloyd's will do a pre-claim commutation at all absent the assured's (not Equitas Re's) most exceptional cashflow crisis, a pretext which its bankruptcy trustee will want to revisit.

Open Season in the Courts; General Recalibration

Having been shortchanged at Equitas Re, the U.S. corporation—and/or its bankruptcy trustee and creditors—may wish to revisit the information and advice it received at the time from its Lloyd's brokers35 and its specialist outside insurance advisers. U.S. federal and state securities regulators may wish to examine all angles of the 'Equitas' construct. Shareholders of eviscerated U.S. corporations may wish to consider class actions against appropriate corporate officers and advisers who presided over, failed to model, and then camouflaged the bad deal at Equitas Re.


Insurance used to be a way to maximise a corporation's protection from relevant liabilities, and thus maintain investor value. But something has changed since Sept. 3, 1996, when Equitas Re went operational. CFOs in some major U.S. corporations have been selling insurance back to the insurer at a fraction of its value, without taking genuinely expert advice and without appreciating—or else concealing—the harm it will do to the corporation, its shareholders, investors and creditors. The popularity among conventional U.K. insurance companies36 of Companies Act 1985, s.425 schemes of arrangement—and the bizarre notion that a 'solvent' scheme pays 100 percent of the true value of a future unvalued, estimated claim—are not coincidental.

Remember Cuthbert Heath's grandiosity after the 1906 San Francisco earthquake? A leading claims handling agent at Lloyd's, he is said to have instructed U.S. local insurance agents to 'pay all our policy-holders in full irrespective of the terms of their policies.'37 The Lloyd's enterprise's reputation in the United States continues to owe much to that stunt (which if true was almost certainly in deliberate breach of his back-office claims handling contractual authority38). Members of Lloyd's continue to be licensed to sell a variety of insurance products in the surplus lines and reinsurance markets throughout the United States and have to deposit cash in trust as security for full payment. So why are CFOs busy selling potentially hugely valuable insurance cover back to Lloyd's for a fraction of its value? What has changed at Lloyd's? Virtually nothing has structurally changed at Lloyd's, but a lot of bizarre things seem to have gone wrong with the decision-making processes of corporate American EquitasRe-assureds-at-Lloyd's.


1 The Corporation's deferred share entitles it to appoint a so-called "Lloyd's director": see generally Equitas Holdings Ltd.'s articles of association, Art. 61. See generally Equitas Holdings Ltd.'s RA fye March 31, 2005, p.18 ("Lloyd's Appointed Director"); Astor's Equitas Re Handbook, pp. 20-23.

2 See for example RRC 4, §3.7 ('It is hereby acknowledged by each of the parties to this Agreement that...this Agreement is not intended to and does not create any obligations to, or confer any rights upon, Insurance Creditors or any other persons not parties to this Agreement. It is hereby further acknowledged...that this Agreement is not intended to and does not create any third-party beneficiary status in, or confer third-party beneficiary rights upon, Insurance Creditors...'); similarly RRC 5, §2.6. And see also RRC 4, recital (J) ('This Agreement is to take effect as a contract of reinsurance and shall have no effect on the liability of any Name...under any original contract of insurance...').

3 See generally Insolvency Act 1986, Parts IV-VI.

4 See generally Insolvency Act 1986, s.8 and ibid., Sch. B1.

5 See generally Insolvency Act 1986, Part III.

6 See generally Companies Act 1985, s.425.

7 For back-office insolvency of Equitas Re, see for example RRC 4, Sch. 3 and RRC 7. Such matters have no legally binding effect whatever on any EquitasRe-assured-at-Lloyd's.

8 See for example Equitas NLs 1-5, R&Rs 1-14, SOD, etc.

9 See for example SOD, pp.123-4: 'The Society has a number of contingent liabilities in respect of risks under policies allocated to 1992 or prior years of account. If Equitas is unable to pay the 1992 and prior liabilities in full, the Society will be liable to meet any shortfall arising in respect of these policies', etc. The Lloyd's enterprise has since tried to resile from this position with various small print (especially in connection with the so-called 'chain of security') and double talk (especially in relation to the Central Fund; the Council of Lloyd's purported division of the Central Fund into 'Old' and 'New'—see for example Old Central Fund Byelaw and New Central Fund Byelaw—is wholly without legal merit).

10 See the first article in the present series. Those ploys' plausibility is proportional to the enterprise's chronic mystique, the absence before R&R of any need in recent times to ascertain exactly who was actually liable in the front office on an insurance contract made at Lloyd's, and the technical substantive and procedural expertise of the EquitasRe-assured's-at-Lloyd's own lawyers. Plausibility is enhanced by regulator approval, the unhelpfulness of Lloyd's brokers, and such pious trappings at Equitas Re as Equitas Holdings Ltd.'s fancy audited annual report and accounts, and an annual meeting for EquitasRe-reinsured SYA participants (who suppose, intellectually erratically, that their interests are opposed to those of creditor EquitasRe-assureds-at-Lloyd's).

11 The UK Financial Services Authority, which does not know as much as it should about the Lloyd's enterprise, authorises Equitas Re and Equitas Ltd.: see generally www.fsa.gov.uk.

12 See for example then New York State Insurance Commissioner Edward Muhl's address to New York Law School's Center for International Law, Implications of the Reconstruction of Lloyd's of London Symposium, Nov. 6, 1996 (www.nyls.edu/content.php?ID=713):
I was handed a report and it was the [New York Insurance] department's review of the adequacy of the Lloyd's of London U.S. trust fund. Along with this report was an order that the insurance department counsel had put together. If I had signed that order, it would have de-accredited Lloyd's of London as an accredited reinsurer and an accredited excess and surplus lines rendered in New York, basically for their failure to maintain adequate monies in trust. New York is basically a port of entry of Lloyd's for the United States because we oversee all the U.S. trusts. We also control its status as an eligible writer in the United States market as well as in the excess and surplus lines. I asked my senior management if they realized what would happen if I signed the order. The general answer was very simply that Lloyd's would be de-accredited. I responded by saying, "If I sign this order, the insurance world as we know it would change."

13 On the consolidated trading results of underwriting members of Lloyd's—cf. the corporation incorporated by Lloyd's Act 1871, s3 by the name of Lloyd's, which is entirely different—see recently for example Corporation RA fye Dec. 31, 2004.

14 Whereas the usual insolvency scam is for the debtor to hide behind a new company—see classically Broderip v Salomon [1895] 2 Ch. 323, rev'd., Salomon v Salomon and Co. [1897] AC 22 (HL) et al.—the Lloyd's enterprise has set up Equitas Re as a front company to attempt to buy off one class of creditors on the cheap while itself continuing openly, and with full regulatory approval in a number of jurisdictions, to do business as usual and incur fresh debts with another class of creditors whom it supposedly pays in full.

15 For an example of highly defective secondary literature, emanating from the Lloyd's enterprise's own lawyers (whom one would expect to know and convey the full truth), see J. B. Haarlow and H. C. Griffin, Equitas Under English Law, 38 Tort & Ins. L.J. 1 (2003). The author's summary, non-exhaustive reply, "Equitas Under English Law": An English Lawyer Replies, is posted at www.astorlaw.com.

16 See www.courtservice.gov.uk.

17 See www.courtservice.gov.uk.

18 See www.courtservice.gov.uk.

19 On relevant English (there is no such thing as British) civil procedure, see generally Civil Procedure Rules 1998 as amended ('CPR'), a thoroughly unwholesome, badly crafted and drafted, deplorably dumbed-down version of the previously pellucid, perfectly well understood, universally intelligible Rules of the Supreme Court (on which see for example, latterly, Supreme Court Practice 1999 (Sweet & Maxwell, 1998)). CPR, Rule 40.20 envisages, almost incoherently, English courts making binding declarations whether or not any other remedy is applied for: 'The court may make binding declarations whether or not any other remedy is claimed.' Is the provision prescriptive or indicative?

20 The curious result at trial and on appeal in the back-office Lloyd's v Jaffray {2a} [2000] CLC 725 (Cresswell J); appeal dismissed Lloyd's v Jaffray {2b} [2002] EWCA Civ. 1101 (CA) may have engendered assured-side front-office foreboding that English courts' patriotism will overwhelm objectivity, however monumental the Lloyd's enterprise's misbehaviour. The front-office legal technicalia in a recourse declaration application appear so cut and dried, and black and white, that no English court, however reliable, could credibly or creditably subvert them.

21 RRCs 1, 4, 5, 7 and 17 are governed by English law: §§13.1, 25.1, 13, 16 and 14 respectively.

22 See generally RRC 4, §3.

23 The Lloyd's enterprise had a narrow escape—on fraudulent misrepresentation and the Corporation's personal liability—in Industrial Guarantee Corp. v Lloyd's (1924) 19 Lloyd's List Law Reports 78 (Bailhache J).

24 The essential facts are at Astor's Equitas Re Handbook (2002).

25 Cf. the substantial-line corporate solus, to which different front-office recourse dynamics may apply in the particular case.

26 Annotated extracts of key funds are at R. J. Astor, Astor's Equitas Re Handbook (2002).

27 The most recent (and wholly unsuccessful) attempt to get an English court to investigate the cash conveyor belt at Lloyd's appears to be R v Lloyd's ex parte Briggs [1993] 1 Lloyd s Rep. 176 (QB Div. Ct.). (QB Div. Ct.); and see ibid., unreported, May 22, 1992 (QB Div. Ct.).

28 See Re Yorke (deceased); Stone and another v Chataway [1997] 4 All ER 907.

29 See R.J. Astor, "Liability on an Insurance Contract Made at Lloyd's" (New York State Bar Association's Torts, Insurance & Compensation Law Section Journal, Winter 2004, vol. 33, no. 1, p.18).

30 Between, for example, in relation to a particular insurance contract sold at Lloyd's, the original contracting insurer, the present active insurer, the jurisdictionally proper defendant to a particular coverage claim, and the collection-judgment debtor. These roles are not synonymous. The assured-at-Lloyd's working this stuff out for himself, and having to recourse to each relevant solus individually, was and is not part of the deal of buying or (with insurance regulators' approval) selling insurance at Lloyd's, and, not surprisingly, there is no established, well informed or accurate body of knowledge on the subject.

31 See the first article in the present series, under the discussion of Equitas Re's negotiating ploy number five.

32 An interesting question is the undoing of settlements made in bad faith at Equitas Re.

33 English law on enterprise-level financial meltdown at Lloyd's is highly unsatisfactory: see R. J. Astor, "Meltdown at Lloyd's: New Law, Old Problems" (Tolley's Insolvency Law & Practice, December 2005, vol. 21, no. 6, p.191). On relevant European Union law supposedly covering such meltdown, see European Parliament and Council Directive 2001/17/EC (March 19, 2001) on the reorganisation and winding-up of insurance undertakings.

34 Medical Defence Union Ltd. v Department of Trade [1979] 1 Lloyd's Rep. 499, 506 (Megarry V-C). Italics added.

35 It is curious that so few cases have been brought by EquitasRe-assureds-at-Lloyd's against their Lloyd's brokers for negligent claims broking at Equitas Re, including failure to tell the deluded EquitasRe-assured-at-Lloyd's exactly what his recourse really is. At least one major Lloyd's broker—one of the Big Three (Aon, Marsh, Willis)—is on record as advising its U.S. corporate client EquitasRe-assured-at-Lloyd's to 'take what you can get before Equitas goes bust'. This raises interesting issues of fraud and conspiracy.

36 See generally R. J. Astor, Astor's Principles of Insurance Insolvency Law (2006; ISBN 1 873994 61 3) and R. J. Astor, "UK Solvent Schemes of Arrangement: Insurance Creditors and the Court Finally Bite Back" (ABI Journal, vol. 24, no. 7, September 2005).

37 A. Brown, Cuthbert Heath—Maker of the Modern Lloyd's of London (C.E. Heath plc, 1993), p.95. Ibid.: 'Even today American insurance men will tell you that Lloyd's owes its reputation in the United States to that historic gesture.'

38 On non-standard underwriting agency agreements, see for example Hambro v Burnand [1904] 2 KB 10 (CA); Henderson v Merrett Syndicates Ltd. {1c} [1995] 2 AC 145, 171 (Lord Goff).

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Thursday, June 1, 2006