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Notices

30/11/2016

The Insurance Compensation Fund (ICF) & Setanta Insurance Company Ltd (in liquidation)

Background

Setanta Insurance Company Ltd (in liquidation) (“Setanta”) is a Maltese incorporated insurance company which sold insurance in Ireland. Setanta was placed into voluntary liquidation in Malta in April 2014 and the liquidation is being carried out under Maltese law.

The liquidator is currently working to value the total cost of outstanding claims and to ascertain the extent to which these claims can be met by the assets of Setanta. The liquidator has advised that this process must be completed and all of the company's liabilities (including claims) must be quantified before any settlements can be paid to claimants. While the process of quantifying claims is still ongoing, the liquidator has indicated that there will be a significant shortfall between available funds and the total value of claims.

For this reason, and given that it is not known when the liquidator will be in a position to make payments, it is intended to make advance applications to the Insurance Compensation Fund ('ICF') on behalf of eligible claimants. The eligibility of any particular claimant will be a matter for the liquidator to determine, in the first instance.

What is the Insurance Compensation Fund?

The operation of the ICF is governed by the Insurance Act 1964, as amended by the Insurance (Amendment) Act 2011.

The ICF provides compensation to eligible claimants of (i) an Irish-authorised insurance company in liquidation; or (ii) an insurance company authorised in the European Union, which carries on business in Ireland, and which has gone into liquidation.

The ICF is maintained and administered under the control of the President of the High Court, acting through the Accountant of the Courts of Justice (the “Accountant”). Payments from the ICF must be approved by the President of the High Court following an application by the Accountant.

Claims covered by the ICF

The following insurance claims are covered by the ICF:

1. First Party Claims
  • a claim by an individual who is a policyholder of the insurer in liquidation;
2. Third Party Claims
  • a claim by an individual against another individual who is a policyholder of the insurer in liquidation;
  • a claim by an individual against a body corporate or unincorporated body of persons which is a policyholder of the insurer in liquidation; and
  • a claim by a body corporate or unincorporated body of persons against an individual that is a policyholder of the insurer in liquidation.

 

The ICF does not cover the following type of claims:

  • claims which are likely to be paid by another body, such as the Motor Insurers’ Bureau of Ireland ('MIBI');
  • claims by body corporates and unincorporated bodies which were policyholders of the insurer in liquidation, unless the liability underlying the claim is to an individual;
  • claims for refund of premiums by any policyholder (whether individual, body corporate or unincorporated body of persons) of the insurer in liquidation.

 

A maximum of 65% of the value of the claim, or €825,000, (whichever is less) can be recovered from the ICF.

The Motor Insurers’ Bureau of Ireland

The MIBI is a non-profit making private company which was incorporated in 1955 by agreement between the Government and Irish motor insurance companies. Its principal role is to compensate victims of road traffic accidents caused by uninsured and unidentified vehicles. The 2009 MIBI Agreement between the MIBI and the Minister for Transport details the rules which apply to persons seeking compensation from the MIBI.

In early 2015, High Court proceedings were instituted by the Accountant to determine the potential liability of the MIBI to pay certain claims under Setanta insurance policies. The Accountant adopted a neutral position in the proceedings and the Law Society of Ireland was appointed by the High Court to act as the ‘applicant’ in the case. The proceedings, Law Society of Ireland v Motor Insurers’ Bureau of Ireland Record No. 2015/85SP, were heard by the High Court in July 2015. The outcome of that case was appealed by the MIBI to the Court of Appeal in September 2015. On 2 March 2016, the Court of Appeal issued a judgment which upheld the High Court judgment and ruled that the MIBI is potentially liable to pay out in respect of certain claims against persons who were insured with Setanta at the time of its entry into liquidation in April 2014. The MIBI has appealed this judgment to the Supreme Court.

The ICF is not able to pay claims unless those claims are unlikely to be paid from another source. Given the on-going uncertainty regarding the role of the MIBI in paying Setanta claims, at this time the ICF intends to apply to the High Court to approve payments only in respect of those claims which will be outside the scope of the MIBI regardless of the outcome of any Supreme Court appeal. In practical terms, this means that the ICF will at this time only make applications in respect of First Party Claims (that is, a claim by an individual who is a policyholder of Setanta). These types of claims are not covered by the 2009 MIBI Agreement referenced above and are, as such, unaffected by the on-going legal proceedings.

Legal costs

Legal costs which may be awarded to a claimant under a court order, Injuries Board order to pay, settlement agreement or taxed order for costs which fall to be paid under a policy of insurance issued by Setanta shall also be covered by the ICF. Legal Costs are considered together with damages to be paid to a claimant from the ICF when applying the maximum limit set out above.

For example, if a claimant was awarded damages of €70,000 and Legal Costs of €30,000, and both amounts were outstanding at the time Setanta went into liquidation, the maximum amount the claimant could be paid by the ICF is €65,000 that is, 65% of €100,000.

If the principal sum owing under a policy of insurance was discharged by the insurer prior to liquidation, but the legal costs element remains unpaid, it is not possible for the legal representative or other creditors of the claimant to apply to the ICF, in their own right, for payment of these legal costs. Application for payment of legal costs out of the ICF must be made by, or on behalf of, the claimant.

Costs and expenses

The ICF will also pay a claimant’s costs and expenses in full which have been incurred in endeavouring to secure payment out of the ICF, provided they are necessarily and reasonably incurred. Therefore, to recover any costs and expenses incurred in endeavouring to secure payment of the amount of the claim, a claimant would have to demonstrate that these costs and expenses were necessary and not excessive. Payment of the costs and expenses incurred by the claimant in endeavouring to secure payment out of the ICF is not a stand-alone right and such payments are only made in conjunction with payment of a principal sum.

Claims process: Setanta

The ICF is under the control of the President of the High Court and he will order that payments be made from the ICF, if he is satisfied that it is appropriate to do so. Applications for payment from the ICF will be made by the Accountant, on behalf of eligible claimants. In the case of Setanta, only claims that have been certified by the liquidator will be brought forward to the High Court by the Accountant.

The Accountant will only make an application to the President of the High Court where he is satisfied that claims qualify under the provisions of the applicable legislation. To assess this, the Accountant will work closely with the liquidator of Setanta to identify eligible claimants. The Accountant has also engaged the services of the State Claims Agency ('SCA') to assist with validating claims before they are brought forward to the High Court. The SCA is a part of the National Treasury Management Agency and is responsible for managing claims made against the State. It is intended that the SCA will carry out due diligence work, on behalf of the Accountant, to ensure that all claims seeking payment from the ICF are in order for payment.

To make a claim against the ICF, it is a prerequisite that the claim is covered by an insurance policy, issued by Setanta, that was valid at the time the incident/accident giving rise to the claim occurred. Therefore, the incident/accident must have occurred prior to 26th May 2014, in respect of private vehicle policies and 29th May 2014 in respect of commercial vehicle policies, as it was on these dates that insurance policies issued by Setanta were cancelled by Setanta’s liquidator. Further, as explained above, only First Party Claims will be processed at this time.

A claim can be based on:

(i)         A court order;

(ii)        An Injuries Board order to pay;

(iii)       A settlement agreement between the claimant and Setanta; and / or

(iv)       A payment in respect of legal costs which has been agreed or taxed in respect of either (i), (ii) or (iii) above and which is covered by the terms and conditions of the applicable policy of insurance issued by Setanta.

How to make a claim:

  1. The first step is to notify Setanta’s liquidator of the claim. Setanta’s liquidator is tasked with the orderly liquidation of Setanta and is required to identify all liabilities of Setanta.

    Contact details are as follows:

    The Liquidator
    Setanta Insurance Company Ltd (In Liquidation)
    c/o Deloitte
    Earlsfort Terrace
    Dublin 2
    Tel: 0818 255 255
    Email: iesetanta@deloitte.ie

  2. Once notified of a claim, Setanta’s Liquidator will proceed to validate whether the claim:
  • is covered by a valid insurance policy issued by Setanta, and
  • is eligible to be paid from the ICF, under the legislation, and
  • is finalised as a result of (i) a Court order; or (ii) an Injuries Board Order to Pay; (iii) a settlement agreement; or (iv) a taxation order, being in place.
  1. The liquidator will only present claims on the ICF to the Accountant that are: (i) eligible for payment out of the ICF; and (ii) have been validated by the SCA.

  2. In accordance with the applicable legislation, the Accountant can only make an application to the ICF once every six months in respect of an insurer in liquidation. For this reason, it is proposed that multiple eligible claims will be batched together to optimise each application to the ICF. Insofar as possible, the criteria for inclusion of claims in each application will be based on the date that the claim was finalised and agreed by Setanta’s liquidator. For example, the first batch of claims to be brought forward to the High Court will include First Party Claims that were finalised (that is, claims which were settled or which have been determined by Court Order, and in which costs have been finalised) in and around the time that Setanta went into liquidation. Subsequent applications will then be processed in chronological order.

  3. Due to the volume of possible claims and the time required to process these claims, it is likely that the Accountant will need to make multiple applications to the High Court, over a number of years, before all claims will be satisfactorily dealt with.

 

Please direct all queries in relation to the status of your claim to Setanta’s liquidator at Tel: 0818 255 255.

First application:

The Accountant, the SCA and Setanta’s liquidator completed its work in preparing its first batch of First Party Claims for inclusion in the first application to the High Court in November 2016. On the 15th November 2016 Mr. Justice Michael White made an order authorising the total payment from the Insurance Compensation Fund of the sum of €608,085.14, in respect of 274 claimants.