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Legal support - the arbitrator and expert witness

as a reinsurance consultant.


For many, far too many years, I laboured as a reinsurance underwriter, commuting 40 miles each day to an office in the City of London. It was an interesting career (with some ups and many downs) and I enjoyed the camaraderie of the London insurance market in the area around Lime Street, frequented by Lloyd's and other insurers - brokers and underwriters. It was also spiced with much travel to foreign parts (always in the early days first-class throughout) although that did pall after some years. Having in all of that time of about 30 years gained some knowledge of insurance and reinsurance practice (and theory), mainly in non-marine business, and then with my then employer and myself at odds and my wishing to get away from the corporate machine, I chose to go self-employed.

And what a glorious decision that was - it provided me with a well-paid occupation of immense interest. I was able to choose only the people I wished to work with, had complete freedom of action in all my activities and my commuting was reduced considerably, my working from home for the most part. I had no bosses and had no staff to look after. Perfect! On top of that it introduced me to the legal profession, the practitioners within which I found not just naturally intelligent and quick-witted but for the most part extremely pleasant people to boot - solicitors, barristers and judges, all of them.

As a consultant in reinsurance, I gravitated quickly to become an expert witness in legal disputes. This was despite my having seen some years earlier (when I was acting as an arbitrator in a case) how an expert witness was ripped to shreds by a cross-examining Silk - the poor fellow, the witness not the Silk, was never heard of again. I have had my bad moments in the witness box (they still haunt me) but not so bad as was suffered by this chap.

Disputes in reinsurance (there are so many) have usually been settled at arbitration, most contracts having a clause to this effect. To get through some of the doors of lawyers' offices around the City, I tried a ploy of setting up a mediation service, then a way of settling disputes which had hardly been tried in UK. It did the job: I got not a single case of mediation from anyone but I did get to know the lawyers. Business followed swiftly, almost all of it for me to act as expert witness. I also like to think I was ahead of the game in that mediation - "alternative dispute resolution" - has really now come into vogue. But mediation interests me not a whit, I far more enjoy the world of arbitration and litigation. Despite the usual arbitration clause in reinsurance contracts, not always does a written wording exist, and there is a large proportion of disputes which goes to litigation and the High Court.

The expert's job in a case, whether arbitration or litigation, is to provide the Court with independent advice of the practice within the reinsurance community (the "market"). Each of the parties in dispute usually appoints its own expert. Sometimes, the lawyer expects a "hired gun" to support his case but that is not the job of the expert. Nevertheless, an expert would obviously only be appointed by the instructing solicitor if it was found the expert's views assisted the client's case. So it is not unusual for the expert from each side to provide conflicting opinions. That provides a lot of fun (as I find it but it is really a serious business when as in most cases huge sums of money are at stake) when we all turn up in Court.

Frequently, a lawyer needing an expert witness to support a case would call on a recently-retired underwriter, many of whom are gratified to be honoured as regarded so highly. But the job is not for amateurs, one must work at it diligently to be a success and avoid having one's arse being comprehensively booted. With much experience now as an expert, I can say with confidence the key to doing a good job is in knowing the subject thoroughly, not just of reinsurance generally, but of the case material itself. This means wading through, reading and re-reading, myriad bundles of documents from the reinsurance offices (the parties) and all of the Pleadings. Every issue in the Pleadings needs to be dissected and tested in detail, the object being that the opposing side and more particularly the ferocious QC leading the cross-examination can find not a single fault in any of one's opinions.

The other key to success is to find some rapport with the judge or the arbitration tribunal, as the case may be. With the latter, this is normally quite easy. The arbitration tribunal consists usually of three persons, two of whom are likely to be from the reinsurance market itself and therefore likely also to be friendly contemporaries in the business and who can quickly catch on to the technical reinsurance aspects of a case. A judge in the High Court undoubtedly has an advantage as the complete legal professional and perhaps may be more likely to be of an independent mind, some distinguished "market" arbitrators I have known having had the baggage of being unconscionably predisposed on certain aspects. The expert's job is virtually to teach the judge the intricacies of reinsurance as affecting the case but my experience is such that some bridle at what they may regard as being lectured to. I have had the odd poor comment of me in some judgements handed down and of course I think they were all unfair!

Probably the most enjoyable aspect, however, is the sense of theatre in the High Court. A case unfolds like a play, with acts and scenes and the dramatis personae suitably costumed. And the regulars, solicitors, barristers, judge and Court officials act out their parts as in a repertory company. The cast does not include the witnesses. These are just the punters or the members of the audience who get up to play their part on stage as the dupes of the professionals. They are fair game for the production - a bit like the participants in Big Brother perhaps and made to look just as silly.

I jest of course.

I'm also an arbitrator and with the knockabout days of being an expert witness having receded, what work then came my way was mainly as arbitrator - not quite as entertaining as being an expert but still thought-provoking.

I was one of a quartet who founded an arbitration society for insurance and reinsurance and was subsequently the Hon Sec for many years. This is the AIDA Reinsurance & Insurance Arbitration Society (UK), which is rather a mouthful so it is abbreviated to A.R.I.A.S. (UK) - click for its website. That website includes a downloadable copy of the ARIAS Clause and Rules, a list of Members and also particulars of the Panel Members who hold themselves out as fit for acting as arbitrators (or as mediators) in reinsurance disputes. Although retired from the Panel, I have been elected as an Honorary Member of ARIAS.

A source for satisfaction and admiration: another of the instigating ARIAS quartet has now been appointed the Lord Chief Justice of England and Wales, which perhaps shows what a good training-ground ARIAS has been!

My active consultancy service has long since petered out in step with my advancing years - my life-span could be shorter than that of the relevant dispute!



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