2021 Litigation Forecast - D&O Insurance: Increasingly costly and uncertain

Many companies and their directors, particularly duallisted companies whose shares are quoted on both the NZX and ASX, have been astonished at the difficulty and cost of renewing their Directors and Officers (D&O) insurance in the past year. This is a trend that we view as likely to continue, particularly at the top end of the market, as insurers face an uncertain and increasingly risky claims environment while at the same time, capacity in the London insurance market continues to tighten. We are working with large, listed companies that are actively exploring ways to manage or limit their D&O insurance expenditure.

What is happening

Many companies are experiencing ‘shock’ D&O premium increases that in some instances have been many times multiples of their previous year’s premiums. Dual listed companies have been particularly affected and some are reported to have considered de-listing in Australia in order to bring their costs under control. Companies that are listed only in New Zealand are also experiencing substantial premium increases and some are having difficulty arranging replacement cover if their insurers are among those that have left the D&O market.

There are a number of reasons for this, which when combined create a ‘perfect storm’.

The exponential growth in the number and size of funded securities claims that has been experienced in Australia in recent years.

Insurers rely upon historical trends and informed assumptions for actuarial calculations that inform their estimates of likely claims, to set premiums. They have been caught off guard by a sudden and exponential increase in the number of securities claims against directors brought as group or ‘class’ actions on behalf of large numbers of affected investors, funded by third party litigation funders and supported by specialist lawyers.
The cost of dealing with these claims has increased proportionately, as has, necessarily, premium costs. The known rise in claims costs is exacerbated by insurers’ increasing uncertainty as to what the future holds, which has caused them to increase premiums further to guard against unknown further increases in the number and size of claims.

The cost of dealing with funded securities claims has increased proportionately, as have premium costs.

A D&O premium base that historically has not kept up with claims costs.

D&O insurance was traditionally a relatively low-cost addition to a company’s suite of policies that was offered as part of an overall package. In the distant past, directors were obliged to pay for the cost of this insurance themselves, which encouraged insurers to offer it at a very low cost on the basis that they would earn their profits from the premiums for the wider policy suite. Insurers now have no option but to charge D&O premiums that fairly reflect the risk of claims and losses

D&O insurance was traditionally a relatively low-cost addition to a company’s suite of policies.

Insurers’ apprehension that the New Zealand legal environment is beginning to adopt some of the features of the Australian environment that has resulted in increased numbers of group litigation proceedings and securities claims.

As we discuss further in the next article, the New Zealand Supreme Court has recently approved ‘opt out’ representatives or ‘class’ actions where a law firm and a litigation funder may act on behalf of a large group of investors or other affected persons without their express consent, provided they do not object, thus making it considerably easier to bring a claim on behalf of a large number of people with the same interest in a claim. These actions lend themselves particularly to securities claims where investors may have been misled, or continuous disclosure claims where investors may have overpaid or been underpaid for shares. In addition, litigation funding by third parties for a share of the proceeds of an action is increasingly accepted.

We are beginning to see professional litigation funders being increasingly active, although we have not seen firms of class action lawyers emerge with the level of sophistication that exists in Australia.
While class actions in New Zealand remain relatively rare, they are increasing in number. In recent years, there have been group actions against the directors of a carpet manufacturer, Feltex; an insurer, Southern Response; a building supply company, James Hardie; the Ministry of Primary Industries; the directors of Mainzeal and the former directors of CBL Insurance. While New Zealand does not yet have a sophisticated class action regime, the Law Commission’s class action reform project has recently been reinvigorated.

However, important differences remain between New Zealand and Australia. New Zealand is a much smaller market and claims are for the large part commensurately smaller, so they are less likely to justify an investment by lawyers and funders. New Zealand has activist regulators in the NZX and the FMA which investigate and seek remedies for continuous disclosure breaches and other securities breaches, rather than leaving them to the private funding market. This may have the effect of discouraging private litigants when the regulators do not view a case as worthwhile.

Dual-listed companies are not as exposed to Australian litigation as it might appear, as they are obliged to comply with New Zealand laws rather than Australian laws and litigation against them is likely to need to be brought in New Zealand. These and other features mean that New Zealand is less able to support a community of lawyers who specialise in claims of this nature. While there have been recent high-profile actions such as the proceedings against the Mainzeal directors, in which our firm acted for the successful plaintiffs (with the Court of Appeal decision yet to be released), they tend to be liquidators’ actions that have traditionally been pursued and funded in any event.


The reduction in capacity in insurance markets for D&O risk

Lloyd’s of London has traditionally issued a large proportion of the higher ‘layers’ of high value New Zealand D&O policies, where the primary layer has been written locally and excess layers have been written out of London. This capacity is reducing as Lloyd’s has increasingly required its syndicates to demonstrate their solvency and their ability to operate profitably, failing which their books have been closed. This has resulted, inevitably, in a reduction of capacity and a corresponding reduction of availability of cover and increasing premiums.


Regulatory actions against companies and directors appear to be increasing.

It is also relevant that other liability risks are perceived as increasing. Regulatory actions against companies and directors appear to be on the increase, with the FMA being increasingly well-funded and well-staffed. The FMA’s focus remains on the conduct of directors and senior management. Following its Bank Conduct and Culture Review in November 2018, the FMA and the Reserve Bank of New Zealand said that they would be:

  • “.. expecting to see much deeper accountability of boards, executives and senior managers. We will be looking for progress and clear evidence of change and want to see this become part of the ethos of all banks in New Zealand.”

New risks are also emerging which are difficult to predict. In a recent article, three judges of the New Zealand Supreme Court, writing on Climate Change and the Law, addressed directors’ risks with the following statement:

‘Directors have a duty to consider the “best interests” of the company in all of the colloquium jurisdictions. It remains to be seen how climate change impacts that duty. As we discuss, there have already been cases in Australia and the United Kingdom relying on corporate governance and company law to hold companies to account for their climate impacts and actions.’

While acknowledging that New Zealand companies legislation does not expressly require directors to consider the impact of operations upon the environment, the judges said that:

‘As a material financial risk, directors are accountable under care and diligence duties to take account of the financial consequences of climate change and this applies whatever model of corporate governance is subscribed to. Further, the “business judgement rule” would not protect directors where the legal risk stems from inadequate information or lack of inquiry. 

What companies may do to improve their positions

Insurers need to understand the specific risks that a company and its directors face and how they are managing those risks, to build confidence that they may accurately assess the risk of losses. We find that insurers often assume initially that New Zealand companies face the same risks as their Australian counterparts when this is not the case. We have seen positive outcomes where companies and their directors have presented insurers with a well-considered statement of the risks they apprehend and how they are addressing them, with an explanation, if appropriate, of why those risks are not viewed as comparable with those faced by companies in Australia or elsewhere.

Read the full forecast

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