New PrivateEdge now provides “end-to-end” Health and Safety protection for individuals and for the company itself.
Health and safety inspections
The HSE and Local Authorities inspect thousands of businesses a year and can enter any workplace without notice to look around, talk to staff, take photos etc. They can target high risk sectors and also do random spot checks. If inspectors find a “material breach” of Health and Safety law they take formal action.
Examples of material breaches might include inadequate staff training for protective equipment, inadequate noise protection, poor maintenance of ladders and scaffolding and if the inspector thinks it’s serious it will be put in it in writing via Improvement Notices, Prohibition Notices or prosecution.
Fees for intervention
Once the breach has been put in writing the HSE can (and do) charge the business a “Fee for Intervention” these are steadily increasing with around 3,000 companies being invoiced a month and costs can run into the thousands - which are covered by new PrivateEdge.
If there has been an accident or injury in the workplace the HSE and Local Authorities also conduct formal investigations. New PrivateEdge covers the costs of legal and professional representation for these investigations - for any individual employed by the company or for the company itself
If an inspection, or a failure to comply with a notice or an investigation leads to a prosecution, then new PrivateEdge covers the individual’s or the company’s professional and legal costs of preparing and conducting a defence. Note the HSE routinely consider disqualifications for directors after a successful prosecution.
New PrivateEdge now covers the Company’s costs of defending any claim against it seeking fines and penalties
A host of potential actions
This is a significant broadening of coverage under new PrivateEdge because it includes potential actions from a host of regulators for example:
Competitions and Markets Authority
(e.g. competition law, cartels, price fixing, bid-rigging)
(e.g. contamination, waste management, water and coastal, conservation)
(e.g. consumer safety, counterfeit goods, labelling, weights and measures)
(data, communications and privacy legislation)
(serious and complex fraud)
(money laundering, bribery)
(insolvency and company law)
(directors’ fiduciary and statuary duties)
Financial Conduct Authority
(marketing of financial products)
Care Quality Commission
(health and social services)
Advertising Standards Authority
(print, online and social media advertising)
(planning appeals, infrastructure applications)
..and a myriad of professional bodies.
New PrivateEdge Crime Module explicitly covers “social engineering” fraud one of the world’s “emerging fraud trends” (BBC 1 Jan 2016) including:
Fraudsters research the names of senior company executives via publicly available information and then impersonate them via false email addresses to coerce employees into making urgent high value cash transfers.
Hacking of e-mail accounts
Fraudsters hacks into an individual’s e-mail account send messages to colleagues for account or password information. The recipient is unaware that the e-mail is not from the person they know, making them more inclined to assist.
Phishing and baiting scenarios
Fraudsters send Emails to employees from apparently legitimate companies and institutions requesting “verification” of sensitive company information, possibly accompanies by warnings of non-compliance.
Response to fictitious questions
Fraudsters may pretend to be responding to a request for help and support (to a computer system for instance) that was never made. Employees may assume the contact to be genuine and may provide sensitive security data , logons, passwords etc.
Bogus rebates and credits
Fraudsters may masquerade as a supplier with a notification from their “accounts department” that a large financial overpayment has been made, and confidential bank and authorisation details are requested so that the monies can be transferred.
New PrivateEdge limits are now on an “Any One Claim” basis for all modules
Some policies may be written on an “aggregate” limit of liability basis where the total amount of cover for claims made in the same year are capped at a pre-agreed amount. This may be problematic if a client has two or more large claims in a single year on a policy as there may be a risk of the policy limit being eroded leaving insufficient coverage for the period.
“Any one claim” limits across the policy
New PrivateEdge provides cover on an “Any One Claim” basis for every cover module that your clients select: D&O, Corporate Legal Liability, Employment Practices Liability, Employee Benefit Plan Liability and Crime. This means that even if your client has multiple claims in the same year, each one is covered by its own separate limit.
All PrivateEdge policyholders are entitled to free telephone legal advice from a top 50 UK law firm (Bond Dickinson, Kennedys and Mills & Reeve) on any issue that they feel might potentially lead to a claim under their PrivateEdge policy.
Any potential issue
Our new PrivateEdge legal panel members are all top 50 law firms and will provide free, confidential telephone best legal advice on any issue that your PrivateEdge clients think may lead to a claim under their policy. The scope of the service is as wide as the new PrivateEdge cover, from contract disputes to trade, professional or regulatory inquiries, see the above conveyor for examples.
To use the service New PrivateEdge clients call the 24-hour legal helpline number, and provide some basic information to identify their policy details and the nature of the of the query. This enables us to assign the right lawyer with expertise in exactly the right field of law to give your client the best advise possible. A call back time will be agreed (usually within 3 hours during normal working hours).
For genuine regulatory and health and safety emergencies we provide a 24/7 call-back within 1 hour.
From enquiry to settlement
If during a discussion our panel lawyers believe a claim on the policy is imminent, then they do have authority to negotiate and settle some claims directly on clients’ behalf if clients so wish. This seamless service from enquiry to settlement minimises disruption for clients and guarantees them expert professional representation. We’ll also waive any policy excess under these circumstances.
Discounted legal services
With such deep understanding of specific industries, our panel firms can also provide a full suite of expert legal services well beyond the scope of clients’ D&O coverage. If they wish to engage any of our panel members in this way then PrivateEdge policyholders are entitled to exclusive discounted rates.
Website and bulletins
The legal helpline is backed up by a comprehensive library on the new PrivateEdge website of guides and templates on a wealth of HR and Health and safety issues identified as being most valuable to businesses. From “A Guide to using Probationary Periods” to “What to do When a HSE Inspector calls” as well as regular bi-weekly bulletins on topical and emerging issues.
With one of the industry’s most experience D&O claims teams we handle a lot of D&O claims. Here are 8 of the most common and impactful types we see throughout the year.
Workplace injuries (employees, visitors, suppliers, customers) are a major cause of D&O claims. HSE inspectors have great powers conducting post-accident investigations. They can interview whoever they wish and remove whatever evidence they see fit (eg PCs, records etc). Expert legal and professional representation for those involved in questioning and interviews is essential – and these costs are covered by new PrivateEdge.
The Health and Executive may well interview more than one person and each one may need their own separate legal representation so costs can multiply
Business insolvencies are another potentially expensive source of D&O claims. The company’s transactions and the actions of individual directors prior to the business going insolvent will be scrutinised and the costs of expert preparation and representation can mount up. Damages to creditors which individuals may be ordered to pay after an insolvency can also eat well into the available policy limits.
It’s not unusual for a business insolvency to be followed by disqualification proceedings against individual directors which can add even time and cost to the D&O claim
D&O doesn’t cover deliberate fraudulent acts but does cover the defence of criminal allegations (and investigations leading up to them) which can be extremely expensive. SFO cases are especially so as cases are usually very detailed prepared over a long period and need a great deal of time and expense to examine documentation and defend with costs escalating for example for instructing solicitor, junior counsel, senior counsel and expert witnesses.
A feature of criminal cases is that defendants, or groups of defendants, are often “conflicted” pointing fingers at each other which means they require separate legal counsel.
Defamation actions against our policyholders may be relatively small scale in terms of the financial amounts compared to criminal actions but we see several of them. These cases are often bitterly pursued by the individuals or companies who can feel very aggrieved by comments that have allegedly been made or actions allegedly taken against them. They need to be handled very quickly and very sensitively to avoid escalation.
One area of potential concern for defamation cases is the unguarded use of emails and increasingly Facebook and Twitter and other Social Media platforms
Insured verses insured
Although some corporate clients are surprised to learn it, the origins of D&O are to protect individual directors and sometimes this means defending individual directors against allegations they face from their own companies or shareholders. Needless to say these cases can be extremely acrimonious on both sides – and reinforce the need for expert representation and advice which new PrivateEdge is there to pay for.
“I v I” claims may be complicated by counter claims, and we know instances where two claims in “different directions” are running concurrently between the same parties and great care has to be taken with regard to completely separate claims handling procedures
Disputes with suppliers and customers are sub-limited under the policy (usually to £100,000) but we see several of them often around non-fulfilment of contracts (for instance companies going insolvent and being unable to meet manufacturing or delivery commitments) to customers, or sometimes termination of contracts before the contractual period because of performance issues. New PrivateEdge funds the client’s reasonable defence costs in these situations.
Although new PrivateEdge funds the costs of defending contract disputes with suppliers and customers, it does not cover the delivery of professional services which are explicitly excluded and covered under a Professional indemnity policy
Investigations against individuals
Investigations by regulators against individuals remains a consistent and costly source of D&O claims. The new PrivateEdge wording is very broad in this respect. It provides full policy limit cover for the professional and legal fees, expenses and costs for individuals to respond to any request for a meeting or for information from any regulator or trade body.
Investigations by official regulators and professional associations may well be full blown legal affairs requiring the costs of expert legal preparation and representation
Privacy and data breaches
Privacy and data protection laws are an emerging area in the UK – with courts starting to award substantial amounts of compensation for breaches. In particular, we have seen several disputes that have escalated into D&O claims when management have accessed personal e-mails and messages through an employee’s work phone or computer.
Looking forward, the increased blurring between work and personal devices is likely to create growing risk in this area – with a mixture of company data being stored on personal devices and personal data being stored on company devices. A company, or its management, is likely to need expert legal input to steer them through any claims they receive on this front.
A D&O claim can be a difficult experience for clients, but not for us because we’ve seen them all before. We’re there to guide and reassure clients, with our claims expertise and the financial resources provided by new PrivateEdge. Here are some of the client pain-points we’re used to dealing with.
Huge financial amounts
Sometimes claimants’ solicitors can take a “scattergun approach” to naming people in proceedings. This can be a shock to managers and supervisors especially as some of the financial amounts claimed and defence costs can be very high (sometimes six figures). New PrivateEdge provides the resources to instruct an expert law firm to defend and guide them that may not otherwise have been affordable.
Claims pursuing into retirement
Years can pass between something a director might have done and a legal response – often 6 years but sometimes more such as fraud, latent defects or acts committed overseas and actions can follow directors into retirement. New PrivateEdge covers retired directors throughout their lifetime for their actions while they were at work even if their former employers do not renew their PrivateEdge policy.
Even Directors of Limited Liability Companies can be personally liable for corporate debts. eg the actions of directors are scrutinised after an insolvency and if it’s held that directors traded to the detriment of creditors they can be personally liable for the debts. New PrivateEdge won’t cover fraud but does cover directors defence costs and damages to creditors in these situations.
Investigations and court proceedings can be very intimidating affairs for directors and it’s essential they are thoroughly prepared. Mock interviews can help directors rehearse and bring out the most important points in their defence – as well as preparing them for being questioned by tough regulators (and hearing their rights read to them for example) which is funded by new PrivateEdge.
Being a good director isn’t the same as being a good defendant. Many are strong-willed individuals who want to proactively shape and improve situations, but in an “inquisitorial” environment they must tread carefully with expert guidance, particularly when facing difficult allegations by skilled investigators or prosecutors - which is funded by new PrivateEdge.
A long challenging road
Claims can go on for a long time – years for regulatory claims and SFO proceedings. This can be very stressful for directors who are the subjects of the proceedings, and very expensive which is why it is so important to have D&O insurance in place to stand by them, to help them through. The lawyers are there to do the best for directors in this position – and the policy is there to pay for those lawyers.
A safety net
New PrivateEdge provides a fighting fund to provide expert advice and defence for claims where there is an enormous amount at stake (even loss of liberty). It helps claims to be challenged effectively with high quality professional support. We can’t stop directors being sued, but we can provide an essential safety net for those trying to carry out their jobs in the best way possible.
A bad rep
One consequence of a D&O claim which according to our research really worries SMEs in the PR fallout and reputational damage it can cause with employees, suppliers, customers and peers. New PrivateEdge not only covers the costs to prevent or mitigate a claim but also the costs of Public Relations specialists to minimise the negative publicity from a claim.
Finally, just because an accusation against one of our clients is untrue, it still has to be vigorously defended. We know that mischievous or even malicious actions can be intensely stressful and time consuming for the individuals involved and it can be a great reassurance to a director knowing that he or she has the biggest and the best in their corner fighting for them.
New PrivateEdge is ideal not just for mid-range and larger private companies but for smaller ones as well – many of whom may not currently purchase D&O insurance. Here are some common objections – and responses to overcome them.
We are too small to worry about D&O
Smaller companies may have less resources to support directors decision making process and pay for their defence and representation costs if things go wrong. There may be little risk management infrastructure (such in-house legal and compliance teams). While for a small company a D&O claim against one of its Directors can be huge distraction from the day to day running of business.
We are a family run business
In fact we see family businesses as relatively high risk with potential factors such as family sibling rivalries, divorce and bankruptcy. Family businesses are not immune to claims from regulators, suppliers, competitors, creditors or unfounded & mischievous allegations. The added value services of free legal advice and the suite of free HR documents and procedures can be especially useful.
We have very loyal customers and staff, so can’t see any claims coming in
This may be the case but what about claims from regulators, investors, competitors, shareholders. What will be the impact on prospective senior employees if you don’t carry D&O insurance? What about the risk of insolvency and the possible personal liabilities and what about future changes as your senior leaders retire with no management liability protection?
We have legal expenses insurance
Legal expenses policies are not suitable substitutes for D&O policies. They often contain “Prospect of Success” clauses. The limits are tiny in comparison with D&O and would be inadequate for any kind of protracted litigation, often with very small sub limits. They often exclude disputes in arising in first 90 or 180 days of inception the policy and they usually prescribe the solicitor to be used.
We have very robust health and safety, HR and management in place
Robust practices certainly help assist with the result of the claim but do not prevent the claim being made in the first place. Employment claims are just one of the many exposures that companies and their directors face – such as regulatory enquiries, creditors actions, insolvency risks and liquidators, official and trade bodies and shareholders. This app contains many more examples.
New PrivateEdge is a “modular” product at its heart lies D&O but it can be customised for your clients with optional Security Response, Employment Practices Liability, Pension Trustee and Employee Benefit Plan Liability and Crime covers.
Employment practices liability
New PrivateEdge’s Employment Practice Liability module covers damages, settlements and defence costs for a wide range of employment practice violations. We cover claims from employees past and present, from visitors like customers or suppliers and we cover the costs of employment investigations (like equal opportunities or racial equality).
Pension trustee and employee benefit plan liability
We’ve broadened our Pension Trustee Liability so it doesn’t just cover pension trustees but also any past or present company employee benefit or welfare plan. We know that regulators demand a rapid response and one cover highlight is the emergency defence costs so that companies and trustees can get the legal assistance to respond immediately to the regulator, even if they can’t contact us first.
Our optional crime module protects the client’s balance sheet from fraudulent or dishonest activities carried out by employees or outside third parties, or collusion between internal staff and external parties such as suppliers. Cover includes the costs of specialist pre-investigative services to help clients establish and quantify their loss.
Our optional Security Response module provides 24/7 access to expert security consultants who will respond immediately to any threat or concern. Utilise it as your own virtual security department. The Security Response solution is designed with small and medium businesses in mind. It provides access to security professionals with broad expertise to advise on a wide range of crises.
New PrivateEdge policyholders are entitled to a free credit management system “AIG Trade+” to give them greater visibility of their receivables portfolio and their individual customer’s credit risk
A granular view
The system is fed by a regular weekly upload of the clients invoice data. It is a simple user-friendly “drag and drop” process, and after the first upload the software remembers the clients system, details and columns for subsequent uploads. The information at individual invoice level gives a powerful granular view of individual buyer’s and the overall portfolios’ credit performance.
The system’s dashboards are easy and intuitive to interpret, clearly displaying the amounts and the age of debt, so clients can view historical trends within their overall portfolio and at buyer level. The dashboards also profile the client’s ledger showing average terms, average days beyond terms, average invoice to cash timescales and issues visible alerts for buyers who owe past due payments.
By capturing a regular feed of all buyers invoice and payment the system calculate recommended credit limits for each of the client’s individual buyers. This means that clients can not only see who they are trading with and how, but also means they can assess where they are overtrading with certain clients and where there is headroom to increase trading.
Trade Credit insurance
If clients wish they can use the system to request an immediate quotation for trade credit insurance for any of their buyers. Clients already know the available credit limit we are prepared to provide for each of their buyers as that is clearly displayed on the dashboard.