Mark Chudleigh, managing partner of Kennedys’ Bermuda office, has over 30 years of commercial litigation and insurance experience including in the City of London, the United States and Bermuda. He maintains an international practice and frequently represents clients on multi-jurisdictional matters, particularly involving the United States, having been admitted as an attorney in the State of California in 1998. His contentious insurance practice spans almost all classes of business and includes matters involving entities in Bermuda, other British Overseas Territories, the United States, Europe and Asia.
What qualities make for an effective insurance lawyer in today’s climate?
Insurance lawyers must become part of the insurance industry and the market in which they practice, they should understand their clients’ business, unique challenges and needs and they should ride the market cycles alongside the brokers and underwriters. We are now moving into a hard market where, based on past experience, insurers may be emboldened to make claims decisions they may not have taken in times of surplus capital. However, the soft market will return, memories are long, relationships continue to be important and insurance lawyers must retain the soft skills they have developed over the past decade. The claims function continues to be a service and, as part of that service, insurance lawyers must continue to be clear, polite and professional when dealing with our clients’ customers.
How do you prepare for multinational insurance disputes?
I educate myself on the relevant jurisdiction. You do not need to be qualified in a particular jurisdiction to gain a familiarity with its laws. It is difficult to guide co-counsel from another country through your laws and procedures without at least a basic understanding of his or her country’s laws and procedures. Also, never assume that your jurisdiction’s way of doing things is the only way or the best way. Be receptive to alternative views and approaches.
What challenges did you face when setting up your own firm?
When I set up in Bermuda in 2006 (having until then worked in London) I faced hostility from certain sectors of the legal establishment who used their positons on Bermuda’s Bar Council to try to prevent me from operating, perceiving my “onshore” firm as a competitive threat. I persevered, integrated and in time became part of that establishment. I even served on the Bar Council !
How has the increase in corporate investigations around the world impacted the number and nature of D&O claims you are seeing?
Investigations by regulators and liquidators of failed companies comprise over half of the matters we handle on behalf of D&O insurers and their D&O insureds, including in Bermuda, Cayman and BVI. It is not just the number of investigations that has increased but the scale of investigations, particularly by regulators who are under great international pressure to police their jurisdiction and to demonstrate effectiveness.
How will Brexit and the 2020 US elections impact the insurance market?
Bermuda will undoubtedly miss having the UK represent its interests at the EU table. But Bermuda achieved regulatory equivalence on its own and I expect the trading relationship with the EU to remain strong. Often Bermuda becomes a political football in the run-up to a US presidential election but we have yet to see that in 2020. I am hopeful that the United States’ authorities have a better appreciation of the value that the Bermuda market brings by providing substantial (re)insurance capacity to meet a host of US liabilities, including from natural disasters and the COVID-19 pandemic.
As insurance companies look to provide products with a preventative approach as opposed to the traditional protective model, how must lawyers adapt their own approach to advising clients?
To me, the concept of insurers providing risk management and other preventative services to their insureds is nothing new. I regularly provide corporate policyholders with guidance on managing their exposures, particularly as regards the risks faced by company directors. In my experience, it is not a particularly remunerative practice area but it is rewarding and gives me an opportunity to get to know insureds’ businesses in a way that is rarely possible when a claim is pending.
In your opinion, what will be the long-term effects of the Covid-19 pandemic on the insurance industry?
We will see a harder and a longer hard market as a result. Without question. I am also confident that we will see new (re)insurers being formed (several will choose Bermuda) and these companies are likely to embrace, from the outset, the modern working practices that have been honed during the pandemic-enforced lockdown. The ability of the insurance industry to adapt and to sense opportunity in adversity has been vividly illustrated during the pandemic and, despite some bad press over the response to business interruption claims, I expect there to be greater awareness of the important role that insurance plays in our societies and a greater demand for the security it offers.
Looking back over your career, what has been your proudest achievement?
Never putting my interests or the firm’s before those of my clients. It is my guiding principle and not just because it is the ethical thing to do but because, in the long run, if you earn a reputation for integrity then clients will come to your door and are more likely to return the next time they need a lawyer.