Far from it, the evidence shows the contrary.ġ23 The next question is whether cl 7.7 is a condition precedent to coverage of the claim under the Policy. On the evidence before me, it could not be said that the settlement figure was objectively assessed and properly calibrated against the context of the entire factual matrix. There is no evidence on the content of the negotiations, whether they were conducted bona fide, or the assessment made then of the prospects of the success of the claim.
Returning to the factors set out in Britestone at, there has been no evidence provided that showed that the Settlement Agreement was reasonable. Critically, Mr Ng also testified that he and the plaintiff actually denied all liability to the Developer and the Builder, that they truly believed that they were not liable to the Builder and Developer, and that he entered the Settlement Agreement, not because he assessed that he or the plaintiff was likely be found liable in Suit 417, but to help the developers recover the money and because he did not have resources to “fight” the claim without the backing of the defendant (see above). This evidence is consistent with the evidence of Mr Patterson-Kane as noted at above. The question of liability between the pursuer and the insured has to be litigated in an action between those two parties and a decree in that action has to be seen as a final determination of that liability so long as the decree stands unreduced.ħ7 Mr Ng’s evidence in both Suit 417 and Suit 376 is that the plaintiff was not at fault for the Damage, and that at the least, the Builder and other parties contributed to the Damage. The insurer cannot normally re-open the question of the amount of the liability in circumstances where he has declined to enter the process and fund the defence to the action or has withdrawn his instructions and funding in the course of the action.
In that event, if the pursuer proceeds with his action and secures decree against the person thought to be insured, the amount of the decree will be determinative of the liability of the insured to the pursuer unless and until that decree is reduced on the grounds of, for example, fraud or collusion. The first is to refuse or withdraw cover in respect of any defence to the pursuer’s action. Where the insurer, on the other hand, forms the view that he is not liable to indemnify his insured, then he still has at least two options.
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