Former Mainzeal director Dame Jenny Shipley. Photo / Dean Purcell
Former Mainzeal director Dame Jenny Shipley. Photo / Dean Purcell
COMMENT:
There are many Australian trends prevalent in New Zealand which this writer is on board with. For example: the Bunnings snag, tighter shirts for football players, and the obsession with "Kmart hacks" where you repurpose Kmart products.
However, one trend occurring across the ditch that I'm not yet sureabout is the rise and rise of class actions and litigation funding.
As Mainzeal proceeds to the Court of Appeal this week, company directors will be reminded of the law that is evolving about their duties and of the need to understand how the insurance environment has changed since the Mainzeal judgment was handed down in February last year.
The 2019 trial of Mainzeal's directors was always going to bring drama - a former prime minister in the witness box, a mid-trial secret settlement and weeks of excruciating detail on troubled construction projects including Spark Arena, Botany Town Centre and Mobil on the Park, just to name a few.
The post-mortem of the construction company's $115 million collapse was fascinating not just for how the company fell over, but the new law evolving on directors' duties.
I was surprised to find even the insurance aspects of the case intriguing.
In opening submissions, the lawyer for Mainzeal revealed the company's directors and officers insurance cover was set at $20m, with $1m extensions for non-executive directors.
Some of the defendant parties gasped in shock at this revelation, public disclosure of which they deemed inappropriate – your correspondent recalls Jenny Shipley shaking her head. But they eventually said the judge could take this figure into account when determining quantum not liability.
After finding the requisite breaches of directors' duties the judge found four of them liable to the tune of $36m in February 2019.
However, the way he split liability among the defendants is complicated, and both sides are disputing various elements of his calculations.
Investors and directors can speculate all they like over who is going to succeed in the Court of Appeal and of course a trip to this nation's top court is likely.
Regardless of who wins, directors need to be even more aware of the tougher insurance environment for D&O cover due to an increasingly litigious environment, adopted from our Australian cousins, combined with the ultimate uncertainty creator better known as Covid-19.
Rising premiums
In June 2019, months after the Mainzeal decision was handed down, a joint Institute of Directors, Marsh and MinterEllisonRuddWatts report noted that for some Kiwi organisations, premiums had doubled.
The research found that 76 per cent of directors had cover and warned some policies were better than others.
This was all well ahead of the coronavirus pandemic.
Despite temporary reprieves on directors' duties due to Covid-19 – such as a temporary safe harbour - the pandemic as a whole is expected to lead to an increase in legal actions aimed at D&O policies.
Police attend Hobson Gardens at 205 Hobson St, a Mainzeal construction site after the company collapsed in 2013. Photo / NZ Herald
A big element of this stems from our proximity to Australia.
Marsh is yet to issue its 2020 report on the D&O market, but a May market update from the broker said while the initial hardening in the D&O market was evident for dual-listed companies, those listed only on the NZX were now finding things tough.
The Australian shareholder class action environment has blossomed, aided by the Royal Commission into financial services, and now coronavirus.
A clear signal of the class action creep into this country is ASX-listed Omni Bridgeway (formerly IMF), which is taking a class action against CBL Corporation alongside a Kiwi funder.
Amid the lift in actions across the ditch, German insurer AGCS and some Lloyd's syndicates exited the Australian D&O market, impacting capacity.
This has a roll-on effect locally - Marsh reports there are fewer insurers willing to provide cover.
Marsh says insurers are deploying, on average, much less cover. They are more likely to offer $5m to $10m, having previously offered $20m.
Within general cover, side C cover – for listed companies to protect against shareholders' litigation - is becoming restricted.
"The toughest placements in the D&O market are listed accounts with side C coverage, particularly those with ASX or US listing exposure. Insurer appetite and capacity for side C is limited, with some markets no longer offering side C coverage at all," according to the report, authored by Marsh head of financial and professional liability Sharanjit Chaggar.
Institute of Directors general manager Felicity Caird. Picture Supplied
Institute of Directors general manager Felicity Caird says insurance has been a hot topic for directors and prices are only going up.
"The trend that we are seeing across the Tasman has exacerbated and is picking up here. D&O prices absolutely have risen and we are hearing that consistently," she said.
Of course, whether you view a more litigious environment as good or bad depends on whether you are an investor or director or ambulance-chasing lawyer, but all involved should be aware of the insurance implications amid a heightened risk environment.
