Informal Settlement Conferences

By Derek Blackwell

As well as undertaking factual investigations of liability matters, loss adjusters can engage in investigating a claim and running a claim to a resolution whether that be a claim settlement with a third party or denying liability to a third party. As part of this process we regularly attend Informal Settlement Conferences.

The Process

The first part of the process is when information and instructions are received from the insurer. After reviewing this, a factual investigation is carried out so that all of the facts are known and can be substantiated. This is particularly important so that I am well prepared as to what to expect. Contact is then made with the claimant and/or their lawyer with a view of arranging a settlement conference. I always insist that the claimant is there as well as their lawyer so that we can get a better feeling for what the claim is all about. There is nothing like eyeballing someone to know what the truth is likely to be.

I have attended hundreds of settlement conferences during my life as an adjuster. On one occasion I attended the offices of a solicitor in Geelong. His client  had consumed cleaning fluid which was somehow mixed into her morning coffee. On the way to work the claimant became seriously ill and when at work an ambulance was called and she was transported to St Vincent’s Hospital in Melbourne. The outlet where she had purchased her coffee refused to disclose the product data sheet to the treating doctor. She was just about to undergo a stomach pump when the insured’s head office made contact with the hospital, providing all of the necessary details.

Most of the above was not known to me at the time of the conference, or included in the claim notification papers. Adding insult to injury, the insured had mislaid or lost several demands from the third party, making the third party even angrier, and forcing her to the services of the solicitor.

When I arrived at the claimant’s solicitors’ office his file was somewhat larger than mine! I only had instructions to settle for $5000, though it was clear the extent of the injuries suffered were not appreciated at that time. The claimant was thoroughly annoyed, not having received an apology or assistance. Following several phone calls with my instructing principal that matter resolved at $20,000 all inclusive. This was considered by all to be a very fortuitous outcome.

On another occasion I attended the claimant’s solicitor’s office where the “claimant” was both mother and son. The son had crushed his fingers (but fortunately not broken them), in the doorway of a shopping centre. The Insured had sensibly assisted in the resolution process by apologising and delivering a Tonker Truck on the second day of my informal meeting. What was not known to me at the time was that the mother suffered from depressive anxiety disorder and was hospitalised for 2 days as a result of this incident. The matter settled at $3,000 all inclusive.

The above two examples demonstrate the importance of disclosing all information before the settlement process can begin.

In another incident I was acting for an engineering company who had provided defective bearings to a government research vessel who claimed $360,000 for repairs and lost revenue. We identified the bearings that damaged the propeller seals and the vessel had to be dry docked. The claim consisted of both insured and uninsured components of the claim.

An Informal Settlement Conference was held at the government contract shipyard and government representatives were present via telephone conference. After one and a half days negotiating we shook hands at $175,000, which was a great outcome.

Some time ago I was involved in a matter where a child pricked his finger on a syringe in an Adelaide cinema where the syringe had been left on a cinema chair. I made contact with the parents showing empathy and ensuring that all of out of pocket expenses will be met and that we will do whatever we can to assist the medical process. It was an agonising nine months for both the family and the writer until the medical all-clear was given. The parents were clearly relieved, and at my final meeting I admit to having a tear in my eye also. I had a telephone conference with the claims manager, and as a result of that discussion we agreed to fly the whole family (mum and dad, son and daughter) to the Gold Coast Sea World Nara Hotel. Insurers paid for air flights, accommodation, and theme park entries. “Mum and Dad” agreed not to pursue the matter further.

This highlights that by showing empathy for a legitimate claim, and becoming involved in the process, that a good and acceptable outcome can be achieved to the benefit of everyone.

In another matter, and whilst on holiday in Adelaide, I had become aware that a statement of claim had been issued in the magistrate’s court for $80,000 in a matter I was handling for a hire car driver who slipped and fell. An appearance needed to be filed in court and the insurer had asked me to make urgent contact with a solicitor who agreed to an impromptu Informal Settlement Conference. I had no instructions from London Underwriters. It was always understood, though, that when underwriters had been put on notice that it was a matter for settlement on best possible terms rather than attempt to defend it. I lined up lawyers just in case conference “fell over”. Whilst I had no instructions, I counted the claimant’s expectations of $80,000+ costs with an offer of $20,000 all inclusive, which quantum was in my view reasonable. What transpired was that the lawyers that I instructed gained an extra 28 days before we needed to file an appearance in the court.

The liability loss adjusters at Technical Assessing are proactive and can jump in and assist in an urgent situation, and settle while the court process is going through, making the whole process more efficient.

We are also proficient at professional indemnity claims. In one case a building consultant gave a pre-purchase inspection report to a propose purchaser saying everything was fine with the home, except it wasn’t. It was subsiding badly.  We were of the opinion that the insured was clearly negligent despite the insured having the opposing view. At that informal settlement, the third party was represented by both a solicitor and a barrister. Their expectations were of a settlement of well in excess of $100,000, acting on behalf of a third party. We settled at $90,000, based upon inspection reports, claims for out of pocket expenses and repair costs. Had this proceeded, the costs alone could have exceeded this.

The clear advantages of a settlement conference include:

-        A quick and speedy resolution of the claim;

-        At the best possible cost to insurers; and

-        The ability to close a potentially long-tail claim in the most economical way.

All our liability team at Technical Assessing are experienced and knowledgeable in this process, and our clients can feel comfortable with us handling their Informal Settlement Conferences where applicable. 

Who is Insured – and Why?

By Steve Nance 

Unlike most other policies, the Contract Works Policy insures a number of parties. The purpose of this is because there are a number of parties involved in any one construction Project that are required to successfully complete that Project.

The Parties involved extend from the owner of the Project, as well as their financiers and directors/employees, as well as the architect, a bevy of engineers, quantity surveyors, and then you can even throw in a Project Manager. Then there is the main contractor and his consultants, a number of subcontractors, suppliers of materials (some of this being included in the above subcontracts), employees, executive officers, directors, and sometimes the mandatory “any other interested party” in the works.

Historically Insurers have accepted that multiple Insureds are required to be covered under the Contract Works Policy. By far the majority of Insurers have drawn the line at providing professional indemnity cover for the likes of architects and engineers, and as such, usually restrict cover for these parties to their onsite activities. For example, if an engineer knocks over a heat gun which causes a fire and burns the building down, then he would be covered for that. However, if the engineer provided a design which was faulty and caused damage to the building, then cover for the engineer would not be afforded in that instance (albeit that other parties would be covered), and subrogation against the engineer would be available.

Of course the case of GPS and Gardner Willis highlighted the ability of one party to be considered as another. In that case Gardner Willis, a consultant to the Project, was also deemed by the Courts to be a subcontractor, and as such was afforded the rights under the Policy as a subcontractor, which did not have a restriction for onsite activities only, albeit that there was a further clause in the definition of Insured under the Policy which specifically nominated engineers, restricting cover for them to onsite activities. As a result, many policies now have a clause which clarifies that architects, engineers and the like, for the purpose of the Policy, are not considered to be subcontractors as defined.

In this regard waiver of subrogation clauses also (sometimes) clarify this point.

Many policies now attempt to differentiate between the party who is purchasing the Construction Policy, often referred to as the “Named Insured” or “Primary Insured”, and everybody else. Usually the Policy includes the Principal as a “Primary” or “Named” Insured, and then qualifies the cover for the balance of the Insureds.

Many policies now restrict the cover for subcontractors to the extent that insurance is required under contract. In this regard, as to what contract is being referred to can sometimes be confusing. For example, some policies include the term “Insured Contract”, and then define this as being the contract entered into by the Named Insured. This of course will vary depending on the tier of Named Insured. For example, if a Head Contractor, then this will be a contract which was entered into between the Head Contractor and the Principal.  It will often be based on an Australian Standard (AS2124, AS4000, or the like) or other common forms of head contract. Most of these, whether realistic or not, requires the contract works insurance to include all contractors and subcontractors of both the Principal and the Head Contractor.

What then if a Principal contracts with one party, say a builder, to build a structure in which electrical components are to be installed, but then contracts separately with an electrical components manufacturing firm to manufacture and install the components. Does the Policy extend to include the electrical components manufacturer, even though it does not form part of the building contractors works, albeit that the components manufacturer is a “sub” contractor to the Principal.

Another tier of a Named Insured could be, say, a plumbing subcontractor. If this organisation is the Named Insured, then the Insured party would extend to include the Head Contractor (and arguably the Principal) and if the wording is such that subcontractors of the Principal are also covered, then arguably all the subcontractors of the Head Contractor, could be covered.

Indeed, the writer has seen wordings where, although clearly not the intent of the cover, has arguably included a number of parties outside of the scope of works of the subcontractor.

Another issue in relation to the idea of a Named or Principal Insured is that this party is usually defined in the schedule of the Policy. The theory is that if XYZ Constructions Pty Ltd has purchased the insurance Policy, then XYZ Constructions Pty Ltd would be the “Named Insured” in the schedule and that the definition in the Policy would then extend to include the Principals, their subcontractors, suppliers and the like as required.

Over the years, however, a number of schedules sighted by the writer (probably the majority of them) defined the Named Insured as not only the party which was intended to be deemed to be the Named Insured, but also “Principals, contractors and subcontractors, and other parties with an interest in the property”. If therefore the Named Insured in the schedule is defined as all of these parties, then clearly it is arguable that the extent of cover provided to a number of non related entities is also provided.

The other issue in relation to this is of course the requirement of the client. This is often forgotten. Indeed, the writer has had many discussions over the years with various clients who purchased insurance and, as a result of one of their subcontractors’ actions, has caused considerable damage. When the client, often the main contractor, is made aware of the fact that as subcontractors are covered under the Policy, and there is a valid waiver of subrogation clause, that subrogation against the subcontractor won’t be possible, and as such that the loss will go to the client’s loss record, which in turn will affect their future premiums, then this is not always accepted in “acceptable terms”.

Further, especially when subcontracts specifically require subcontractors to purchase their own insurance, as the client requires most of the risk to be transferred to others, the provision of a broad cover for all parties under the Policy seems unrealistic.

Of course the advantage of having everyone insured under the one Policy, without rights of subrogation, means that the Project will have some degree of certainty in relation to continuation, as if there is an occurrence, then a single Policy can respond without the potential ongoing conflict of subrogation between the parties.

From an Insured’s perspective, and in order to both minimise premiums and disruption/confrontation on a construction site, but also to provide the maximum cover should it be required, then not only does significant thought need to be put into who is to be an Insured party under the Policy, but also this needs to be coordinated with the head contract and/or subcontracts to ensure that a consistent and uniform understanding of cover exists.

Loss Adjusting 101 from the Trainee Adjuster

By Tulay Tuzun

In this article we’ve decided to move slightly away from the title ‘Technically Speaking’ to ‘Trainee Adjuster Speaking’!

The aim of this piece is to provide readers with an overview of my educational/professional background and how I ended up becoming a Loss Adjuster, along with my understanding to date of Loss Adjusting.

So you’ve completed your Bachelor of Civil Engineering and decided to move overseas for a year or two… You have all these big dreams about becoming a famous Project Manager but you’ve moved to Turkey where there aren’t as many women in the Engineering industry as there are now, then what? This is the exact question that I was pondering, when I stumbled across a position in Reinsurance Broking. It sounded quite interesting but what on earth is “reinsurance”?

I am sure all those working in the Insurance industry know that many people associate the term insurance with domestic and motor vehicle insurance ONLY, let alone have an understanding of reinsurance! Over a year and a half I gained a thorough understanding of insurance and reinsurance and it did prove to be very interesting role. I had the opportunity to get involved in the reinsurance placements for a fleet of ferries, large airport construction projects, a personal accident program for pilots and political risks’ to name a few.

It was then time for me to move back home and having enjoyed my time in the insurance industry, I decided to continue down this path and create a career for myself in insurance. I worked for several years in the corporate areas of two large broking firms and then became curious about what things were like on the client’s side of the fence. I was able to secure a position at one of the Universities, looking after their insurance program but still didn’t feel it was the right fit.

I found myself back at square one and asking myself, now what? I had approximately eight years experience in the insurance industry, a degree in Civil Engineering and wanted what everybody else wants, a job where I can utilise all of my skills, a job that I enjoy, a job that is constantly challenging and a work place that I actually and want to go to when I wake up in the morning. Most thought that I was dreaming too big and my “wants” were not overly realistic. Well they were after all because they appear to have been fulfilled.  Following several discussions with mentors in the industry, various recruitment consultants and hours of research I found where I thought I may finally fit in – LOSS ADJUSTING!

So what on earth is Loss Adjusting?! By definition a Loss Adjuster is “an insurance agent who assesses the amount of compensation that should be paid after a person has claimed on their insurance policy”. It was also described to me as an investigative type role. I have learnt that it is all of this and so much more.

A Loss Adjuster is a CSI Agent, a shoulder to cry on, an insurer’s eyes and ears, the broker’s informant and an impartial party when dealing with all parties!

I thought I possessed all the skills I would require to become a Loss Adjuster but even continue to improve in this regard. A successful Loss Adjuster needs to have a wide skill set;

• Excellent communication skills, both written and verbal – I thought I possessed good written communication skills but have found out otherwise after having to work with a mentor of English descent (their English language skills are honestly much better than us Aussies!). On a more serious note, a Loss Adjuster is in constant communication with insurers, insureds, brokers, repairers, third parties etc and therefore need to possess excellent communication skills to ensure all parties clearly understand how the claim is progressing

• Ability to think critically – It is “critical” that a Loss Adjuster has this ability in order to achieve the outcome most appropriate for the claim in question. Each and every claim is different; therefore a Loss Adjuster needs to have the ability to improve their own process of thinking

• Problem solving skills – a claim is obviously a “problem” which requires “solving”. A claim may also appear simple on first glance but problems can arise throughout the course of the claim,  and without problem solving skills is not likely to be settled efficiently and effectively

• Organisational skills - A Loss Adjuster will usually manage a large number of claims at the one time, which would have all been lodged at different times and therefore at different stages. It is therefore essential to have excellent organisational skills in order to effectively manage each of the claims and ensure that they are all attended to within a reasonable timeframe

• Excellent time management - This ties in very closely with organisational skills. Again, with numerous claim files open at the one time, a Loss Adjuster needs to be able to effectively manage their time at all times

• People skills – I believe this skill set is the most critical to not only Loss Adjusting but almost all professions. A Loss Adjuster is constantly dealing with ‘people’ and these ‘people’ can sometimes be very frustrated as a result of what has caused them to lodge a claim. It is therefore extremely important to possess these skills and be tactful, sympathetic and patient, especially when dealing with insured’s

Almost two years on and dissimilar to most other roles, I am still constantly learning. In fact it looks like I will continue learning until the day I retire. Every day is a different challenge, I have not come across any claims that are the “same” and don’t think I ever will. There is no set process, each and every claim unfolds differently, one can’t simply follow a Step 1 – 10 approach.

Calling out to all potential Loss Adjusters!!

DE3 vs LEG 2 exclusions

By Gareth Barnes
 

It is common that in the majority of policy wordings that anything defective, whether it be related to design, workmanship or materials is likely to be excluded. The extent to which an exclusion will apply will depend on the type of exclusion used.

There are two types of exclusion which are most common on contract works policies. The first we will look at is the DE3. A common example of this is as follows:

“This Policy excludes loss of or damage to and cost necessary to replace repair or rectify:

1. Property insured which is in a defective condition due to a defect in design plan specification materials or workmanship of such property insured or any part thereof;
2. Property insured lost or damaged to enable the replacement repair or rectification of Property insured excluded by (1) above.

Exclusion (i) above shall not apply to other Property insured which is free of the defective condition but is damaged in consequence thereof.

For the purpose of the Policy and not merely this Exclusion the Property Insured shall not be regarded as lost or damaged solely by virtue of the existence of any defect in design plan specification materials or workmanship in the Property Insured or any part thereof.”

Basically what this says is that the insurer will not cover the repairing or rectifying a defective part (or any property lost or damaged in rectifying the defective part, but will cover the damage to other parts of insured property which is damaged as a result of the said defect.

The second exclusion we will look at is the LEG 2, an example of which is as follows:

“The Insurer(s) shall not be liable for:

All costs rendered necessary by defects of material workmanship design plan or specification and should damage occur to any portion of the Insured Property containing

any of the said defects the cost of replacement or rectification which is hereby excluded is that cost which would have been incurred if replacement or rectification of the Insured Property had been put in hand immediately prior to the said damage.

For the purpose of this policy and not merely this exclusion it is understood and agreed that any portion of the Insured Property shall not be regarded as damaged solely by virtue of the existence of any defect of material workmanship design plan or specification.”

In general terms, what this is saying is that the total cost of rectification is covered however the cost to rectify or repair the defect immediately prior to the loss occurring is the cost that is excluded.

Although both exclusions appear similar they can give very different results when put into practice. It will be noted that the DE exclusion talks about the “part” which is defective and the “parts” damaged, and the LEG exclusion talks about the “cost” and “costs” of the rectification of damage and defect.

It must also be noted that the LEG exclusion also imports a further factor, being time of the damage.

Take for example a defect relating to a chemical bond breaker used in constructing a building out of precast “tilt-up” concrete panels. The common method used involves constructing formwork to the shape of the desired panel, installation of reinforcements and then pouring of concrete into the form work to create the desired panel. Once the process is complete it is repeated, one panel on top of the other, until a number of concrete panels are poured in layers. In this scenario, the lower panel effectively acts as the bottom formwork of the panel poured above.

A chemical “bond breaker” is applied to the upper side of each panel before the pouring of the next to ensure the panels separate with no damage when the upper panel is lifted of the one below.

In this example the concrete panels have not separated properly and as a result they have cracked and broken beyond use. It is later found that the bond breaker chemical used was defective causing the concrete panels to break when separated.

If we are to apply a DE3 exclusion then it is likely that the exclusion would extend only to sourcing and re applying a new non-defective chemical. The cost to rectify the resultant damage (reconstruction of the panels) is likely to be covered.

However if we are to apply the LEG 2 exclusion we need to establish what could have been done to rectify the defect immediately prior to the loss occurring as it is this cost that is excluded. Just because there is a defect in the system, being the defective bond breaker, does not mean that the policy will respond (as clarified in the proviso to the exclusion). Clearly when the panel is lifted, the damage occurs, being the cracking. In this case the Insured would need to apply a non-defective chemical to the concrete prior the panels being separated, however this would be impossible as the panels would first need to be separated to do this. The only way to replace the defective chemical would be to demolish both panels, rebuild the first panel, apply the non-defective chemical, then reconstruct the second panel. Therefore it is likely that it is these costs of rebuilding the panels and reapplying the chemical which is excluded (i.e. the whole claim).

It is clear that when applying the DE3 and LEG 2 exclusions the extent to which a claim is covered can differ considerably. The DE3 is more based on the “parts” of the loss whereas the LEG 2 is more based on the method and “costs” of repair. The above example however is based on applying both exclusions to the same incident.

In the next example we will apply the exclusions to 2 separate claims where the extent of damage and cause of loss are identical but applying the LEG 2 policy can have different results.
It is noticed that a number of tiles have cracked on a newly installed 1^st floor veranda and the whole veranda floor will need to be ripped up and retiled. On closer inspection there appears to be a faulty joist below the floor which has slipped causing the floor to sag and crack the tiles. Immediately prior to the defective joist slipping what would have needed to be done to prevent it or “put it in hand”? As the veranda is on the 1^st floor, the Insured could have obtained access under the veranda, located the faulty joist and replaced it. This is the cost that is to be excluded and the cost to rectify resultant damage (removal and replacement of the tiles, etc) would be covered. It should be noted that in this particular instance if a DE3 exclusion is applied it is likely similar same costs would excluded as with a LEG 2.

However let’s assume that the veranda is on the ground floor. Exactly the same thing happens, however the joist is not accessible from underneath as the veranda is on the ground floor. Therefore in applying a LEG 2 exclusion, immediately prior to the loss the only way to rectify the problem is to rip up the floor to access the defective joist, repair it, then relay the floor. This is the cost that is excluded and as this is what is being claimed then all of the repairs are likely to be excluded. If a DE3 were applied then the cost excluded would just be the cost to rectify the damaged joist once the floor was ripped up and all the other costs to repair and retile the floor are likely to be covered as they are a consequence of the defect.

So based on the repair method required the LEG 2 exclusion can operate in very different ways even when the cause of loss and the extent of damage are similar.

The Importance of Pragmatism

By Andrew Buchanan

It is generally accepted within the Insurance Industry that, all else being equal, claims grow more expensive with age.  Technical arguments always have their place but the bottom-line is that such arguments must always be justified by saving more than they cost to run. The pragmatic approach can often result in less overall expenditure, as illustrated by the following two cases recently adjusted by me.

In the first case, my Principals Insured were Scrap Metal Merchants who had a permanent presence on a Steelworks site owned and operated by a third party.  The Insured controlled a large stock-pile of scrap steel, when they would deposit into vehicles operated by various third-party hauliers using a crane-grab.  An accident occurred when a piece of steel fell from the stockpile and struck a third-party driver, resulting in him sustaining a fractured spine.

The accident was caused by a combination of the stock-pile being too high and a failure to ensure that drivers stayed away from the “danger zone” during the loading operation.  The Insured, as the party in ultimate control of the stockpile, had a clear liability.  The Site Owners also had a liability due to their failure to instruct and direct third-party drivers entering the site.  The Haulier also had a liability given they had not adequately trained/instructed their drivers .

Prior to litigation commencing, I wrote to the Opposing Insurers recommending that liability be shared between the three Insureds/Defendants, but neither Opposing Insurer was willing to compromise and admit even partial responsibility.

In the absence of agreement, the case litigated and I immediately instructed a firm of Solicitors.  By co-incidence the two Opposing Adjusters (without realising) also sent instructions to the same law firm.  The Solicitors quickly identified the conflict of interest and sought my instructions.

Having been the first to instruct, I had the opportunity to tell the Solicitors to cease acting for the other two Defendants, whose Insurers would then have to appoint alternative Solicitors.  Instead I proposed that I would permit the Solicitors to continue to act for all three Insurers provided that agreement could be reached on liability apportionment between the three Defendants within a fortnight.

As a result, a one-third/one-third/one-third share was agreed between the three Defendants/their Insurers within one-month of litigation commencing.  This  prompt agreement, which in turn enabled swift settlement of the claim, resulted in a significant saving in Solicitors’ Costs (both Defendants’ and Claimant’s).

It is strange (and unfortunate) that such a pragmatic solution could not have been reached prior to litigation, and it is highly unlikely that it would have happened for some time had three different firms of Solicitors been appointed.  Had the case gone to Court, it is probable that at least one of the parties would have been held to contribute less than one-third, but that would clearly have been a pyrrhic victory.

The second example involved a Products Liability claim relating to the supply of game-bird feed.  The feed (which was produced on a bespoke basis for the Claimant) was allegedly defective, resulting in the birds rejecting it, which caused them to become under-nourished, allowing disease to set in and thousands of birds to die.

Aside from numerous issues regarding whether the feed was indeed defective and whether it was causative of the birds’ deaths, a significant problem arose due to the Insured having changed Insurer at the worst possible time: the preceding Insurer had been on cover when the Product was supplied to the Claimant and he had first started to feed such to his birds, but their cover terminated (and my Principal’s began) prior to the birds starting to die in significant numbers.

The Operative Clause of both Policies was written on a “Damage Occurring” basis, but when did the damage occur: when the birds started to reject the feed (and started to become malnourished)? At the point when they actually became medically “malnourished” and required veterinary treatment?   When death occurred?  

Clearly no loss or damage occurred straight-away: it would take some time for the lack of food to have a negative impact on the birds’ health/development.  Conversely, it is clear that the birds had sustained “damage” (even if their malnourishment was treatable, their development would have been set back) prior to their deaths.   The situation was further complicated by the fact that the affected birds numbered in the tens of thousands and the “occurrence” date would differ between birds.

So what should the percentage split be between the two Insurers?  There was, quite simply, no precise answer on the available evidence.  Both Insurers could bring to bear justifiable arguments that the other should contribute the lion’s share.

However, it was recognised that the increased legal costs resulting from delay would likely exceed the savings available and both Insurers were persuaded to agree a 50:50% proportionate share of all outlays. 

This spirit of pragmatic compromise extended to both the Insured and Claimant.  Through open discussion it was recognised that the Insured, who had raised debt-recovery proceedings against the Claimant, would be happy to have their outstanding debt (owed by the Claimant for unpaid feed) cleared and that the Claimant would be willing to walk away from his claim in the event the debt was written off: this being a fraction of the sum claimed (as supported by Veterinary Reports).

Ultimately, both the Insured and Claimant seemingly walked away happy with the outcome and each Insurer’s total outlays measured just into five-figure sums (when the potential combined claim value, inclusive of litigation costs had been approaching six-figures).

At Technical Assessing, we often say that our aim is to settle claims for the “right amount”, but the right amount must always take into account cost implications.   Our aim to settle claims quickly and pro-actively with the aim of avoiding unnecessary legal dispute and associated cost.