LM-2024-000252 - [2025] EWHC 2704 (Comm)

Mr Miller failed to verify the policy limits and attachment points of the Global Excess Policies.

Mr Miller accepted that he did not review every one of the Global Excess Policies. He stated (witness statement, paragraph 45): “However, I understand David Reston did. The detailed evaluation of the Global Excess Policies, which included verifying their attachments points and limits, was done by David. My focus was on assessing how the attachment points and limits, which David had verified, impacted the allocation calculations applying New Jersey law.” I accept this evidence, which is supported by the contemporaneous documentation that shows that the policies were provided to Mr Reston.

Mr Scorey submitted that it was unreasonable for Mr Miller to attempt to “shift the responsibility” for advice onto Mr Reston, who was not a New Jersey lawyer. I regard that as an unfair criticism. Mr Miller did not suggest that Mr Reston was responsible for advising as to the application of New Jersey law. What he said was that his own advice as to the application of New Jersey law was based (as regards the present matter of policy limits and attachment points) on Mr Reston’s examination of the Global Excess Policies. As Mr Reston was a senior and experienced commercial solicitor and the Global Excess Policies were governed by English law, this division of labour seems to me to be perfectly reasonable.

Further and in any event, the alleged failure on Mr Miller’s and Newark’s part would not have made any difference to the ultimate settlement figure in the TTSA, because the policy limits and attachment points of the Global Excess Policies are not alleged to differ from those relied on by Newark in entering the TTSA.