Insurance Litigation 2026 Comparisons

The most frequent causes of insurance disputes in England and Wales remain issues of policy interpretation, late notification, aggregation, exclusions, and disputes over compliance with policy conditions. The English Courts have consistently upheld that the approach to policy interpretation is a literalist one, based on the plain and ordinary meaning of the words used from the perspective of an ordinary policyholder. This can sometimes lead to an outcome which is uncommercial for one of the parties. These issues arise across a broad range of business lines, including property, business interruption, construction all risks, professional indemnity, directors’ and officers’ insurance, cyber, public liability and reinsurance.

In recent years, the nature of insurance disputes has become increasingly shaped by systemic and market-wide events. COVID-19 business interruption litigation, Russian aviation losses, cyber incidents, sanctions, cladding and fire safety claims, supply chain disruption and climate-related losses have all generated complex questions of causation, aggregation and policy response.

Policy wording remains central to insurance litigation in England and Wales. The courts interpret insurance policies according to ordinary contractual principles, with the starting point being the natural and ordinary meaning of the words used, read in the context of the policy as a whole and the factual and commercial background known to the parties at the time of contracting.

Recurring areas of contention include notification clauses, conditions precedent, aggregation wording and exclusions. The precise wording of the policy is often determinative, particularly in commercial insurance where the courts are generally reluctant to depart from clear contractual language, even where the outcome may be commercially unattractive to one party. Issues can arise from the insurance industry being slow to adapt its wording following the identification of ambiguous provisions or the court’s finding that certain provisions do not operate in the way the insurer or the policyholder may have intended.

Insurance disputes are commonly resolved through pre-action correspondence, negotiation, mediation or other forms of ADR before formal proceedings are issued. Litigation or arbitration remains important for high-value claims, strategically significant disputes, or cases where the parties require judicial determination of a point of construction or principle.

For policyholders, early settlement may provide certainty, preserve commercial relationships and reduce the cost burden of litigation. For insurers, settlement may allow exposure to be controlled and precedent risk avoided. However, where a coverage issue affects a wider portfolio of claims or turns on wording used across the market, insurers may be more inclined to defend the position through formal proceedings. A stark example of that was the COVID-19 Business Interruption Litigation.

The general position in the English courts is that the losing party pays the winner’s costs, and therefore any party in litigation has to account for the risk of paying adverse costs as well as their own legal costs.

In commercial insurance and reinsurance, the parties’ express choice of law is generally respected. English law is common in London market placements, especially in reinsurance, marine, aviation, energy, financial lines and multinational programmes.

Disputes tend to arise where a programme contains several documents with inconsistent wording. The practical focus is therefore on identifying what the parties actually agreed across the slip, schedule, policy wording, endorsements and any hierarchy clause.

Jurisdiction clauses are generally upheld, particularly between sophisticated commercial parties. Exclusive English jurisdiction clauses are common in London market policies, reinsurance and complex international programmes.

The main practical issue is inconsistency between documents or layers. Where one document refers to court jurisdiction and another refers to arbitration, forum disputes can become a significant preliminary battleground before the parties reach the underlying coverage issue.

Cross-border disputes commonly involve issues of governing law, jurisdiction, service, parallel proceedings, sanctions, evidence located abroad and enforcement. These issues arise frequently in reinsurance, aviation, marine, energy, cyber, political risk and multinational liability programmes.

Practical difficulties arise because the insured risk, insured entity, brokers, insurers, reinsurers, witnesses and documents may be located in different jurisdictions. The position is especially complex where local policies sit beneath a global master policy.

English courts are prepared to grant anti-suit relief to restrain proceedings brought in breach of exclusive jurisdiction or arbitration agreements. The remedy is discretionary, but the courts generally place significant weight on holding parties to their agreed dispute resolution mechanism.

This can be important in insurance and reinsurance where one party seeks to litigate in a forum perceived to be more favourable, despite a clause requiring English court proceedings or arbitration.

AI-related insurance disputes remain in their early stages in England and Wales. The likely jurisdictional difficulty is that AI systems may be developed, trained, hosted and deployed across several jurisdictions, while the alleged harm may arise elsewhere.

Arbitration clauses in insurance and reinsurance contracts are recognised and generally upheld by the English courts. Arbitration is particularly common in reinsurance, Bermuda Form policies, marine, energy, political risk and complex international insurance programmes.

Where a policy contains an arbitration clause, the English courts will ordinarily expect the parties to follow that mechanism. It is not uncommon for the arbitration clause to only apply in specific circumstances, such as where cover has been accepted but there is a dispute regarding the amount of the indemnity.

Arbitral awards are generally enforceable in England and Wales. Foreign awards are commonly enforced under the New York Convention framework, subject to limited grounds for resisting enforcement.

Arbitration is most commonly used in sophisticated commercial insurance and reinsurance disputes, rather than ordinary consumer or small business coverage disputes. It is particularly attractive where confidentiality, specialist decision-makers, procedural flexibility and international enforceability are important.

The principal advantages are privacy, specialist tribunal selection and flexibility. The main disadvantages are cost, limited appeal rights, and the fact that arbitral awards do not usually create public precedent. This can be significant in insurance disputes where market participants may benefit from authoritative guidance on recurring policy wordings.

Coverage disputes in England and Wales are increasingly being driven by losses that do not fit neatly within traditional policy structures. Whilst disputes concerning notification, exclusions and policy interpretation remain commonplace, recent years have seen a marked increase in claims arising from cyber incidents, systemic events, geopolitical instability, building safety issues and climate-related exposures. These losses frequently test policy wordings that were not originally drafted with such risks in mind.

A notable feature of modern coverage disputes is the increasing tension between policyholders seeking cover for novel loss scenarios and insurers attempting to define and limit their exposure through more detailed exclusions and coverage triggers. As a result, many disputes now focus less on whether a loss occurred and more on how it should be characterised for the purposes of the policy. Questions of causation, aggregation, policy trigger and the interaction between different layers of insurance have therefore assumed increased significance.

There are some areas of insurance that are prone to issues where there is not necessarily a binary answer. For example, in construction and property disputes, the issue as to whether something is merely defective (which would not be covered by traditional CAR (Contractors All Risks) or material damage policies) or has suffered damage (which would be covered). Those types of disputes are capable of resolution provided there is sensible engagement on both sides of the market.

At the same time, there has been a growing willingness amongst policyholders to challenge declinatures and pursue coverage litigation. The substantial body of case law generated from COVID-19 business interruption claims demonstrated both the willingness of policyholders to litigate and the courts’ preparedness to closely scrutinise insurer coverage positions. That trend has continued across other classes of business, particularly where systemic events affect large numbers of insureds simultaneously.

English courts continue to approach insurance contracts as commercial agreements and apply conventional principles of contractual interpretation. The starting point remains the natural and ordinary meaning of the wording used, considered in the context of the policy as a whole and against the relevant factual and commercial background.

Recent decisions demonstrate the judiciary’s continuing reluctance to rewrite policies or depart from clear wording in pursuit of perceived commercial fairness. Consequently, policyholders and insurers increasingly devote significant attention to policy drafting at placement stage, recognising that even relatively minor differences in wording can produce materially different coverage outcomes.

The trend towards highly tailored policy wordings has also contributed to increased litigation. Whilst bespoke drafting may provide greater certainty for particular risks, it can reduce the usefulness of earlier authorities and increase the likelihood that disputes will turn on the construction of unique contractual language. As a result, coverage litigation has become increasingly fact and wording specific.

Cyber remains one of the fastest-evolving areas of insurance litigation. Whilst ransomware incidents and data breaches continue to generate a significant volume of claims, the market’s focus has increasingly shifted towards systemic technology failures capable of affecting numerous insureds simultaneously.

One of the central issues emerging in coverage disputes is the distinction between malicious cyber-events and non-malicious technology failures. Large-scale outages have highlighted the potential for widespread business interruption losses arising not from cyber-attacks but from software failures, supplier errors or failures within critical digital infrastructure. These events have prompted insurers to review the scope of cyber cover and revisit exclusions designed to address systemic risk.

There has also been increased attention on so-called “silent cyber” exposure. Insurers have invested considerable effort in clarifying whether cyber-related losses are intended to fall within traditional property, liability and financial lines policies. Whilst the market has made significant progress in introducing cyber-specific exclusions and endorsements, disputes continue to arise where losses sit at the boundary between cyber and non-cyber cover.

Another developing area concerns the interaction between cyber coverage and geopolitical risk. As cyber-attacks become increasingly sophisticated and concerns regarding state-sponsored activity continue to grow, disputes regarding war exclusions, attribution and causation are becoming increasingly prominent. Establishing who was responsible for a cyber-event and whether it falls within a war or hostile acts exclusion remains a significant evidential and legal challenge.

Aggregation continues to generate some of the most commercially significant coverage disputes in the English market. Although aggregation arguments have existed for decades, the issue has become increasingly important as losses have become larger, more complex and more systemic in nature.

The practical importance of aggregation lies in its potential impact on available indemnity. Characterising multiple losses as a single claim may result in one limit and one deductible applying, whereas treating losses separately may give rise to multiple limits and deductibles. Consequently, aggregation disputes frequently determine the overall value of the claim.

English courts continue to emphasise that aggregation is fundamentally a wording exercise. Much will depend upon the specific unifying factor selected by the parties, whether that be an event, occurrence, originating cause or series of related acts or omissions. Although the authorities provide guidance, the outcome remains highly dependent on both the wording and the factual circumstances of the particular loss.

Recent systemic losses have reinforced the importance of careful aggregation drafting. Cyber-incidents, professional negligence claims, building safety disputes and mass claims arising from common underlying causes have all highlighted how different aggregation formulations can materially alter the extent of coverage. As a result, both insurers and policyholders are placing increasing attention on aggregation clauses during policy placement and renewal negotiations.

Sanctions have become an increasingly important feature of insurance litigation, particularly following geopolitical developments over the past several years. Whilst sanctions issues have traditionally been most relevant to marine, aviation and political risk business, their impact is now being felt across a much wider range of insurance products.

Coverage disputes commonly arise in relation to whether claims can lawfully be adjusted or paid, whether sanctions exclusions apply and whether insurers are entitled to withhold payment whilst sanctions-related investigations are undertaken. These issues can be particularly difficult where sanctions regimes evolve during the life of a claim or where multiple jurisdictions impose overlapping obligations on insurers and reinsurers.

A further challenge is the interaction between sanctions compliance and claims handling obligations. Policyholders frequently argue that insurers are using sanctions issues as a basis for delaying claims, whilst insurers must ensure that any payment does not expose them to regulatory or criminal liability. This creates a potentially difficult balancing exercise, particularly where payment chains involve international banks, reinsurers and counterparties operating across multiple jurisdictions.

Claims handling practices continue to attract significant scrutiny. Since the introduction of Section 13A of the Insurance Act 2015, insurers have faced greater exposure where claims are not paid within a reasonable time. As a result, disputes increasingly focus not only on coverage itself but also on the manner in which claims have been investigated and adjusted.

Whilst the legislation recognises that insurers are entitled to investigate claims and dispute genuinely arguable cases, policyholders are increasingly willing to examine the conduct of the claims process itself. Issues frequently arise regarding the length of investigations, the scope of information requested, repeated requests for documentation, reliance on expert evidence and the timing of coverage decisions.

The practical consequence has been a greater emphasis on claims governance and record-keeping. Insurers are increasingly conscious that contemporaneous evidence demonstrating the reasonableness of their investigations may become important if allegations of late payment are subsequently pursued. Equally, policyholders are increasingly scrutinising claims handling conduct as an additional avenue of recovery where coverage has been delayed for prolonged periods.

ESG and climate-related issues are increasingly relevant to underwriting, policy exclusions, D&O claims, professional liability, property damage and business interruption. Policyholders are seeking cover for physical climate-related losses and liability exposures, while insurers are responding through more detailed underwriting, exclusions, sub-limits and scrutiny of climate-related disclosures.

D&O policies may be particularly affected where claims are brought against directors or officers in connection with climate strategy, alleged greenwashing, corporate governance failures, regulatory investigations or shareholder actions.

Where underwriting or claims handling is delegated to managing general agents (MGAs), third-party administrators (TPAs) or coverholders, disputes can arise over authority, knowledge, waiver, responsibility for claims decisions, conflicts of interest and delay. From a policyholder perspective, a key issue is whether the conduct or knowledge of the delegate is attributable to the insurer.

Disputes may also arise where the policyholder receives inconsistent information from brokers, coverholders, MGAs or insurers, or where delegated claims handling affects the timeliness, fairness or transparency of the claims process.

Financial lines disputes are being shaped by regulatory scrutiny, insolvency risk, shareholder claims, professional negligence, cyber-incidents, ESG-related allegations and rising defence costs. D&O disputes commonly concern the scope of wrongful act wording, insured capacity, investigation costs, defence costs, aggregation, fraud and dishonesty exclusions, insured v insured exclusions and regulatory investigation cover.

Professional indemnity disputes often focus on notification, aggregation, exclusions, causation, loss allocation and whether the claim arises from professional services within the meaning of the policy.

For financial institutions it is not uncommon for coverage issues to arise because the nature of the financial institutions’ liability does not always fit squarely within traditional civil liability of crime covers. For example, the likelihood that its liability to other financial institutions is often likely to be contractual. However, most traditional liability policies contain contractual liability exclusions (albeit with certain carve-backs).

Casualty disputes are increasingly driven by high-value, long-tail and multi-party liability claims. Building safety, product liability, public liability, employer liability, environmental exposure, abuse claims and emerging technology risks all create pressure on policy limits and historic insurance programmes.

Coverage issues often concern trigger, causation, occurrence wording and allocation across policy years. Where injury develops over time, parties may dispute when the insured event occurred and which policy year is relevant. Where numerous claimants are involved, aggregation and limits become central.

Principal exposure areas include professional negligence, construction defects, fire and building safety, cyber and data incidents, D&O claims, regulatory investigations, product liability, public liability, environmental claims and high-value property damage disputes.

Insurers most frequently fund defence costs where policies expressly provide that cover, including liability, professional indemnity, D&O, cyber and certain financial institutions policies. The scope of the obligation depends on policy wording, including consent provisions, panel solicitor requirements, reasonableness controls and whether defence costs erode or sit in addition to the limit.

Coverage disputes often arise where insurers advance defence costs under a reservation of rights. That can preserve the insured’s ability to defend the underlying claim while leaving open issues such as exclusions, aggregation, allocation and policy limits.

Technology, AI and regulatory change are creating claims that cut across traditional policy categories. A single event may engage cyber, professional indemnity, D&O, product liability and regulatory cover. There is also the risk that claims arising out of a professional’s use of AI, could fall within widely drafted cyber exclusions.

There have been a number of cases before the English courts reminding professionals that while the use of AI as a tool is acceptable, professionals remain responsible and are unable to delegate that responsibility to AI (eg, a barrister who relies on AI to write their submissions, remains responsible if that AI hallucinates a precedent that does not exist).

The shifting nature and regulatory focus encourages insurers to become involved early in the defence, particularly where regulatory reporting, reputational issues, urgent investigation and privilege need to be managed alongside coverage, and the failure to do so could lead to further claims.

Defence costs are increasing because claims are more document-heavy, expert-led, multi-party, cross-border and strategically sensitive. Construction, cyber, financial lines and regulatory claims are particularly expensive to defend.

Disputes often focus on whether costs were reasonable, whether insurer consent was obtained, whether panel firms should be used and how costs should be allocated between covered and uncovered claims.

Cost risk may be managed through before-the-event insurance, after-the-event insurance, third-party funding, conditional fee arrangements, damages-based agreements where available, Part 36 offers, mediation and early neutral evaluation.

In coverage disputes, the economics are important. Strong claims may still be difficult to pursue if the value is modest compared with disclosure, expert evidence and trial costs.

AI-assisted claims and complaints are an emerging issue rather than an established category of insurance litigation. The likely impact is increased volume and more standardised or template complaints.

The practical challenge for insureds and insurers is triage: distinguishing claims that require substantive defence from those that can be resolved through complaints processes, early settlement or narrow factual enquiries.

Direct actions against insurers are available in certain circumstances, most notably where the insured is insolvent and rights may be pursued against the insurer under the Third Parties (Rights against Insurers) Act 2010. These claims are most commonly seen in liability insurance contexts, including professional indemnity, public liability, employers’ liability and claims involving insolvent insureds.

Direct actions do not remove the need to resolve coverage issues. The claimant will usually stand in the shoes of the insured and may face the same policy defences, including limits, exclusions, notification issues and aggregation arguments.

Defence strategy is increasingly shaped by regulatory scrutiny, reputational risk, group litigation, cyber incidents, building safety claims, ESG allegations and insolvency. In many claims, the legal defence cannot be separated from public communications, regulatory engagement and commercial continuity.

Insurers are responding through closer oversight of defence costs, panel appointments, reservation of rights letters, coverage monitoring counsel and more detailed reporting requirements. Policyholders often accept insurer involvement where costs are being funded, but conflicts can arise where insurers reserve rights or seek to influence settlement strategy.

Co-ordinated multi-claimant actions also create aggregation and allocation issues. Where claims share common factual allegations, insurers may argue for a unified defence and aggregated treatment. Policyholders may resist if that approach reduces available limits or creates conflicts among insured parties.

Geopolitical instability has materially increased both the volume and complexity of insurance disputes. The most significant drivers are the war in Ukraine, sanctions, aircraft leasing losses, political violence, cyber warfare, trade restrictions, supply chain disruption and energy volatility.

These developments affect aviation, marine, political risk, trade credit, cyber, energy, property, business interruption and reinsurance. They commonly raise issues of proximate cause, confiscation, deprivation, war exclusions, sanctions clauses, aggregation and whether losses are physical, financial or contingent.

The scale of Russian aviation claims has made them a defining example. They have required courts and market participants to consider how war risk, aviation hull, contingent and reinsurance programmes respond when aircraft are retained and cannot be recovered.

Sanctions regimes have affected claims handling at every stage: investigation, reserving, settlement, payment and reinsurance recovery. Insurers must consider whether payment is prohibited, whether a licence is required, whether a bank will process funds, and whether reinsurers or other market participants are subject to different regimes.

These issues can delay payment even where coverage is otherwise accepted. However, insurers need to distinguish genuine legal impediments from general caution. Section 13A of the Insurance Act 2015 expressly recognises that factors outside the insurer’s control may be relevant to reasonable time, but such factors do not create a blanket defence to delay.

Policyholders are likely to seek clear explanations, sanctions analysis and evidence of steps taken to resolve payment obstacles. Disputes may therefore concern both coverage and the reasonableness of the claims handling process.

War, terrorism and political risk exclusions are being tested by modern events that do not always resemble traditional armed conflict. Cyber operations, sanctions, detention of assets, political violence, civil unrest and state-backed disruption can all raise questions about how older exclusionary language applies.

The key issue is often characterisation. Was the proximate cause war, confiscation, political violence, terrorism, cyber war, government action or ordinary commercial failure? The answer may determine whether a specialist war or political risk policy responds, whether a mainstream property or liability policy excludes the loss, and how limits or aggregation provisions apply.

The market is responding with more specific exclusions and affirmative grants of cover. In cyber, Lloyd’s market clauses and cyber war exclusions have pushed parties to address attribution and state involvement more directly, although factual attribution remains difficult in practice.

Geopolitical disruption has created losses linked to delayed deliveries, increased costs, inability to source materials, energy price volatility, sanctions, closure of transport routes and interruption of key suppliers. These losses do not always involve physical damage, which can create coverage difficulty under traditional property and business interruption policies.

Where cover exists through extensions such as denial of access, suppliers’ extensions, trade disruption, political risk or contingent business interruption, disputes are likely to focus on causation, sub-limits, waiting periods, territorial scope and aggregation.

Systemic events also raise difficult questions about whether multiple losses arise from one occurrence, one originating cause or separate causes. The answer may affect both direct insurance and reinsurance recoveries.

Over the next 12 to 18 months, geopolitical uncertainty is likely to drive tighter underwriting, clearer sanctions clauses, more precise war and cyber war exclusions, closer scrutiny of supply chain exposures and greater attention to territorial limits. Policyholders with multi-national operations should expect more detailed questions about counterparties, jurisdictions, logistics and reliance on critical suppliers.

Disputes are likely to focus on causation, aggregation, exclusions and payment restrictions. Reinsurance disputes may also increase where direct insurers accept or settle claims but face recovery issues in the reinsurance market.

Policyholders should focus on programme coherence. Local policies, master policies, excess layers and reinsurance arrangements should be reviewed together, because geopolitical losses often expose gaps between layers and jurisdictions.

The most significant emerging risks are cyber and systemic technology failure, AI, data protection, climate and ESG, geopolitical instability, sanctions, building safety, data centre resilience and next-generation energy infrastructure.

In construction, the Building Safety Act has significantly increased exposure for construction-related companies and developers in terms of the length of time they face exposure (limitation being increased from six or 12 years, to 30 years) and what losses they could be exposed too. This has created tension between the traditional basis of professional indemnity cover (for professional services provided by that policyholder) and the exposure the policyholder may face (eg, for losses related to the professional activities of a related company).

These risks are influencing disputes because they test traditional policy concepts such as physical damage, occurrence, causation, aggregation, territorial limits and exclusions. Advisory work is increasingly focused on policy review before loss rather than coverage analysis after loss.

ESG is reshaping underwriting because insurers are asking more detailed questions about climate exposure, governance, supply chains, transition risk and sustainability representations.

Disputes may arise from misrepresentation or non-disclosure, regulatory investigations, greenwashing claims, environmental liability and D&O exposures. The Insurance Act 2015 duty of fair presentation is relevant where insurers allege that material ESG-related information was not properly disclosed.

Data protection and privacy laws affect underwriting, claims handling and litigation strategy. Insurers increasingly scrutinise cyber controls, data volumes, outsourcing, breach response plans and regulatory exposure.

Coverage disputes commonly concern breach response costs, regulatory investigations, fines or penalties, notification, prior-known incidents, aggregation and the distinction between first-party and third-party losses.

Data centres create property, business interruption, cyber, technology E&O (experiences and outcomes), energy and liability exposures. Key risks include power failure, cooling failure, fire suppression issues, grid dependency, service interruption and cyber-attack.

Coverage disputes are likely to focus on whether there is physical damage, how business interruption is calculated, whether service interruption extensions apply and how losses affecting multiple customers are aggregated.

Social media risk remains emerging rather than a mature area of English insurance litigation. Potential exposures include defamation, privacy, harassment, safeguarding, advertising liability, employment claims and regulatory investigation.

Insurers are likely to respond through tighter underwriting, clearer exclusions, sub-limits and specialist media liability products. Caution is appropriate because there is limited English coverage authority in this specific area.

Next-generation nuclear technologies create specialist risks involving construction, design, operational safety, environmental liability, cyber security, terrorism, supply chain failure and long-tail exposure.

The market response is likely to involve specialist underwriting, bespoke exclusions, significant limits and careful interaction with statutory nuclear liability regimes. Mainstream policies often contain nuclear exclusions, so bespoke placement will be critical.

Regulatory focus remains centred on fair treatment of customers, claims handling, consumer protection, operational resilience, cyber resilience, ESG, sanctions compliance and product governance.

These priorities influence insurer behaviour by increasing scrutiny of claims communications, declinature decisions, delay, complaints handling and policy transparency. The contractual wording remains central, but regulatory expectations can provide important context in claims handling disputes.

The most significant developments are likely to come through regulatory scrutiny, market drafting and developing case law rather than a single immediate legislative reform specific to insurance litigation.

Insurers are expected to continue refining wordings in response to cyber, AI, sanctions, climate, building safety, operational resilience and systemic risks. Policyholders should review exclusions, notification, aggregation, sub-limits and sanctions provisions before renewal rather than after loss.