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Jaffray arguments end

Autumn verdict expected in case

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LONDON -- Arguments in the high-profile Jaffray vs. Lloyd's fraud trial have ended, after eliciting testimony from many key figures from Lloyd's of London and forcing the market to revisit one of the most painful periods in its 312-year history.

The 20-week trial attracted worldwide media attention, as witnesses such as former Lloyd's Chairmen Sir Peter Miller, Walter Nicholas "Murray" Lawrence and Sir David Rowland took the witness stand and were questioned about the market's years of struggle in the 1980s and early '90s and names' allegations that they were fraudulently recruited to invest in Lloyd's.

The presiding judge, Mr. Justice Cresswell, is expected to deliver a verdict in the fall. The Jaffray case is the last that can be brought against Lloyd's in U.K. courts over allegations of fraud with regard to asbestos-related losses from the period 1978 to 1988.

In the final week of the trial, all three parties involved -- Lloyd's, the Jaffray names, and litigants in person -- were invited to present their closing arguments. Litigants in person are names who are pursuing individual lawsuits against Lloyd's apart from the Jaffray suit, which was backed by members of the United Names Organisation. Ironically, Sir William Jaffray -- whose original suit developed into the class action -- himself appeared as a litigant in person, because he split with the UNO over ideological differences last year.

In a suit that named 33 senior figures at Lloyd's as defendants, the more than 200 litigating names argued that Lloyd's had concealed the true extent of asbestos-related losses that threatened to hit the market in the 1980s and fraudulently recruited investors to provide capital to bolster the market when those losses hit.

"When matters came to a head in 1981, 1982, the one thing Lloyd's could not properly do was allow external names not to know the problem was there," said Simon Goldblatt, lead attorney for the names class, in his closing remarks.

One thrust of Mr. Goldblatt's arguments was that misrepresentations were made in the brochures sent to prospective names in the 1980s.

"The brochures are the essence of the misrepresentation. You read them and you think you are entering a well-regulated market in which you could rely on theresults," said Mr. Goldblatt. "But you couldn't."

Mr. Goldblatt argued that key insiders at Lloyd's knew about the impending asbestos problem and the difficulties there would be in quantifying the resultant losses. But that information, he said, was not passed on to names.

"We place very grave evidence on the fact that the Neville Russell letter was written, spelling out the size of the problem and the impossibility of quantification. There was nothing the committee could do to make that evidence go away," said Mr. Goldblatt. "They could not say that they did not know the problem was there."

The letter in question was sent to Lloyd's in February 1982 by the accounting firm of Neville Russell. It warned that losses from asbestos-related claims could be considerably larger than Lloyd's had originally estimated, court records show.

Mr. Goldblatt noted that some senior Lloyd's figures continued to maintain that they were unaware of the problem after that letter was sent. "Sir Peter Miller, in the witness box, claimed that `asbestosis was below the level of his horizons,' yet we know that it was communicated to him," said Mr. Goldblatt.

Mr. Goldblatt said that the market was vastly underreserved for the looming asbestosis disaster. "There was huge underreserving, which got worse, and not better, as the asbestosis claims continued to flow," he said. "Lloyd's knew that the market was underreserved for asbestosis-related losses, and it knew that it was impossible to quantify the losses."

Mr. Goldblatt said that he found nothing surprising in the fact that impending losses had not been communicated to names, however, because of the "climate of arrogant secrecy" that he charged existed in Lloyd's at the time.

Mr. Goldblatt also roundly criticized the regulation in place at Lloyd's during the early 1980s.

"An enormous gap existed in the area of reinsurance-to-close between regulation and an absence of regulation," he said. "A coach and horses could have been driven through the gaps in the audit regime."

The most vocal of the litigants in person was Sir William Jaffray himself, who spoke of "hypocrisy, deceit and double standards" at Lloyd's during the period from 1978 to 1988.

Sir William claimed that Lloyd's was "bust" by 1982 and that he and other names would not have joined the market had they been made aware of the difficulties it was facing. He described the recruitment brochure produced by Lloyd's as "a lie promoted by Lloyd's to willfully deceive both existing and prospective members."

Sir William alleged that asbestosis became a "taboo" subject at Lloyd's during the 1980s and that the problem was kept quiet to ensure that the market's recruitment drive was not hindered. The decision was made that "the crisis must be hushed up and nothing must be done to slow the recruitment drive," he claimed.

The names allege that Lloyd's operated a "recruit-to-dilute" policy to bring new capital into the market to absorb the asbestos-related losses it knew would cripple the market.

But Charles Aldous, the lead attorney for Lloyd's, refuted the claims of Mr. Goldblatt and the litigants in person. He said the "grand conspiracy" alleged by names to have taken place would have required the involvement of individuals from all sectors of the market. Such a widespread coverup, he said, was impossible for the names to establish.

Mr. Aldous claimed that the 33 senior Lloyd's figures whom the names accuse of fraud had no more information about asbestos-related losses than did other market participants. "If Lloyd's was fraudulent, then so was nearly everyone else who had the same kind of information," including managing agents and intermediaries, he said. "But the grand conspiracy is impossible, as the names now know."

Mr. Aldous also denied the names' claims that Lloyd's brochures and global report and accounts contained misrepresentations about the state of the market.

"There were no inaccuracies in either the brochures or the globals," he said.

Mr. Aldous picked out some key statements from the Lloyd's brochure to illustrate that it contained warnings about the risk of underwriting at Lloyd's. "The insurance business is a risk business -- it is cyclical -- there is no guarantee that a member will make a profit," he quoted. Mr. Aldous said it was inconceivable that any prospective member reading the Lloyd's brochure could have failed to appreciate that he or she would have unlimited liability.

Mr. Aldous claimed that the names' case hung on Lloyd's role as regulator of the market. "The case against Lloyd's seeks to put the responsibility on Lloyd's as regulator, irrespective of the advice expected to be given to names by their syndicates, managing agents, etc. Lloyd's as regulator does not owe a duty to names," he said.

Mr. Aldous also expressed incredulity that 33 figures at Lloyd's could all have behaved dishonestly. He highlighted the fact that, during the very same period that the names allege Mr. Lawrence and Sir Peter Miller were concealing information about asbestos-related losses, members of their own families were underwriting on syndicates exposed to such losses.

Mr. Aldous described the losses incurred by names who refused to pay their premiums to Equitas Ltd., the runoff reinsurer of Lloyd's pre-1993 long-tail liabilities, as "a personal tragedy." But, he said, Lloyd's duty was to those names who had accepted the 1996 reconstruction and renewal plan and had paid their premiums into Equitas.

Many market observers say that Lloyd's will likely win the case, as the names' accusation of widespread fraud will be difficult to prove. But few deny that having the old charges once again dragged through the press will do nothing to enhance the market's reputation.

Although he said he did not want to comment specifically on the Jaffray case, David Brotzen, the director of London-based reputation protection consultant Brotzen Mayne Ltd., said that communication is a key factor in reputational risk management. "The issue is mistrust and how you get over it. It all boils down to having communicated too late," Mr. Brotzen said.

"Those companies that do actually keep people informed are the ones that avoid the surprises," Mr. Brotzen said. "And when things do go wrong, they seem to be given a second chance."