On 20 August 2020, the English High Court sanctioned an insurance business transfer scheme under Part VII of the UK's Financial Services and Markets Act 2000 in Re Legal and General Assurance Society Ltd and another  EWHC 2299 (Ch).
The significance of this decision is that it can be distinguished from the 2019 decision (currently under appeal) of the English Courts in the case involving a transfer from Prudential to Rothesay in which the Court, having taken policyholders' interests into account, refused to sanction the transfer. Market commentators note that the Prudential/Rothesay decision may be confined to the specific facts of that case and anticipate that insurance business transfer schemes may now be able to rely on the decision in Re Legal and General.
As both the Legal and General case and the Prudential-Rothesay cases were decisions of the English Courts, they are not binding on the Irish courts. That said, we expect that both cases (and the Legal and General case in particular) will be carefully considered by the Irish Courts when considering portfolio transfers by Irish insurance companies.
Re Legal and General Assurance Society Ltd and another  EWHC 2299 (Ch)
In this case, Legal and General, for commercial reasons, sought to transfer its traditional insurance-based savings, pensions, life and with-profits business to Reassure, a specialist in acquiring and consolidating similar books of business.
In deciding to sanction the transfer, the Court made clear that a balance must be struck between the commercial interests of the transferor and transferee, and those of the policyholders in question. That is not to say that a proposed transfer, that is proposed from a purely commercial perspective, should not be given effect. The test is whether, or not, the interests of policyholders would be adversely affected to such an extent that the transfer cannot be sanctioned.
Distinction from Prudential/Rothesay
In August 2019, the English Court declined to sanction the transfer of a portfolio of annuities from Prudential to Rothesay following complaints from policyholders. Where a transferor/transferee can distinguish its transfer application from the facts of the Prudential/Rothesay case, they may benefit from the more liberal decision in Re Legal and General.
The transfer in Re Legal and General was distinguished from the Prudential/Rothesay case on the following grounds:
- Unlike in the Prudential/Rothesay case where the Court observed that the commercial objective of the transfer was achieved by way of reinsurance agreement between the parties, in Re Legal and General the Court was satisfied that the transfer was within the scope of the relevant legislation and that it was supported by sound commercial principles.
- The policyholders would, in fact, benefit from the proposed transfer as the new scheme had in place processes designed to address the diminishing fund being transferred.
- The transferee is part of a large and well-capitalised group, which gave the Court comfort as to the future viability of the fund.
Other Notable Points
The Court reiterated the established high standard for disregarding the report of the independent actuary in observing that "there must be strong grounds for supposing that the independent expert has mistaken his function or made an error before a challenge to the report can be mounted". The Court also confirmed that while an actuary is not required to demonstrate how they arrived at any particular conclusion (i.e. by showing their workings), the court must be satisfied that the scheme will not adversely affect policyholder interests.
This case is a welcome confirmation of the principles applicable to Part VII transfers and of the principles applicable to insurance business transfers more generally. Although the case is not binding in Ireland, we expect that it will be closely examined by the Irish Courts.
Originally published 27 October 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr John Larkin
2 Grand Canal Square
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