QBE Business Interruption Insurance Class Action Frequently Asked Questions

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  1. What is a class action?
  2. About this class action
  3. Am I eligible to participate as a group member in this class action?
  4. How will I know if I am an eligible group member of the class action?
  5. How much will it cost to be part of the class action?
  6. Do I have to do anything to ‘join’ the class action or the Scheme?
  7. If the claim is filed as an ‘open class’ proceeding, why should I submit an application form to join the Scheme and retain Gordon Legal to act on my behalf?
  8. How do I register for the class action?
  9. Who is conducting the class action?
  10. Who is funding the class action?
  11. What will the Funder receive?
  12. How much is my claim worth?
  13. What do I have to do if I am a Group Member?
  14. Can I withdraw from the Scheme or class action if I don’t want to be part of it?
  15. I have QBE insurance, but not the policy covered by this class action. Why was I not included?
  16. I have insurance with another insurer, what can I do?
  17. Do I need to continue to hold my business insurance with QBE to be a part of the class action?
  18. What happens at the end of the class action?

 

1. What is a class action?

A class action is a special type of court case.  A class action is an action that is brought by one person (known as the ‘applicant’) on his or her own behalf and on behalf of a class of people (known as ‘group members’) against another person (known as the ‘respondent’) where the applicant and the group members have similar claims against the respondent.

In a class action, the applicant’s claims are used to resolve as many factual and legal issues common to the group members as possible. While the group members are represented by the applicant, it is not necessary that every group member have exactly the same type of claim. 

Class actions are capable of giving effect to the rights of large groups of people without the burden or cost of commencing an individual case for each affected person. The class action process saves time and expense and allows the courts to decide issues common to all affected persons in a single case.

 

2. About this class action

Many businesses throughout Australia hold BII policies with QBE that cover losses caused by business interruptions, including those arising from human infectious or contagious disease.   

The action is against one or more members of the QBE Insurance Group.  The class action will be conducted in the name of the representative applicant on behalf of group members.  The class action:  

  • broadly alleges that the refusal by QBE to pay out indemnities to insured persons under relevant BII policies for business interruption losses caused by the COVID-19 pandemic constitutes a breach of contract; and
  • claims damages on behalf of insured persons for loss, damages and/or costs caused by the conduct of QBE in connection with claims which have been (or are to be) in respect of BII.

 

3. Am I eligible to participate as a group member in this class action?

Gordon Legal and Berrill & Watson Lawyers, with support from one of the world’s leading litigation funder, Omni Bridgeway, have been instructed to commence an open class action against QBE on behalf of all persons who:

  • held business interruption insurance with QBE during the COVID-19 pandemic and were insured at any time during the period 19 January 2020 to 1 July 2021; and
  • had certain policy terms in their business interruption insurance policies; and
  • who suffered interruption or interference to their business as a result of the COVID-19 pandemic.

If your insurance product is not noted on the policy as being underwritten by QBE you are invited to provide details about your specific policy.

If your insurance product is not noted on the policy as being underwritten by QBE you are invited to provide details about your specific policy by following this link

 

4. How will I know if I am an eligible group member of the class action?

You can check your insurance documents to work out if you are a group member in the class action. 

The Product Disclosure Statement for your policy and/or your policy schedule will state the name of the insurer.  It may refer to the insurer as ‘the underwriter’ of the policy. If you see that this is a QBE entity, you may be covered by the class action.  

If you are unsure whether you may have a claim in the class action under your specific policy, you can contact us for assistance at https://portal.omnibridgeway.com/qbe?utm_source=gordon_legal&utm_medium=referal&utm_campaign=qbe.

When you follow the link, you will be taken to Omni Bridgeway’s website, where you can register your interest in the QBE Business Interruption Insurance Class Action.

5. How much will it cost to be part of the class action?

You will not become liable for any legal costs simply by remaining a group member. You will never be required to pay any upfront or out-of-pocket costs in respect of the class action.

The costs of running the class action will be partly met by Omni Bridgeway with the remainder met by Gordon Legal and Berrill & Watson. In return, Omni Bridgeway will be entitled to a share of any amount awarded or settled in relation to the class action - see the Fees and Other Costs section of the PDS.

The amounts payable to Omni Bridgeway and the lawyers cannot exceed the amount recovered as part of the class action.

There are no ‘out of pocket’ costs for group members to pay. Further, group members do not have to pay anything in the event that the class action is unsuccessful, as Omni Bridgeway agrees to pay any legal costs that might be awarded to the Respondent.  

 

6. Do I have to do anything to ‘join’ the class action or the Scheme?

No. The Applicant in a class action does not need to seek the consent of class members to commence a class action on their behalf or to identify a specific class member. The claim has been (or is planned to be) filed on an ‘open class’ basis.  This means that all persons who meet the definition of group member in the filed proceedings are included.  However, class members can cease to be class members by opting out of the class action. For more information about opting out of the proceedings see sections 17 and 19 of the PDS for information about the opt out process.

You are also automatically included in the Scheme as a “passive member” if you meet the definition of group member in the class action but do not take steps to apply to become a known member of the Scheme.  Any passive members who do not wish to opt out of the Scheme are encouraged to submit an Application Form for the reasons set out in section 7 below.

 

7. If the claim is filed as an ‘open class’ proceeding, why should I submit an application form to join the Scheme and retain Gordon Legal to act on my behalf?

You are strongly encouraged to apply to be a member of the Scheme and to participate in the class action by completing and returning the Application Form which is set out in the PDS for this class action. 

A copy of the PDS can be accessed here and should be read in its entirety prior to submitting an application. 

There are a number of reasons in favour of applying to become a member of the Scheme: 

  • there is no cost to become a member;
  • it will allow Gordon Legal and Berrill & Watson to confirm that you are a group member and provide you with regular updates about the progress of the class action. It will also enable them to contact you if you become eligible to receive compensation;
  • in class actions, the lawyers are greatly assisted by having information about the value of group members’ claims. The more information they have, the better informed they can be about the reasonableness of any settlement offer that might be made by the respondent in the proceeding;
  • if a settlement is reached;
    • the Court will likely be assisted by having information about the value of group members’ claims in deciding whether to approve the settlement, and in determining how any settlement monies are to be distributed;
    • the Court will likely impose a deadline by which group members must register their claim in order to participate in any settlement and receive any distribution from the settlement sum. While the Court will prescribe a method by which to notify group members, it can’t be guaranteed that you will receive this notice, or you may receive it after the registration deadline.  By applying to become a member of the Scheme now, the likelihood that you will receive any court notices is greatly improved as your contact details will be recorded by us and you will have the opportunity to update them if any of your contact details change at any stage. 

If you have any queries, you can contact the Omni Bridgeway Client Liaison Team by email on [email protected] or free call 1800 016 464.

 

8. How do I register for the class action?

If you would like to participate in or continue as a funded member of the Class Action, you can either:

  • by clicking the ‘Register Here’ button at the top of the page; or
  • you can complete and return the Application Form attached to the PDS, together with a signed Retainer Agreement by post or email. The email and postal address for returning the Application Form and Retainer are noted on the Application Form.  

You are encouraged to return your completed Application Form and signed Retainer Agreement as soon as possible.

If your application is accepted, you will receive updates from Omni Bridgeway via the nominated contact details in your completed Application Form.  You will also be able to access the updates sent to you about the progress of the class action using the unique log on details issued to you at the time you applied to become a member of the Scheme. 

 

9. Who is conducting the class action?

The class action is being run by Gordon Legal and Berrill & Watson. 

Gordon Legal has an experienced team of lawyers in class action litigation, having collectively conducted some of the most complex and challenging group and class actions in Australian Legal history. The firm’s founder and Senior Partner, Peter Gordon is widely respected as one of Australia’s most accomplished compensation and class actions lawyers.

Berrill & Watson has decades of experience acting in insurance disputes and securing pay-outs for claimants from Australia’s biggest insurance companies.

Gordon Legal will be the solicitors on the record for the class action and require Scheme applicants to sign and return their retainer agreement (Retainer Agreement) when submitting their Application Form.  The Retainer Agreement is annexed to the Application Form and can also be submitted as part of Omni Bridgeway’s online sign-up process.

The Lawyers will be providing their services on a part conditional fee basis, with a percentage of their fees ‘at-risk’, meaning they will only receive these ‘at-risk’ fees in the event the litigation is successful (they will also be entitled to an uplift on their at-risk fees in such circumstances). Further information relating to the lawyers’ role in the Scheme is set out in Section 7 of the PDS, and further details in respect of the Lawyers’ entitlements under the Scheme can be found in section 38 of the PDS. 

10. Who is funding the class action?

The class action is being funded by Australia’s largest litigation funder, Omni Bridgeway, as a registered management investment scheme (the Scheme) in accordance with new funded class action regulations introduced by the Australian government in 2020.

A registered managed investment scheme has been established for these purposes by Omni Bridgeway Investment Management Limited (ACN 642 086 593, AFS Licence No. 524023) (OBIML) (Scheme).  The company providing part of the litigation funding under the Scheme is Omni Bridgeway (Fund 5) Australia Invt. Pty Ltd (ACN 635 083 984, Authorised Representative No. 1283704) (Funder), which is an authorised representative of OBIML.  The balance of the funding will be provided by Gordon Legal and Berrill and Watson on a ‘no win, no fee’ basis. The Funder will use the litigation management services of Omni Bridgeway Limited (ACN 067 298 088, Authorised Representative NO. 1283703), which is also an authorised representative of OBIML.  The proposed funding arrangements are set out in the Product Disclosure Statement (PDS) which can be viewed here and in the Scheme’s constitution.

The Funder will also cover the risk of the Class Action being unsuccessful. Typically in litigation, ‘costs follow the event’, meaning that the successful party is entitled to claim the majority of their legal costs from the unsuccessful party. Instead of the representative applicants being liable for any such costs if the Class Action is unsuccessful, the Funder will cover this under the terms of the Scheme.  If you are a group member only and not the representative applicant (the person in whose name the proceeding will be brought), the Court has no power to make a costs order (in respect of the class action) directly against you in any event.

Further information about the funding arrangements is contained in the PDS (see in particular the Fees and Other Costs section of the PDS).

 

11. What will the Funder receive?

As a potential return on its investment, the Funder will be entitled to a share of any sum received in a successful result, such as an award by a Court or an amount paid by way of settlement of the Class Action. Further information about the Funder’s entitlements is contained in the PDS (see in particular the Fees and Other Costs section of the PDS).

 

12. How much is my claim worth?

Assuming that QBE is found liable to indemnify you under your policy, the policy itself sets out what losses can be claimed and how your losses are to be assessed, and the Court may make rulings about how sections of the policy relating to the calculation of your losses are to be interpreted.  Assistance will be provided to group members to assist them to quantify their losses at the appropriate stage of the litigation.

 

13. What do I have to do if I am a Group Member?

Group Members do not have to be actively involved in the class action. The proceeding will be advanced by reference to the claims of the representative applicant.

However, we strongly recommend that group members complete an application form to be a part of the funding Scheme. If you join the funding scheme Omni Bridgeway will review your insurance documents to see if you may be a group member and provide assistance in connection with the proceeding. You can apply by following this link.

 

14. Can I withdraw from the Scheme or class action if I don’t want to be part of it?

If you meet the definition of a group member you are automatically included in the class action.

If you don’t want to be included in the class action, you can withdraw by “opting out”. The Court will order a date by which group members must opt out. There is further information about opting out at section 19 of the PDS.

You also have a cooling off period of 21 days after applying to become a member of the Scheme.  Further information about the cooling-off period can be found in section 17 of the PDS.

 

15. I have QBE insurance, but not the policy covered by this class action. Why was I not included?

Gordon Legal and Berrill & Watson conducted a review of different policies on the insurance market, including various QBE policies. This review revealed there are a number of different QBE policies, which contain different wording.  This class action is in respect of four particular QBE policies. 

If you have a different QBE policy and you are not sure if you might be covered, you should contact Gordon Legal on 03 9603 3000 and they can review your policy for you, or alternatively, you can provide details about your specific policy by completing a short online form here.

When you follow the link, you will be taken to Omni Bridgeway’s website, where you can register details about your specific policy.

 

16. I have insurance with another insurer, what can I do?

Because there are differences in the types of BII offered by the various insurers, not all insurers are exposed to potential claims in the same way.

If you are insured for business interruption with an insurer other than  QBE, Gordon Legal can review your documents and may still be able to assist you. You can provide details about your specific policy by completing a short online form here.

When you follow the link, you will be taken to Omni Bridgeway’s website, where you can register details about your specific policy.

 

17. Do I need to continue to hold my business insurance with QBE to be a part of the class action?

It is your choice what arrangements you make in relation to your insurance. You do not need to continue to hold your QBE insurance to be a group member.

You only need to have held QBE BII insurance at any time during the period 19 January 2020 to 1 July 2021, being the date of commencement of these proceedings.

 

18. What happens at the end of the class action?

A class action can be successfully resolved in one of two ways: 

  • Through a settlement agreement between the representative applicants and the respondent; or
  • If the class action does not settle, by the Court awarding judgment in favour of the representative applicants.

Most class actions are settled and do not proceed to trial, however, there is no guarantee that the case might resolve by agreement between the parties.  If a settlement is reached, the Court must approve the settlement as being fair, reasonable and in the interests of group members before it can proceed. 

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