IRELAND Law and Practice Contributed by: Grainne Callanan, April McClements and Aisling Kavanagh, Matheson LLP
The following activities are specifically excluded: • claim management on a professional basis; • loss adjusting; • expert claim appraisal; and • mere provision of information if no additional steps are taken by the provider to assist in concluding an insurance or reinsurance contract. The IDR clarifies that “introducing” is not considered a regulated activity under Irish law. Impact of the IDR The IDR introduces enhanced information and con- duct-of-business requirements for insurance distribu- tors. “Ancillary insurance intermediaries” are exempt from the IDR under certain conditions. The IDR prescribes certain requirements relating to product oversight and governance (POG), which aim to: • enhance consumer protection by ensuring insur- ance products meet the target market’s needs; and • mitigate the risk of mis-selling by insurance dis- tributors. Insurance undertakings (and relevant intermediaries) are required to implement POG procedures prior to distributing or marketing an insurance product to cus- tomers. The IDR requires distributors to have product dis- tribution arrangements (PDA) in place that include appropriate procedures for obtaining all pertinent information on the products they intend to offer their customers from the manufacturer. The PDA should be a written document made available to their staff, aiming to: • prevent customer detriment; • manage conflicts of interest; and • ensure the objectives, interests and characteristics of customers are considered. Investment Intermediaries Act 1995 Previously, two pieces of legislation governed inter- mediaries operating in Ireland. The European Union
(Insurance Mediation) Regulations 2005, which have been fully repealed, and the Investment Intermediar- ies Act 1995 (IIA). The IDR brought welcome clarifica- tion regarding the application of the IIA to insurance intermediaries by revoking all references to insurance. Authorisation (Re)insurance brokers/intermediaries require CBI authorisation to: • carry out (re)insurance distribution or advise consumers in relation to general insurance prod- ucts, life assurance, health and medical insurance products; or • act as an insurance intermediary for an insurance company with which they have an agreement or carry out certain activities (such as loss assess- ing or assisting consumers in dealing with claims under insurance contracts). (Re)insurance brokers/intermediaries are subject to ongoing CBI supervision of their compliance with the registration requirements, including completing an annual return and holding an adequate profes- sional indemnity insurance policy. The CBI maintains a register of authorised (re)insurance intermediaries in Ireland. (Re)insurance undertakings involved in the distribution of insurance products must also comply with the national “general good” provisions that regu- late how undertakings may sell and market insurance products to consumers in Ireland. Position of UK-Based Insurance Intermediaries After 31 December 2020 See 3.1 Overseas-Based Insurers or Reinsurers . 6. Making an Insurance Contract 6.1 Obligations of the Insured and Insurer Parties to a non-consumer insurance contract are subject to the duty of utmost good faith (Section 17 of the MIA). The proposer or insured has a duty to disclose all material facts. A material fact is one that would influence the judgment of a prudent underwriter in deciding whether to underwrite the contracts and, if so, on what terms. The duty extends beyond correctly answering questions on a proposal form; every mate-
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