Category: Insurance

HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others: HL 20 Feb 2003

The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for misrepresentation. The policies were novel and sophisticated contracts and included clauses modifying the duties of disclosure by inclusion of a ‘truth of statement clause’. The clause appeared expressly not to require any representation as to the financial viabillity of the projected films, and to avoid liability for any misrepresentation made to the insurers. In this case the insurers sought to rely upon representations of the insurers themselves.
Held: The clause was intended to excuse a wide range of misrepresentation, but the law, on public policy grounds, does not permit a contracting party to exclude liability for his own fraud in inducing the making of the contract. Express and clear words were needed to avoid the consequences of fraudulent misrepresentation by a party’s agent and ‘it is extraordinarily unlikely that parties to a contract will agree a term which excludes liability for fraud with sufficient clarity to raise squarely the question of whether it should be lawful to do so’. The insurers were entitled to damages or to avoid the contract for fraudulent misrepresentation or fraudulent non-disclosure by the agent. Lord Hoffmann said that discussions about the effect and nature of the precise words used by law lords in either agreeing, entirely agreeing or concurring in the words of others amounted to an exercise which had ‘more in common with reading tea leaves than with legal reasoning’.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Scott of Foscote

Citations:

[2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358

Links:

House of Lords, Bailii

Statutes:

Misrepresentation Act 1967 2(1), Unfair Contract Terms Act 1977

Jurisdiction:

England and Wales

Citing:

Appeal from – HIH Casualty And General Insurance Limited and Others v The Chase Manhattan Bank and Others CA 31-Jul-2001
Parties syndicating finance for a film obtained the security of an insurance which is designed to pay up to the sum insured, if the revenues generated by the film were insufficient to repay the loan finance plus associated expenses. The polices were . .
Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Lazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
Cited – Societe Anonyme d’Intermediaries Luxembourgeois v Farex Gie CA 1995
The court considered the duty of disclosure impsed upon an insured: ‘Why should it be a breach of good faith sufficient to deprive the assured of his contract if the agent fails to disclose something which, had the assured known of it, would not . .
Cited – Weir v Bell 1878
‘I think that every person who authorizes another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given, as much as he undertakes for its absence in himself when he . .
Cited – S Pearson and Son Ltd v Dublin Corporation HL 1907
A clause in a building contract provided that the contractor should satisfy himself as to the dimensions, levels and nature of all existing works. Did this exclude an action based on alleged fraudulent misrepresentations by the council’s engineers . .
Cited – Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd CA 1990
A loan was to be made. An agent of the borrower came to know of the fraudulent nature of the loan, but said nothing.
Held: A failure to disclose a known fraud may itself amount to a misrepresentation, but nondisclosure (whether dishonest or . .
Cited – Pan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994
The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
Held: ‘material circumstance’ which . .
Cited – PCW Syndicate v PCW Reinsurers CA 8-Sep-1995
A policy was not avoided by the agent’s failure to disclose his own dishonesty with the principal. In this area there was no difference between the law of Marine Insurance and other insurances. . .
Cited – Blackburn, Low and Co v Vigors HL 1887
There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: . .
Cited – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Cited – Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd HL 26-Nov-1981
Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable . .
Cited – Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA 1973
The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
Cited – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Cited – Toomey v Eagle Star Insurance Co Ltd (No 2) QBD 1995
Applying Canada Steamship Lines Ltd v The King, Colman J said: ‘Notwithstanding the commercial purpose of this transaction, the correct approach, as a matter of construction, is to conclude that in fact the effect of cl (a) is only to exclude the . .
Cited – Toomey v Eagle Star Insurance Co Ltd CA 1994
The word ‘reinsurance’ is often used loosely simply to describe any contract of insurance which is placed by or for the benefit of an insurer, but it should be construed more properly to require the insurance of an insurable interest in the subject . .
Cited – Lee v Jones CCP 1864
Jones had guaranteed to Lee payment of any balance due to them by their agent Packer. Jones sought to set aside the guarantee on ground of fraud by Lee. The fraud alleged was the failure of Lee to disclose that Packer had not properly accounted to . .
Cited – Rivaz v Gerussi Brothers and Co CA 1880
Underwriters were held entitled to avoid insurance policies because of concealment of the undervalue of the insured shipments. Brett LJ said: ‘Here it was not only a concealment, but a fraudulent concealment, for the matter concealed was kept back . .
Cited – Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd HL 1991
Banks had made loans against property which the borrower had said was valuable, and, also insurance policies against any shortfall on the realisation of the property. The borrower was a swindler and the property worthless. The insurers relied upon a . .
Cited – Gluckstein v Barnes; Re Olympia Ltd, ex parte Gluckstein HL 1900
Directors’ hidden profits disclosable
Promoters of a company had acquired a property intending its resale through the sale of shares in the company. In doing so the original directors made a substantial profit which they did not disclose (though it was discoverable). The company became . .
Cited – Brownlie v Campbell; Brownlie v Miller HL 1880
Silence where there is a duty to speak, may amount to a misrepresentation. Lord Blackburn said: ‘where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say . .
Cited – Mackender v Feldia AG CA 1966
A clause provided that an insurance policy should be governed by Belgian law and that ‘any disputes arising thereunder shall be exclusively subject to Belgian jurisdiction.’ The underwriters avoided the contract for non-disclosure of material facts . .
Cited – Blackburn, Low and Co v Vigors CA 1886
Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance . .
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Lazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
Cited – Advanced Industrial Technology Corporation Ltd v Bond Street Jewellers Ltd CA 4-Jul-2006
The claimant left a valuable necklace with the defendant jewellers for sale. The jewellers fell into financial difficulties, and the director gave the necklace as security for a loan to the company. The jeweller failed to maintain payments on the . .
Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .
Lists of cited by and citing cases may be incomplete.

Insurance, Media, Contract

Leading Case

Updated: 08 April 2022; Ref: scu.179502

New England Reinsurance Corporation v Messoghios Insurance Co: 1992

Where, on the face of the documents the parties contemplate that, before being bound by a contract, they will execute a written contract the terms of which require careful negotiation, there is a distinction between a party who indicates his agreement to the wording to be contained in the contract and his assent to be bound by the contract itself once drawn up and executed.

Citations:

[1992] 2 Lloyds LR 251

Jurisdiction:

England and Wales

Cited by:

Cited – Sun Life Assurance Company of Canada (A Company Established Pursuant To the Laws of Canada) v CX Reinsurance Company Limited (Formerly CNA Reinsurance Company Ltd) CA 6-Mar-2003
The claimant appealed a refusal to order that a dispute between insurer and re-insurer be referred to arbitration. One party sought to avoid liability under the policy, alleging misrepresentation. Discussions had been undertaking settling a revised . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 08 April 2022; Ref: scu.179739

Smith v Meae and Others: ECJ 10 Apr 2018

Reference for a preliminary ruling – Approximation of laws – Insurance against civil liability in respect of the use of motor vehicles – Third Directive 90/232/EEC – Article 1 – Liability for personal injury caused to all passengers other than the driver – Compulsory insurance – Direct effect of directives – Obligation to disapply national legislation contrary to a directive – Whether the State may rely on a directive against an individual

Citations:

ECLI:EU:C:2018:223, [2018] EUECJ C-122/17 – O

Links:

Bailii

Jurisdiction:

European

Insurance

Updated: 07 April 2022; Ref: scu.608650

Contact (Print and Packaging) Ltd v Travelers Insurance Co Ltd: TCC 23 Jan 2018

Claim under a combined insurance policy in which the claimant seeks payment of monies said to be due under the physical damage and business interruption sections of that policy, arising from physical damage to and the failure of a Heidelberg Speedmaster CD 102 – 6LX printing press

Citations:

[2018] EWHC 83 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 03 April 2022; Ref: scu.602977

WASA International Insurance Company Ltd v Lexington Insurance Company: CA 29 Feb 2008

Citations:

[2008] EWCA Civ 150, [2008] 1 CLC 340, [2008] Lloyd’s Rep IR 510, [2008] Bus LR 1029, [2008] 1 All ER (Comm) 1085, [2008] Env LR 39

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Soleymani v Nifty Gateway Llc ComC 24-Mar-2022
Arbitration jurisdiction applications stayed
The claimant sought declaratory relief as to the basis of a purchase after he placed a bid for a blockchain-based non-fungible token (also known as an NFT) associated with an artwork by the artist known as Beeple titled ‘Abundance’. The court was . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 03 April 2022; Ref: scu.266015

Amtrust Europe Ltd v Trust Risk Group Spa: ComC 10 Dec 2014

The parties disputed sums said to be due under arrangements selling medical malpractice insurance in Italy.
Held: ATEL had a ‘good arguable case’ that the ToBA continued as an agreement and was not superseded by the ‘Framework Agreement’, and that the courts of England and Wales have jurisdiction in relation to disputes arising out of that agreement.

Judges:

Blair J

Citations:

[2014] EWHC 4169 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Trust Risk Group Spa v AmTrust Europe Ltd CA 30-Apr-2015
The appeal was as to a jurisdiction dispute arising from the breakdown of a business relationship about the placement of medical malpractice insurance in the Italian market. The underlying question was whether the contractual arrangements between . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction, Insurance

Updated: 29 March 2022; Ref: scu.539959

Chandris v Argo Insurance Ltd: 1963

Terms of an insurance policy for the very nature of the loss may require a particular method of computation or process of quantification of loss before payment is due. Ordinarily, the right to the indemnity accrues as soon as the loss has been suffered. The result is that ‘it is not a condition precedent – it is not a fact which must exist and be pleaded – that the plaintiff has quantified the amount of his claim; or even that all the facts exist at the date of the writ which will enable the proper amount of the claim to be determined.’ These are ‘matters of evidence, not prerequisites of a cause of action.’

Judges:

Megaw J

Citations:

[1963] 2 LLoyds Rep 64

Jurisdiction:

England and Wales

Cited by:

Cited – Kastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
Cited – Sveriges Angfartygs Assurans Forening (The Swedish Club) and Others v Connect Shipping Inc and Another SC 12-Jun-2019
The Court was asked as to the construction of the phrase ‘constructive total loss’, and in particular the calculation the expenditure to be taken into account in computing the cost of recovery and or repair. . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 28 March 2022; Ref: scu.251753

Firma CF-Trade SA v Newcastle Protection and Indemnity Association (the ‘Fanti’): QBD 1987

The court considered the effect of section 1(3) on a ‘pay to be paid’ clause in a re-insurance contract.
Held: If, as a matter of construction of the membership rules, the condition survived the making of a winding-up order – which he thought it did not) the condition sought directly to alter the rights of the parties in a winding up, and so could not be given effect.

Judges:

Mr Justice Staughton

Citations:

[1987] 2 Lloyd’s Rep 299

Statutes:

Third Parties (Rights Against Insurers) Act 1930 1(3)

Jurisdiction:

England and Wales

Citing:

Dicta Adopted – Re Allobrogia Steamship Corporation 1979
The court considered the effect, on the insolvency of the insured, of ‘pay to be paid’ conditions in contracts of insurance. It was asked to order the winding-up of a foreign registered company. The company had to own assets within the jurisdiction . .

Cited by:

Cited – Freakley and Curzon Insurance Ltd v Centre Reinsurance International Company and Another; similar CA 11-Feb-2005
Claims were made for personal injury caused by asbestos. The re-insurers sought declaratory relief against the head insurers, and the administrators of the insolvent company. The administrators sought declarations in turn. Curzon insured the company . .
Appeal from – Socony Mobil Oil Co Inc v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (Fanti) CA 30-Nov-1989
The court considered appeals from conflicting interpretations of the effect of s1(3) of the 1930 Act on pay to be paid clauses in the event of the insolvency of the insured.
Held: The condition did not purport to avoid the contract or to alter . .
Appeal from – The Fanti and The Padre Island CA 1989
. .
At First Instance – Firma C-Trade SA v Newcastle Protection and Indemnity Association (‘The FANTI’) HL 1991
. .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 28 March 2022; Ref: scu.223313

Ted Baker Plc and Another v Axa Insurance UK Plc and Others: CA 11 Aug 2017

Appeal against the rejection by Eder J of a claim against insurers for alleged business interruption (‘BI’) losses said to have arisen in respect of goods stolen by a trusted employee

Judges:

Treacy, David Richards LJJ, Sir Christopher Clarke

Citations:

[2017] EWCA Civ 4097

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 28 March 2022; Ref: scu.591921

Sveriges Angfartygs Assurans Forening (The Swedish Club) and Others v Connect Shipping Inc and Another, Re Renos: CA 19 Feb 2018

The court considered what expenses were to be taken into account in assessing whether there had been a total loss of a ship.

Judges:

Sir Geoffrey Vos Ch, Simon, Hamblen LJJ

Citations:

[2018] EWCA Civ 230, [2018] 2 All ER (Comm) 575, [2018] WLR(D) 104, [2018] 1 Lloyd’s Rep 285, [2018] Bus LR 1333

Links:

Bailii, WLRD

Statutes:

Marine Insurance Act 1906 60(2)(ii)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Sveriges Angfartygs Assurans Forening (The Swedish Club) and Others v Connect Shipping Inc and Another SC 12-Jun-2019
The Court was asked as to the construction of the phrase ‘constructive total loss’, and in particular the calculation the expenditure to be taken into account in computing the cost of recovery and or repair. . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 28 March 2022; Ref: scu.605192

Miley v Friends Life Ltd: QBD 27 Jun 2017

The court was asked whether or not the claimant is (and has been) entitled to receive payments from the defendant under an income protection policy of insurance on the basis that he is suffering from moderate to severe chronic fatigue syndrome (‘CFS’). The defendant contends that the claimant is not so entitled because he is either faking or, at least, seriously exaggerating his illness. A further issue, however, also arises as to whether the defendant is entitled to avoid the policy on the additional ground that the claimant is in breach of the terms of the policy having understated his income to the defendant on two occasions after the claim had been made.

Judges:

Turner J

Citations:

[2017] EWHC 1583 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 27 March 2022; Ref: scu.589911

Dalecroft Properties Ltd v Underwriters Subscribing To Certificate Number 755/BA004/2008/OIS/00000282/2008/005: ComC 26 May 2017

Challenge to rejection of claim under fire insurance policy on the grounds of misrepresentation and/or non-disclosure and/or have been discharged from liability by breaches of warranty on the part of Dalecroft. The misrepresentations and/or non-disclosures relied upon by the Underwriters principally (though by no means exclusively) relate to the description and condition of the Property. The breaches of warranty relied on principally relate to the commercial un-occupancy conditions of the policy.

Judges:

Salter QC

Citations:

[2017] EWHC 1263 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 27 March 2022; Ref: scu.588911

Lort-Williams v Lort-Williams: CA 1951

two individuals had taken out a single premium insurance policy on the life of Sir John Rolleston Lort-Williams. The benefits were payable to these trustees as ‘moneys payable under this policy, effected for the benefit of the widow or children or any of them of the assured in such shares and proportions and interest, and generally in such manner as the assured shall by will or deed revocable or irrevocable appoint or have so appointed’. The policy was for the benefit ‘of the widow . . ‘ of the assured in such amounts as he should decide by will or deed.
Held: Sommervell L.J. said: ‘Counsel for the husband admits that the words of s. 25 of the Act of 1950 have been given a wide meaning, but he relies that the interest of the wife was contingent in that (i) she has to survive the husband (ii) she has to survive him as his widow, and (iii) if there were children (the position might be obscure if there were not), she might take no interest at all if he appointed the whole fund to the children. I do not think that is sufficient to take the policy out of the meaning of ‘settlement’ in this section.’
Denning LJ said: ‘The word ‘settlement’ in s. 25 . . is not used in the conveyancing sense. It includes any provision made by a husband for the future benefit of his wife, if it proceeds on the footing of the then existing marriage. It does not cease to be a settlement on her because the provision is, not absolute, but only contingent, nor does it cease to be a settlement on her because it may in its terms also be applicable for the benefit of a wife by a subsequent marriage.’

Judges:

Somervell LJ, Denning LJ

Citations:

[1951] P 395, [1951] 2 All ER 241

Statutes:

Matrimonial Causes Act 1950 2

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Brooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
Lists of cited by and citing cases may be incomplete.

Family, Insurance, Trusts

Updated: 26 March 2022; Ref: scu.652158

Dawsons Ltd v Bonnin and Others: HL 14 Jul 1922

Under a comprehensive policy a firm of contractors insured a motor lorry with certain underwriters against third party risks, damage by accident, fire, and theft. The policy provided that the proposal should be the basis of the con-tract and be held as incorporated therein, and it contained a ‘condition’ printed on its back that ‘material misstatement or concealment of any circumstances by the insured material to assessing the premium or in connection with any claim shall render the policy void.’ In the proposal in answer to the question ‘State full address at which the vehicle will usually be garaged’ the proposers answered ‘Above address,’ the ‘above address’ being their ordinary business address in Glasgow, the buildings of which were stone and were known to the underwriters’ agent. As a matter of fact the lorry was garaged at a farm steading within the municipal boundary, but some miles away, in a shed built mainly of wood, and accommodating, in addition to the car, petrol lorries belonging to the proposers and some barrels of oil or petrol. A fire broke out and the shed and insured lorry were destroyed. The proposal was signed by the proposers, but contained no declaration by them as to the truth of the answers. In an action at the instance of the contractors against the underwriters for the amount of the insurance, in which a proof was taken, the Second Division on a reclaiming note held the policy void on the ground that the answer to the fourth question contained a misstatement material to assessing the premium. Held (affirming that judgment, diss. Viscount Finlay and Lord Wrenbury) that the policy was void, but, varying the judgment, that the fact that the proposal was made the basis of the contract made the answers thereto fundamental, and that an untrue answer made the policy void whether it was material from the ordinary business standpoint or not.
Observations per Viscount Haldane on the doctrine of warranty in contracts of insurance.
Observed per Viscount Cave that the fact that parties had agreed that certain statements should form the ‘basis’ of a contract showed that they deemed them material to the contract.

Judges:

Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin, and Lord Wrenbury

Citations:

[1922] UKHL 509, 59 SLR 509

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 26 March 2022; Ref: scu.632806

Simner v New India Assurance Co Ltd: QBD 28 Jun 1994

A proposed assured had no duty to disclose or enquire as to facts which were not within his knowledge at the time when he applied for insurance, but his duty did extend to matters which it would normally within his purview to know.

Judges:

Judge Diamond QC

Citations:

Times 21-Jul-1994

Statutes:

Marine Insurance Act 1906 17 18 19

Jurisdiction:

England and Wales

Insurance

Updated: 26 March 2022; Ref: scu.89267

Sun Alliance (Bahamas) Ltd and Another v Scandi Enterprises Ltd: PC 8 May 2017

Court of Appeal of the Commonwealth of the Bahamas. The insured sought to recover for the loss of a building by fire. The insurer said that the claimant had not proved his loss (it waas a valued policy), and that the building itself was not insured.

Judges:

Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption, Lord Toulson

Citations:

[2017] UKPC 10

Links:

Bailii

Jurisdiction:

Commonwealth

Insurance

Updated: 24 March 2022; Ref: scu.582136

Commission v Belgium C-522/04: ECJ 3 Oct 2006

ECJ Failure of a Member State to fulfil obligations – Articles 18, 39, 43, 49 and 56 of the EC Treaty and Articles 28, 31, 36 and 40 of the EEA Agreement – Articles 5(1) and 53(2) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ 2002 L 345, p. 1) – Tax legislation which in particular provides for less favourable treatment of contributions to occupational pension schemes paid to insurance undertakings established abroad, taxes in Belgium capital, and surrender values, paid to beneficiaries having transferred their residence abroad, and obliges insurance undertakings established abroad to have a representative residing in Belgium to ensure the payment of the annual tax on insurance contract

Citations:

[2006] EUECJ C-522/04

Links:

Bailii

Jurisdiction:

European

Cited by:

Opinion – Commission v Belgium C-522/04 ECJ 5-Jul-2007
ECJ (Freedom Of Establishment) Failure of a Member State to fulfil obligations Freedom of movement for persons Freedom of movement for workers Freedom to provide services Freedom of establishment Free movement of . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 23 March 2022; Ref: scu.580992

In re Shebsman: CA 1944

Judges:

Luxmoore LJ

Citations:

[1944] Ch 83

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Shebsman ChD 1943
. .
Considered – In re Englebach 1924
A man took out a policy payable to his daughter (then one month old) on her attaining 21. He died. She attained 21 and the policy monies were paid to her but she was then persuaded to pay them into the hands of a stakeholder pending a decision as to . .

Cited by:

Criticised – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 23 March 2022; Ref: scu.251057

Woodall v Pearl Assurance Co Ltd: CA 1919

Judges:

Bankes LJ, Warrington LJ

Citations:

[1919] 1 KB 593

Jurisdiction:

England and Wales

Citing:

Dicta distinguished – Jureidini v National British and Irish Millers Insurance Company Limited HL 1915
An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an . .

Cited by:

Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 23 March 2022; Ref: scu.193382

E D Sassoon and Co v Western Assurance Co: PC 1912

(Shanghai) A cargo of opium was damaged as a result of ingress of water through a rotten hull.
Held: Losses occasioned by the incursion of water into a vessel’s hull owing to the defective, deteriorated or decayed condition of the hull or ordinary wear and tear are not losses caused by ‘perils of the seas’
‘The learned judge held that the damage was not due to a sea peril at all, but was solely due to the weakness of the hulk, and he thereupon dismissed the action. Their Lordships are of opinion that the learned judge was right. There was no weather, nor any other fortuitous circumstance, contributing to the incursion of the water; the water merely gravitated by its own weight through the opening in the decayed wood and so damaged the opium. It would be an abuse of language to describe this is a loss due to perils of the sea.’

Citations:

[1912] AC 561

Jurisdiction:

England and Wales

Cited by:

Cited – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance, Commonwealth

Updated: 23 March 2022; Ref: scu.428507

Axa Seguros, Sa De Cv v Allianz Insurance Plc (T/A Allianz Global Risks) and Others: ComC 2 Mar 2011

Christopher Clarke J summarised the position as follows:
‘An affidavit which sets out a claim for privilege by stating the alleged purpose of the communication is not conclusive where it is appears from other evidence that the characterisation of the documentation is misconceived. The court must consider the issue in the light of all the evidence including, but not limited to any statement of purpose.’ and: ‘The dividing line between circumstances which afford a reasonable prospect of litigation (but not necessarily that litigation is more probable than not), on the one hand, and a (mere) possibility of litigation on the other, is not entirely clear. The fact that one or more conditions have to be fulfilled in order for a dispute to arise which requires the commencement of litigation in order to resolve it does not necessarily mean that litigation is only a possibility. Much may depend on what, at the relevant time, is the prospect that the conditions will be fulfilled.’

Judges:

Christopher Clarke J

Citations:

[2011] EWHC 268 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 23 March 2022; Ref: scu.430290

Harris and others v The Society of Lloyd’s: ComC 1 Jul 2008

Refusal of ;lay representation in Commercial Court

Judges:

Mr Justice David Steel

Citations:

[2008] EWHC 1433 (Comm), [2009] Lloyd’s Rep IR 119

Links:

Bailii

Statutes:

Courts and Legal Services Act 1990 27, Admiralty and Commercial Court Guide

Jurisdiction:

England and Wales

Citing:

Cited – D v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .
Cited – Paragon Finance Plc v Noueiri CA 24-Apr-2001
Application for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 23 March 2022; Ref: scu.270536

Assicurazioni Generali Spa v Arab Insurance Group (BSC): CA 13 Nov 2002

Rehearing/Review – Little Difference on Appeal

The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. Tanfern was limited to appeals from interlocutory orders. The judge had seen the witnesses, and his assessment was to be interfered with only with great caution. It was not suggested here that the evidence should be reheard.
To prove inducement the insurer or reinsurer must show that the non-disclosure or misrepresentation was an effective cause of his entering into the contract on the terms on which he did. The judge was correct that ARIG had not shown that, if it had known the full facts, it would not have entered into the contracts or would have taken some other share. There was no basis for the court to interfere with that conclusion.
Ward LJ (dissenting) said: ‘I take the law to be this: if it be established that the representee did not allow the representation to affect his judgment in any way then he could not make it a ground for relief. If on the other hand the representee relied on the misrepresentation, then the representor cannot defeat his claim for relief by showing that there were other more weighty causes which contributed to his decision to enter into the contract. In this field the Court does not allow an examination of the relative importance of contributory causes. In other words, it is sufficient if the representation is a cause even if it is not the cause operating on the mind of the representee when he enters into the contract’.
Ward LJ discussed the difficulties of an appeal court reviewing a trial judges finding of fact, saying: ‘Bearing these matters in mind, the appeal court conducting a review of the trial judge’s decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established . . I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with the evaluation of those facts.’
Clarke LJ said: ‘The approach of the court to any particular case will depend upon the nature of the issues kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adams and Chope (trading as Trelawney Fishing Co) [2002] 2 Lloyd’s Rep 293 and Bessant v South Cone Inc [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a ‘rehearing’ under the Rules of the Supreme Court and should be its approach on a ‘review’ under the Civil Procedure Rules 1998.
Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
In Todd’s case [2002] 2 Lloyd’s Rep 293, where the question was whether a contract of service existed, Mance LJ drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows, at p 319-320, para 129:
‘With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of ‘review’ may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment – such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was ‘wrong’ and to ‘draw any inference of fact which it considers justified on the evidence’ indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious.’ . . Neuberger J stressed that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Thorpe LJ agreed with both judgments.’

Judges:

Ward, Clarke LJJ, Sir Christopher Staighton

Citations:

Times 29-Nov-2002, Gazette 23-Jan-2003, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140

Links:

Bailii

Statutes:

Civil Procedure Rules 52.11

Jurisdiction:

England and Wales

Citing:

Explained – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Cited – In re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – The Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Cited – Todd and Others v Adams and Another CA 18-Apr-2002
The boat owners had failed to comply with the 1975 safety rules, and seamen died. The boat owners relied upon the restriction on damages in the 1995 Act, and the seamen’s families argued that the failure to apply the safety rules removed that . .
Cited – Bessant and others v South Cone Incorporated; in re REEF Trade Mark CA 28-May-2002
The Reef pop group applied to register ‘REEF’ for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of ‘Reef Brazil’ for the footwear which also was included in Class 25. South’s reputation was . .
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Cited – St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .
Cited – JEB Fasteners Ltd v Marks, Bloom and Co CA 1981
Accountants prepared audited accounts knowing that the company was in financial difficulties, and the the accounts would be relied upon by the plaintiffs.
Held: The accountants owed a duty of care to the plaintiffs. They knew that they would . .
Cited – Smith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
Cited – Redgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
Cited – Abrahams v Mediterranean Insurance and Reinsurance Co Ltd 1991
. .
Cited – Joyce v Yeomans CA 1981
The court discussed how an appellate court should defer to the assessment of a judge at first instance of the value of an expert witness.
Brandon LJ said: ‘even when dealing with expert witnesses, a trial judge has an advantage over an . .
Cited – Pan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994
The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
Held: ‘material circumstance’ which . .
Cited – The Glannibanta CA 1876
‘Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [The Julia 14 Moo P.C. 210 and The Alice L.R. 2 P.C. 245], the great weight that is due to the decision of a judge of first instance whenever, in a . .
Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .

Cited by:

Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Cited – Sinclair Roche and Temperley (A Firm) v Somatra Ltd (Damages) CA 23-Oct-2003
The ‘Somatra’ was lost at sea. The insurance claim had been refused on the basis that the ship was unseaworthy. The owners came to instruct the appellant solicitors to represent them in the insurance claim. Having lost confidence in the solicitors, . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Cited – IS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Cited – Bathurst (As Administrator of the Estate of Michael David Bathurst Deceased) v Scarborow CA 1-Apr-2004
The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – London Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
Cited – AIC Ltd v ITS Testing Services (UK) Ltd (‘the Kriti Palm’) CA 28-Nov-2006
The defendant appealed a finding of deceit. Having issued its certificate as to the quality of a cargo of gasoline, it then failed to disclose to the party who had paid it to produce the certificate, information it had which cast doubt on the . .
Cited – Norwich Union Insurance Ltd v Meisels and Another QBD 9-Nov-2006
The claimants sought payment for water damage under their policies. The insurer alleged non-disclosure. The judge had found the claimants to be honest, and criticised the defendants witnesses. The claimants had been involved in companies which had . .
Approved – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Cited – Haw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Cited – Ali v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
Cited – Alford v Cambridgeshire Police CA 24-Feb-2009
The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Cited – Garratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
Cited – Hussain v Hussain and Another CA 23-Oct-2012
The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Whitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
Cited – Home Office v Lowles CA 29-Jul-2004
The defendant appealed against finding of liability. The claimant, an officer ar Armley Prison had been redirected to a side entrance. There was a ramp, but at the top was a two inch step. The parties had disputed the exact circumstances of the . .
Cited – Plevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Cited – Shagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .
Cited – Actavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Professional Negligence, Insurance, Litigation Practice

Leading Case

Updated: 11 February 2022; Ref: scu.178103

Konkola Copper Mines Plc v Coromin: Admn 10 May 2005

Re-insurers liability under Part 20 claims.

Judges:

Colman J

Citations:

[2005] EWHC 898 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – 889457 Alberta Inc v Katanga Mining Ltd and others ComC 5-Nov-2008
The parties had set out on a joint venture with deeds providing for control of the shareholdings in each other. The claimant asserted a breach of the deed and sought a remedy. The first defendant company, incorporated in Bermuda argued that the . .
Appeal from – Konkola Copper Mines Plc and Another v Coromin Ltd and others CA 17-Jan-2006
A stay was sought to allow other proceedings to continue.
Held: A stay of the court’s own proceedings in support of an arbitration elsewhere ‘required rare and compelling circumstances’. . .
See Also – Konkola Copper Mines Plc and Another v Coromin Ltd. and others No.2 ComC 16-May-2006
. .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 07 February 2022; Ref: scu.224892

Overseas Union Insurance Ltd and others v New Hampshire Insurance Company: ECJ 27 Jun 1991

ECJ Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the rules applicable to lis alibi pendens set out therein must be applied irrespective of the domicile of the parties to the two sets of proceedings. Without prejudice to the case where the court second seised has exclusive jurisdiction under the Convention and in particular under Article 16 thereof, Article 21 of the Convention must be interpreted as meaning that, where the jurisdiction of the court first seised is contested, the court second seised may, if it does not decline jurisdiction, only stay the proceedings and may not itself examine the jurisdiction of the court first seised.

Citations:

C-351/89, [1992] QB 434, [1991] EUECJ C-351/89

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 03 February 2022; Ref: scu.160375

Muirhead v The Forth and North Sea Steamboat Mutual Insurance Association: HL 17 Nov 1893

A mutual steamboat insurance company passed a special resolution altering one of its articles of association by inserting a regulation that it should be a condition of any insurance effected by the company on any vessel that the assured should keep one-fifth of the value of such vessel uninsured. The resolution was confirmed on the same day as it was passed contrary to the provisions of section 51 of the Companies Act 1862, which require a fortnight to elapse between the passing and confirming of a special resolution. After the resolution was registered a shipowner insured a vessel with the company for pounds 1000. The declared value of the vessel was pounds 3750, and it was provided in the policy that the articles of association should be deemed part thereof. The shipowners subsequently insured the same vessel with another company for pounds 3000.
In an action by the shipowner, held ( aff. the judgment of the First Division) that as the regulation contained in the special resolution was not contrary to the original articles of association, and was perfectly legal in itself, it was quite within the power of the company to make it a condition of the policies issued by them; that though the regulation had not validly been made part of the articles of association, the pursuer having accepted it as part of his contract, and having violated the condition it contained, could not recover under his policy.
A shipowner insured a steamer with an insurance company, the policy providing that the steamer for the purposes of the agreement between the insurers and the assured was and should be valued at pounds 3750.
Held ( aff. the judgment of the First Division) that in considering whether the assured had violated a condition of the policy which required him to keep one-fifth of the value of the steamer uninsured, the value of the steamer must be taken to be the value declared in the policy.

Judges:

Lord Chancellor (Lord Herschell)), and Lords Watson, Ashbourne, Shand, and Bowen

Citations:

[1893] UKHL 467, 31 SLR 467

Links:

Bailii

Jurisdiction:

Scotland

Company, Insurance

Updated: 31 January 2022; Ref: scu.633308

Impact Funding Solutions Ltd v AIG Europe Insurance Ltd: SC 26 Oct 2016

Solicitors had arranged loans to cover for clients the disbursements to be made for litigation. The solicitors had then acted so as to breach the agreements, and upon being called on themselves to repay, the solicitors went into liquidation. The court was now asked whether their professinal insurers were liable to the cients, when the insurance contracts excluded ‘trading liabilities’.
Held: The insurers’ appeal succeeded.

Lord Mance , Lord Sumption , Lord Carnwath , Lord Toulson , Lord Hodge JJSC
[2016] UKSC 57, [2016] 3 WLR 1422, [2016] WLR(D) 558
Bailii, WLRD
England and Wales

Insurance, Legal Professions

Updated: 25 January 2022; Ref: scu.570981

Wave Lending Ltd v Batra and Another: ChD 13 Sep 2016

The claimant had brought proceedings against the two defendants in 2009. A private settlement was reached with the first defendant, but the second, a then bankrupt firm of solicitors took no part. The claimant now sought to restore the claima against the solicitors. It was now said that the claim should be dismissed on the basis that the claimant and the solicitors had acted dishonestly and there were no funds for payment of any damages, insurance cover having been repudiated.
Held: The 2010 Act was not in force at the time of the application.

Marsh, Chief Master
[2016] EWHC 2238 (Ch)
Bailii
Third Party (Rights Against Insurers) Act 2010
England and Wales

Litigation Practice, Legal Professions, Insurance

Updated: 23 January 2022; Ref: scu.569415

UK Insurance Ltd v Rands Pilling (T/A Phoenix Engineering): CA 12 Apr 2017

Sir Terence Etherton MR, Beatson, Henderson LJJ
[2017] EWCA Civ 259, [2017] WLR(D) 286, [2017] 4 All ER 199, [2017] QB 1357, [2017] 3 WLR 450, [2017] Lloyd’s Rep IR 463, [2017] RTR 25
Bailii, WLRD
England and Wales
Citing:
Appeal from – UK Insurance Ltd v Holden QBD 2017
The car owner was repairing his car, but his negligence caused a fire which extended to a neighbour’s property. The insurance companies sought declarations as to liability under his road traffic insurance policy. . .

Cited by:
Appeal from (CA) – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Updated: 23 January 2022; Ref: scu.582101

RoadPeace v Secretary of State for Transport: Admn 7 Nov 2017

RoadPeace challenged certain legislation, as to compulsory insurance for motor vehicles, and for payment of compensation for personal injury and damages caused by uninsured driver, saying that it failed properly to implement European law.
Held: Ouseley J recorded and accepted the view of the Secretary of State for Transport and the Motor Insurers’ Bureau that section 145(3)(a) could not be read down and that there required to be amending legislation.

Ouseley J
[2017] EWHC 2725 (Admin), [2017] WLR(D) 736
Bailii, WLRD
Road Traffic Act 1988 145 151 153(3), Third Parties (Rights Against Insurers) Act 2010 1(4), European Communities (Rights Against Insurers) Regulations 2002, Parliament and Council Directive 2009/103/EC
England and Wales
Cited by:
Cited – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .

Lists of cited by and citing cases may be incomplete.

European, Personal Injury, Road Traffic, Insurance

Updated: 23 January 2022; Ref: scu.599418

Vnuk v Zavarovalnica Triglav DD: ECJ 26 Feb 2014

ECJ Opinion – Automobile Liability Insurance – Concept of ‘vehicular’ – Accident caused by a tractor with a trailer during harvest bales of hay in a barn

Mengozzi AG
C-162/13, [2014] EUECJ C-162/13, [2014] EUECJ C-162/13, [2016] RTR 10
Bailii, Bailii
European
Cited by:
Cited – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Updated: 23 January 2022; Ref: scu.521842

R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd: SC 27 Mar 2019

The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and claimed an indemnity from the driver. His motor policy covered him, as required in respect of third party claims from any accident involving his car while being driven or used on a public road. His insurer sought a declaration that the policy did not cover the claim against the driver since the policy limited itself to use on roads. The repair did not fall within ‘use’ for the purposes of section 145(3) of the Act. The owner of the repair premises counterclaimed for a declaration that the motorist’s insurer was liable for damage suffered and third parties arising from the fire. The judge granted the declaration sought by the motorist’s insurer but the Court of Appeal allowed an appeal by the owner of the premises and granted the declaration sought in the counterclaim.
Held: The appeal succeeded. The policy was to be construed so that its third party cover met the RTA requirements>
of the RTA. The certificate did not purport to provide additional cover in itself, and
because the relevant legislation treats a certificate of insurance as distinct from a policy, it is therefore necessary to read words into clause 1a. The CA had gone too far in making the extension to cover the losses.
‘Use’ in EU law is not confined to a road or other public place. It extends to any use of a vehicle as a means of transport. To comply with EU law, Parliament may need to reconsider the wording of the RTA, but the RTA may not be ‘read down’ to comply by excising the words ‘on a road or other public place’ because this would go against the grain and thrust of the legislation. It is therefore the cover required by the RTA, not EU law, that must be read into the policy. In case of such an omission being identified, the Court may adopt a corrective construction, but here such an extension beyond the RTA express provisions but no further.
In this case it was the negligence in the conduct of the repair, not any use of the vehicle which caused the actual damage.

Baroness Hale of Richmond Psc, Lord Wilson, Lord Hodge, Lady Arden,Lord Kitchin Jjsc
[2019] UKSC 16, UKSC 2017/0096, [2019] 2 All ER (Comm) 793, [2019] 3 All ER 917, [2019] Lloyd’s Rep IR 404, [2019] 2 WLR 1015, [2019] WLR(D) 199, [2020] AC 1025, [2019] RTR 28
Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, SC 18 Dec 13 am Viudeo, SC 18 Dec 13 pm Video, WLRD
Road Traffic Act 1988
England and Wales
Citing:
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Vnuk v Zavarovalnica Triglav DD ECJ 26-Feb-2014
ECJ Opinion – Automobile Liability Insurance – Concept of ‘vehicular’ – Accident caused by a tractor with a trailer during harvest bales of hay in a barn . .
Approvee – Lister v Romford Ice and Cold Storage Co Ltd CA 1956
Where an employer is found vicariously liable for an employee’s actions, they are entitled to recover an indemnity from them, to cover such losses.
Held: An accident which occurred in the yard of a slaughterhouse did not arise out of use on . .
Cited – Inman v Kenny and Another CA 12-Jan-2001
The claimant was sat below an embankment. A motorcycle driven by the defendant left the path at the top of the embankment landing on her causing serious injuries. . .
Cited – Lewis v Tindale and Others QBD 14-Sep-2018
The court was asked as to the liability of the Motor Insurer’s Bureau for an accident not occurring on a public road.
Held: Soole J said that section 145 should not be read down, because reading down would go against the grain and thrust of . .
Cited – RoadPeace v Secretary of State for Transport Admn 7-Nov-2017
RoadPeace challenged certain legislation, as to compulsory insurance for motor vehicles, and for payment of compensation for personal injury and damages caused by uninsured driver, saying that it failed properly to implement European law.
At First Instance – UK Insurance Ltd v Holden QBD 2017
The car owner was repairing his car, but his negligence caused a fire which extended to a neighbour’s property. The insurance companies sought declarations as to liability under his road traffic insurance policy. . .
Appeal from (CA) – UK Insurance Ltd v Rands Pilling (T/A Phoenix Engineering) CA 12-Apr-2017
. .
Cited – Elliott v Grey QBD 1959
The defendant had left his car on the roadway. It was raised on bricks, and the battery was removed. He appealed his conviction for it not being insured.
Held: The conviction was correct. The acts of the defendant fell within the mischief of . .
Cited – Clarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
Cited – Pumbien v Vines QBD 14-Jun-1995
A car on left on the road is used for MOT and insurance purposes even though it might be immobilized. . .
Cited – Brown v Roberts 1965
The statutory concept of ‘use’ where a vehicle is parked but not lawfully drivable is that the owner has an element of control, management or operation of the vehicle while it is on the road . .

Lists of cited by and citing cases may be incomplete.

Insurance, Road Traffic, European

Updated: 23 January 2022; Ref: scu.635122

Hebdon v West: 13 Feb 1863

Hebdon claimed under a policy with ILA in the sum of pounds 2500 on the life of X. Hebdon was employed in a bank of which X was the senior and managing partner. In 1855 Hebdon was employed on a seven-year contract at pounds 600 a year. He also owed the bank pounds 4700 on loans. X had assured Hebdon that during X’s life Hebdon would not be called upon to repay the loan. Hebdon, with X’s permission, in 1856, insured X’s life with another company (CGLI) for pounds 5000 so as to provide against the loan. 12 months later, the debt having increased to pounds 6000, Hebdon took out the policy with ILA which was the subject of the proceedings. X died in 1861. CGLI paid pounds 5000 which Hebdon paid to the bank. ILA contended that Hebdon had no interest in X’s life within the meaning of the 1774 Act or that his interest was less than the pounds 2500 so that he should recover less pursuant to section 3.
Held: There was no insurable interest at all in X’s assurance that the loan would not be called because there was no consideration for the assurance and it was not therefore a binding agreement such as could be ‘considered as a pecuniary or indeed any appreciable interest in the life of X’. There was an insurable interest in Hebdon’s salary (for 5 more years at pounds 600 a year) at the time the policy was effected, and so in a sum in excess of the value of the ILA policy, but nonetheless that because the value of that interest had been paid by CGLI Hebdon could recover nothing by virtue of section 3 of the Act. The ‘question’ which arose was whether the payment of pounds 5000 by CGLI ‘is a bar to the plaintiff’s claim by virtue of [Section 3] it being taken as a fact that the pounds 5000 included all the insurable interest that the plaintiff had at the time of making both policies; in fact that the interest of the plaintiff at the time of making the insurance with the defendant was the same as that which he had when he made the insurance with [CGLI] . . . It was said that . . the object of the statute would be defeated, as a small amount of insurable interest might be made the foundation for a great number of insurances, each to the amount of the whole interest of the insured . . .’ The court referred to the use of the words ‘insurer or insurers’ in section 3 as an indication that recovery could only be made once (rejecting, to my mind, a compelling submission that the use of the plural contemplated several insurers on one policy) ‘Looking to the declared object of the legislature, we are of the opinion that though, upon a life policy, the insurable interest at the time of the making the policy, and not the interest at the time of death, is to be considered, it was intended by the 3rd section of the Act that the insured should in no case recover or receive from the insurers (whether upon one policy or many) more than the insurable interest which the person making the insurance had at the time he insured the life. If for greater security he thinks fit to insure with many persons and by different contracts of insurance, and to pay the premiums upon each policy, he is at liberty to do so, but he can only recover or receive upon the whole the amount of his insurable interest, and if he has received the whole amount from one insurer he is precluded by the terms of the 3rd section of the statute from recovering or receiving any more from the others. Any argument arising from the supposed hardship of allowing the insurers in such a case to receive and retain the premiums without being obliged to pay the consideration for which such premiums were paid, would be equally applicable to the case of marine assurances, upon which, however many policies there may be, the underwriters are only liable to the extent of the value insured.’

Wightman J
(1863) 3 B and S 579, [1863] EngR 272
Comonlii
Insurance Act 1774 3
England and Wales
Cited by:
Distinguished – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .

Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 23 January 2022; Ref: scu.180086

UK Insurance Ltd v Holden: QBD 2017

The car owner was repairing his car, but his negligence caused a fire which extended to a neighbour’s property. The insurance companies sought declarations as to liability under his road traffic insurance policy.

[2017] QB 1357
England and Wales
Cited by:
Appeal from – UK Insurance Ltd v Rands Pilling (T/A Phoenix Engineering) CA 12-Apr-2017
. .
At First Instance – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Updated: 23 January 2022; Ref: scu.671591

Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey: ComC 17 May 2002

The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The insurance company declined to pay out under the Act.
Held: The purpose of the Act was to prevent gaming with life policies, by ensuring that the policy owner had an interest in the event insured. The court should consider only whether the insurable interest it had found for section 1, had been insured in a manner which could be characterized as gaming or wagering at the time of the insurance contract.

Mr Justice Langley
Times 17-Jun-2002, Gazette 11-Jul-2002, [2002] EWHC 868 (Commercial), [2002] Lloyd’s Rep IR 807, [2002] 2 All ER (Comm) 492
Bailii
Life Assurance Act 1774 1 2
England and Wales
Citing:
Applied – Dalby v The India and London Life Assurance Company HL 9-May-1851
An insurance company (Anchor) had taken out insurance with the defendant on the life of the Duke of Cambridge in the sum of pounds 1000 for which it paid a yearly premium during the life of the Duke. Anchor had itself granted policies of insurance . .
Distinguished – Hebdon v West 13-Feb-1863
Hebdon claimed under a policy with ILA in the sum of pounds 2500 on the life of X. Hebdon was employed in a bank of which X was the senior and managing partner. In 1855 Hebdon was employed on a seven-year contract at pounds 600 a year. He also owed . .
Appealed to – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey CA 26-Jun-2003
A policy providing a fixed level of benefit, calculated according to the degree of injury could not be avoided under the 1744 Act on the basis that the insured had no insurable interest. The insurance company said the company had no insurable . .
Cited – Lucena v Craufurd HL 1806
Before the declaration of war, against the United Provinces, His Majesty’s ships took possession of several ships belonging to Dutch East India men, and took them to St Helena. The Commissioners then insured the ships for their journey from St . .
Cited – Paterson v Powell 1832
The purpose of the 1774 Act was to prevent ‘gaming’ in the disguise of insurance and in the sense of gambling on the outcome of an uncertain event in which the ‘assured’ had no interest save for the interest created by the very gamble or agreement . .
Cited – Stock v Inglis CA 1884
Buyers of sugar to whom the risk of loss of the sugar but not the property in it had passed had an insurable interest.
Held: ‘Nobody can deny that this is a case of extreme difficulty and of great nicety. In my opinion it is the duty of a . .
Cited – Macaura v Northern Assurance Company Limited HL 1925
Macaura owned the large majority of shares in a limited company, trading in timber. The company also owed him substantial sums. He kept on the insurance of timber and other assets within the business but in his own name. When he came to claim, his . .
Cited – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .
Cited – Deepak Fertilisers v ICI Chemicals CA 1991
P’s methanol plant had been constructed with the use of know-how and services supplied by D. Following completion the plant exploded. The plaintiff sued D for negligence and breach of contract. The plaintiff had undertaken to indemnify D against . .
Cited – Sharp v Sphere Drake Insurance plc (The Moonacre) 1992
S, a retired businessman, had bought a vessel and insured it in his name, but registered it in the name of company, R. In the winter, the boat was laid up, but occupied by a workman who maintained it and kept it secure. The boat was destroyed by a . .
Cited – Siu Yin Kwan and Another v Eastern Insurance Co Ltd PC 16-Dec-1993
Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant . .
Cited – Anderson v Morice 1875
A purchaser of a cargo was held to have no insurable interest in the cargo itself until the risk had passed to him on completion of loading. The only possible insurable interest was on the profits from sale of the cargo but not on the cargo itself . .
Cited – Glengate-KG Properties Ltd v Norwich Union Fire Insurance Society Ltd and Others CA 12-Jan-1996
NU the insurer of a consequential loss insurance policy, appealed against the decision, on a claim brought by G, the owners of a property under redevelopment, which had suffered a fire as to G’s resultant loss of rental income from the property. The . .

Cited by:
Appeal from – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey CA 26-Jun-2003
A policy providing a fixed level of benefit, calculated according to the degree of injury could not be avoided under the 1744 Act on the basis that the insured had no insurable interest. The insurance company said the company had no insurable . .

Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 22 January 2022; Ref: scu.173989

Petromec Inc v Petroleo Brasileiro S A Petrobras and others: ComC 18 Feb 2003

Tomlinson J
[2003] EWHC 179 (Comm)
Bailii
England and Wales
Citing:
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .

Cited by:
See also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc ComC 20-May-2004
. .
See Also – Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others CA 15-Jul-2005
. .
See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others CA 23-Jan-2008
Short order. . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 22 January 2022; Ref: scu.179523

Dalby v The India and London Life Assurance Company: HL 9 May 1851

An insurance company (Anchor) had taken out insurance with the defendant on the life of the Duke of Cambridge in the sum of pounds 1000 for which it paid a yearly premium during the life of the Duke. Anchor had itself granted policies of insurance to a Reverend Wright on the Duke’s life in a total amount of pounds 3000. Anchor’s policy with the Defendant was ‘a cross or counter-assurance’. Before the Duke died Anchor agreed with the Reverend Wright to the surrender and cancellation of his policies in return for an annuity. The issue was whether or not it sufficed that Anchor had an interest in the Duke’s life when the policy with the Defendant was effected or whether such an interest had to subsist at the time of the Duke’s death. No one seems to have bothered with questions whether or not the Reverend Wright had an interest in the Duke’s life.
Held: It was sufficient for the interest to exist at the time the insurance was effected and that its value at that time was recoverable under Section 3. The obligation at that time to pay the Reverend Wright was ‘unquestionably an interest in the continuance of the life of the Duke’ under Section 3.
Parke B said: ‘Now, what is the meaning of this provision? On the part of the plaintiff, it is said it means only, that, in all cases in which the party insuring has an interest when he effects the policy, his right to recover and receive is to be limited to that amount; otherwise, under colour of a small interest, a wagering policy might be made to a large amount, – as it might if the first clause stood alone. The right to recover, therefore, is limited to the amount of the interest at the time of effecting the policy. Upon that value, the assured must have the amount of premium calculated: if he states it truly, no difficulty can occur: he pays in the annuity for life the fair value of the sum payable at death. If he misrepresents, by over-rating the value of the interest, it is his own fault, in paying more in the way of annuity than he ought; and he can recover only the true value of the interest in respect of which he effected the policy: but that value he can recover. Thus, the liability of the insurer becomes constant and uniform, to pay an unvarying sum on the death of the cestui que vie, in consideration of an unvarying and uniform premium paid by the assured. The bargain is fixed as to the amount on both sides. This construction is effected by reading the word ‘hath’ as referring to the time of effecting the policy. By the 1st section, the assured is prohibited from effecting an insurance on a life or on an event wherein he ‘shall have’ no interest, – that is, at the time of assuring: and then the 3rd section requires that he shall recover only the interest that he ‘hath’. If he has an interest when the policy is made, he is not wagering or gaming, and the prohibition of the statute does not apply to his case. Had the 3rd section provided that no more than the amount or value of the interest should be insured, a question might have been raised, whether, if the insurance had been for a larger amount, the whole would not have been void: but the prohibition to recover or receive more than that amount, obviates any difficulty on that head.’

Parke B
(1854) 15 CB 364, [1843-60] All ER Rep 1040, [1851] EngR 463, (1851) 4 De G and Sm 462, (1851) 64 ER 913
Commonlii
Insurance Act 1774 3
England and Wales
Cited by:
Applied – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .

Lists of cited by and citing cases may be incomplete.

Insurance, Damages

Updated: 22 January 2022; Ref: scu.180087

In re Leslie; Leslie v French: ChD 1883

The court gave guidance as to the circumstances in which an individual who had paid a premium on a policy belonging to someone else could claim an interest in the policy: ‘In my opinion a lien may be created upon the moneys secured by a policy by payment of premiums in the following cases: First. By contract with the beneficial owner of the policy. Secondly. By reasons of the right of trustees to an indemnity out of their trust property for money expended by them in its preservation. Thirdly. By subrogation to this right of trustees of some person who may at their request have advanced money for the preservation of the property. Fourthly. By reason of the right vested in mortgagees, or other persons having a charge upon the policy, to add to their charge any moneys which have been paid by them to preserve the property . .’ And ‘except under the circumstances to which I have referred, no lien is created by the payment of the premiums by a mere stranger or by a part owner’.

Justice Fry
(1883) 23 ChD 552
England and Wales
Cited by:
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Strutt v Tippett CA 1890
The list set out in re Leslie for the ways in which one person might claim an interest in an insurance policy in another’s name, was not exhaustive. . .
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .

Lists of cited by and citing cases may be incomplete.

Insurance, Equity

Updated: 20 January 2022; Ref: scu.187411

St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd: CA 1995

The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance at the same premium on terms which included subsidence risk. The court also considered the role played by presumption that if the recipient had known the truth, he would still have been willing to make the contract, but only on different terms, notably, but not only as to premium. ‘The existence of such a presumption is recognised in the authorities (Halsbury’s Laws vol 31 par 1067) ‘Inducement cannot be inferred in law from proved materiality, although there may be cases where the materiality is so obvious as to justify an inference of fact that the representee was actually induced, but, even in such exceptional cases, the inference is only a prima facie one and may be rebutted by counter evidence.’ ‘ and there is ‘the need to distinguish ‘materiality’ from ‘inducement’, although inevitably the two overlap. Here, the evidence of the three underwriters who did give evidence and of the expert witnesses was clear. If the underwriters had been told the true state of the ground conditions, as revealed by the 1982 report, and of the conflicting views expressed by the authors of that report and by Worleys, then they would have called for further information and in all probability either refused the risk or accepted it on different terms. In fact, all four underwriters including Mr Earnshaw accepted it without any relevant enquiries. There is no evidence to displace a presumption that Mr Earnshaw like the other three was induced by the non-disclosure or misrepresentation to give cover on the terms on which he did. In my judgment, these insurers also have discharged their burden of proof.’

Evans LJ
[1995] 2 Lloyds Rep 116
England and Wales
Citing:
Approved – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
Cited – Smith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .

Cited by:
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Mundi v Lincoln Assurance Ltd ChD 24-Nov-2005
The defendant life insurance company sought to avoid payment alleging non-disclosure. At first they suggested first one then a second and then a third reason for non payment as each previous reason looked like failing. They relied now on . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 19 January 2022; Ref: scu.187265

Smith v Chadwick: HL 18 Feb 1884

Unclear Words Insufficient as Representation

A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a prospectus as to the output of the iron works.
Held: His claim failed because the critical words of the prospectus were ambiguous, and the plaintiff had failed to show that he understood them in a sense which was false.
An inference of inducement can be made or rebutted on evidence. Lord Blackburn, said: ‘I think if it is proved that the defendants with a view to induce the plaintiff to enter a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement.’
. . and ‘In Pasley v Freeman, 2 Smith’s Leading Cases 66, 73, 86 (8th ed), Buller J says: ‘The foundation of this action is fraud and deceit in the defendant and damage to the plaintiffs. And the question is whether an action thus founded can be sustained in a court of law. Fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action lies, per Croke J, 3 Bulst 95.’
Whatever difficulties there may be as to defining what is fraud and deceit, I think no one will venture to dispute that the plaintiff cannot recover unless he proves damage. In an ordinary action of deceit the plaintiff alleges that false and fraudulent representations were made by the defendant to the plaintiff in order to induce him, the plaintiff, to act upon them. I think that if he did act upon these representations, he shews damage; if he did not, he shews none.’
Lord Selborne LC said: ‘My Lords, I conceive that in an action of deceit, like the present, it is the duty of the plaintiff to establish two things; first, actual fraud, which is to be judged by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts: and, secondly, he must establish that this fraud was an inducing cause to the contract; for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct.’

Lord Blackburn, Lord Selborne LC
(1884) 9 App Cas 187, (1883-1884) 9 App Cas 187, [1884] UKLawRpAC 4
Commonlii
England and Wales
Cited by:
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Cited – St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .
Cited – Mundi v Lincoln Assurance Ltd ChD 24-Nov-2005
The defendant life insurance company sought to avoid payment alleging non-disclosure. At first they suggested first one then a second and then a third reason for non payment as each previous reason looked like failing. They relied now on . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .

Lists of cited by and citing cases may be incomplete.

Contract, Insurance, Torts – Other

Updated: 19 January 2022; Ref: scu.187266

Mundi v Lincoln Assurance Ltd: ChD 24 Nov 2005

The defendant life insurance company sought to avoid payment alleging non-disclosure. At first they suggested first one then a second and then a third reason for non payment as each previous reason looked like failing. They relied now on non-disclosure of excessive drinking. The policy had lapsed and been re-instated.
Held: The non-disclosure of the drinking with the treatment recommended was material. The court had to look whether the inducement was in fact relied upon by the insurer. The evidence suggested here that the company had done so, and the company was entitled to avoid the policy.

[2005] EWHC 2678 (Ch)
Bailii
England and Wales
Citing:
Cited – Smith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .
Cited – St Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .

Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 19 January 2022; Ref: scu.235540

AAS Balta v UAB Grifs AG: ECJ 27 Feb 2020

(Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Article 15, point 5, and Article 16, point 5 -‘ Major risks ‘insurance – Jurisdiction clause concluded between the policyholder and the insurer – Enforceability of this clause against the insured person

C-803/18, [2020] EUECJ C-803/18
Bailii
European

Insurance

Updated: 17 January 2022; Ref: scu.654755

Great Lakes Reinsurance (UK) SE v Western Trading Ltd: CA 11 Oct 2016

The court was asked whether a company, insured under a policy providing cover against fire, is, or may be, entitled to an indemnity consisting of the cost of reinstatement after the building insured was destroyed by fire.

Laws, Lewison, Christopher Clarke LJJ
[2016] EWCA Civ 1003
Bailii
England and Wales

Insurance

Updated: 16 January 2022; Ref: scu.570111

Stoomvaart Maatsohappij Sophie H v Merchants’ Marine Insurance Co Ltd: HL 20 Nov 1919

A ship was lost owing to encountering mines supposed to have broken loose from Russian minefields protecting the Finnish coast. Under insurance policies the ship was covered against marine risks and damage from explosions, but the insurers were exempt in the case of ‘capture, seizure, detention, and all other consequences of hostilities piracy, riots, civil commotions, and barratry excepted).’ In an action on the policies the appellants contended that the ship was lost by marine and not war risks, and that the clause warranted free from capture, and co., referred to hostile acts which amounted to taking possession of the ship insured and did not include consequences of hostilities which were not ejusdem generis with capture, seizure, and detention, such as the destruction of the ship by drifting mines. Held that the loss of the vessel was the direct consequence of hostilities, and the respondents were not liable therefor under the policies.
Decision of the Court of Appeal affirmed.

Lord Chancellor (Lord Birkenhead) Lords Haldane, Dunedin, and Buckmaster
[1919] UKHL 439, 57 SLR 439
Bailii
England and Wales

Transport, Insurance

Updated: 14 January 2022; Ref: scu.632790

Axa Corporate Solutions Assurance Sa v Weir Services Australia Pty Ltd: ComC 21 Apr 2016

Two applications relating to a coverage dispute under liability insurance policies issued by the claimant insurance company, AXA Corporate Solutions Assurance SA (‘AXA’). The relevant policies are: (1) global liability policies issued in England which insured companies in Weir Group plc including the defendant, Weir Services Australia Pty Limited (‘Weir’), and (2) a ‘broadform’ liability policy issued in Australia in favour of Weir and other subsidiaries of the group in Australia.

Blair J
[2016] EWHC 904 (Comm)
Bailii
England and Wales

Insurance

Updated: 14 January 2022; Ref: scu.562513

Alexander Elliot, and Others v William Wilson and Company of Glasgow, Merchants: HL 25 Nov 1776

Insurance – Deviation.- Brokers were instructed to insure a vessel and cargo, ‘from Carron to Hull, with liberty to call as usual;’ The broker effected the insurance, only with liberty to call at Leith. In former insurances between the same parties, liberty had always been given to call at Borrowstoneness, Leith, Morrison’s Haven, and Preston Pans, and the instructions to the broker were given with reference to that practice. The ship, in the course of her voyage, called at Morrison’s Haven; and thereafter resumed her course, as contained in the policy, and sometime after was lost. Held, that as no permission was given to call at Morrison’s Haven, this deviation vacated the policy.

[1776] UKHL 2 – Paton – 411, (1776) 2 Paton 411
Bailii
Scotland

Insurance

Updated: 13 January 2022; Ref: scu.561842

Robert M’Nair, Merchant In Glasgow v James Coulter and Others, Merchants In Glasgow, Insurers of The Ship Jean and Her Cargo: HL 15 Feb 1773

Valued or Open Policy – Proof – Bill of Lading – Interest.- Insurance for andpound;1000, on ship and cargo, lost on her voyage from Virginia to Barbadoes. The son of the insured was master. The policy proceeded on false information of the value sent by the son to the insured, but without the latters knowledge. The Court of Session held, that the bill of lading was not good evidence of the value and quantities of goods. The question was, Whether he was entitled to recover the sum named in the policy, or the real value of the ship and cargo only. Held, reversing the judgment of the Court of Session, that be was entitled to recover the sum of andpound;1000 named in the policy; also to recover interest thereon.

[1773] UKHL 2 – Paton – 297
Bailii

Scotland, Insurance

Updated: 13 January 2022; Ref: scu.561817

Bristol Alliance Ltd v Williams and Another: QBD 1 Jul 2011

The driver had crashed into the insured’s building causing substantial damage. The court was asked which of the driver’s and building’s insurers should bear the costs. The driver’s insurers said that he had acted deliberately and therefore they were not liable. Though they might even so be liable through the Motor Insurers Bureau, the provisions of that scheme would exempt them where, as here, the claim was under subrogation.
Held: The overriding purpose of the compulsory insurance scheme was to protect innocent third parties. The statute and regulations overrode certain kinds of exceptions which an insurer might place in the policy, but a clause against the causing of damage deliberately was not included. The judgment of Laws LJ in Charlton was to be preferred and the word ‘accident’ and its cognates may be construed so as to include the insured’s own criminal or deliberate acts.

Tugendhat J
[2011] EWHC 1657 (QB)
Bailii
Road Traffic Act 1988 151, The Motor Vehicles (Third Party Risks) Regulations 1972
England and Wales
Citing:
Cited – Beresford v Royal Insurance Co Ltd HL 1938
The forfeiture rule was to be applied in a case involving suicide. An insured may not recover under a policy of insurance in respect of loss intentionally caused by his own criminal or tortious act, however clearly the wording of the policy may . .
Cited – Zurich General Accident and Liability Insurance Co Ltd v Morrison 1942
The statutory requirement for compulsory insurance in the Road Traffic Act 1930 was of little value if it was open to insurers to freely exclude liability for common risks. . .
Cited – Hardy v Motor Insurers’ Bureau CA 1964
The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law . .
Cited – Gardner v Moore HL 1984
The uninsured first defendant deliberately drove a car at the plaintiff who was walking on the pavement, and thus caused serious injuries. The MIB accepted that the trial judge was bound by Hardy to declare that the Bureau was bound to indemnify the . .
Cited – Churchill Insurance v Charlton CA 2-Feb-2001
The victim of an unlawful act of a driver off-road sought damages from another driver and his insurers. The insurers refused to pay.
Held: There is a balance to be found between the statutory purpose of compulsory motor insurance and the . .
Cited – Criminal proceedings against Ruiz Bernaldez ECJ 28-Mar-1996
Europa In the preliminary-ruling procedure under Article 177 of the Treaty, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to . .
Cited – Wragg and Another v Partco Group Ltd UGC Ltd CA 1-May-2002
A claim was made against directors of a company involved in a takeover, for failure to make proper disclosure. The case involved also other issues. The defendants appealed against a refusal to strike out the claim.
Held: The rules made . .
Cited – EB v France ECHR 30-Sep-2009
. .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Updated: 12 January 2022; Ref: scu.441423

Newbury v Davis: QBD 1974

The owner of a vehicle agreed to lend it to someone else on condition that that person insured against third party risks. In the owner’s absence, that person drove the car on a road without insurance.
Held: The appeal against conviction was allowed: ‘the defendant did not permit Mr Jarvis to use the car. The defendant gave no permission to use it unless Mr Jarvis had a policy of insurance to cover its use, and he had none. Having no policy of insurance, he took the vehicle without the defendant’s permission. In other words, permission given subject to a condition which is unfulfilled is no permission at all. It may be that the difference is a small one between a case where the owner gives unconditional permission in the mistaken belief that the use is covered by insurance, or in the disappointed hope that it will be covered, and the case where the permission is given subject to a condition and that condition is not fulfilled. But to my mind there is a difference and it is one of legal substance. On this view of the case the defendant committed no offence.’

Lord Widgery CJ, MacKenna J
[1974] RTR 367
Road Traffic Act 1972
England and Wales
Cited by:
Cited – Philip Owen Lloyd-Wolper v Robert Moore; National Insurance Guarantee Corporation Plc, Charles Moore CA 22-Jun-2004
The first defendant drove a car belonging to his father and insured by his father. The father consented to the driving but under a mistaken belief that his son was licensed. The claimant was injured by the defendant in a road traffic accident.
Distinguished – Baugh v Crago QBD 1975
The defendant believed that a driver was the holder of a driving licence and permitted him to use the vehicle, when the driver was not in fact such a holder. The prosecutor appealed his acquittal.
Held: Considering Newbury v Davis. The . .
Cited – Ferrymasters Ltd v Adams 1980
Employers were alleged to have caused or permitted an employee to drive a vehicle on the road while not holding a driving licence authorising him to do so. When the employee had entered the employment, the employers had ensured that he held a valid . .
Distinguished – Director of Public Prosecutions v Fisher QBD 1992
F was asked to lend L a car. F knew L was disqualified, but agreed provided L found an insured driver with a full valid driving licence. F did not know who L would ask or that he in fact asked R to drive; R was employed as delivery driver and the . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Leading Case

Updated: 12 January 2022; Ref: scu.199925

Cameron v Hussain and Another: CA 23 May 2017

The court was asked: ‘i) whether it is possible to obtain a judgment in respect of a claim for damages against a defendant identified only by description (‘an unnamed defendant’), in the context of a motor claim against an unidentified hit-and-run driver, where the vehicle was identified and an insurance policy had been effected in respect of such vehicle in the name of either a non-existent person or someone who was not traceable;
ii) whether an insurer would be liable to satisfy any unsatisfied judgment against such an unnamed defendant under section 151 of the Road Traffic Act 1988 (‘the 1988 Act’);
iii) whether the judges below were right to refuse to allow the claimant permission to amend her claim form and particulars of claim so as to substitute, for the named first defendant, a defendant identified only by the following description:
‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013.”

Gloster VP, Lloyd Jones LJJ, Sir Ross Cranston
[2017] WLR(D) 353, [2017] EWCA Civ 366, [2017] PIQR P16, [2018] 1 WLR 657, [2017] RTR 23, [2017] Lloyd’s Rep IR 487
WLRD, Bailii
England and Wales
Cited by:
Appeal from – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Updated: 10 January 2022; Ref: scu.584251

Gurtner v Circuit: CA 1968

The Court described the gap in provision for the recovery of damages for injury where the driver of a vehicle was uninsured: ‘if (a) the defendant was not insured at the time of the accident or (b) his policy of insurance was avoided in the circumstances specified in section 10(3) of the Road Traffic Act 1934 for non-disclosure or misrepresentation or (c) his insurer too was insolvent. To fill this gap the insurers transacting compulsory motor vehicle insurance business in Great Britain, acting in agreement with the Minister of Transport, formed a company, the Motor Insurers’ Bureau, to assume liability to satisfy judgments of these three kinds. But instead of amending the legislation so as to impose upon the Motor Insurers’ Bureau a statutory liability to the unsatisfied judgment creditor as had been done by the Road Traffic Act, 1934, in respect of the liability of insurers to satisfy judgments against defendants covered by a valid policy of insurance, the matter was dealt with by an agreement of June 17, 1946, between the Minister of Transport and the Motor Insurers’ Bureau. To this contract, for that is all that it is in law, no unsatisfied judgment creditor is a party. Although clearly intended by both parties to be for the benefit of such creditors, the Minister did not enter into it otherwise than as a principal. He was not purporting to act as agent so as to make it capable in law of ratification by those whom it was intended to benefit. Many of them were not born at the time when it was made. The only person entitled to enforce the contract is the Minister. I do not doubt that upon the principle accepted by the House of Lords in Beswick v Beswick [1968] AC 58 the Minister could enforce it by obtaining a judgment for specific performance which, once obtained, could be enforced against the bureau by the unsatisfied judgment creditor in whose favour the order for specific performance was made. But the Minister is the only party entitled to bring an action to enforce the contract. It confers no right of action against the Motor Insurers’ Bureau upon any unsatisfied judgment creditor.’
Diplock LJ: ‘A matter in dispute is not in my view effectually and completely adjudicated upon unless the rules of natural justice are observed and all those it will be liable to satisfy the judgment are given an opportunity to be heard.’

Diplock LJ
[1968] 2 QB 587
Road Traffic Act 1934 810(3)
England and Wales
Citing:
Disapproved – Amon v Raphael Tuck and Sons Ltd 1956
The court analysed the circumstances under which additional parties might be joined to an action by a defendant, applying a narrow interpretation. The court considered whether a defendant may be added against the parties’ wishes: ‘There are two . .

Cited by:
Cited – Balkanbank v Naser Taher and Others QBD 13-Feb-1995
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered . .
Cited – Humber Work Boats Ltd v ‘Selby Paradigm’, Owners of Mv and others AdCt 23-Jul-2004
The barge had become holed when run aground and then repaired. The repair was faulty, and it sank. The insurers rejected the claim saying that the owners had failed to disclose a report showing areas of thinning of the hull. The underwriters sought . .
Cited – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Road Traffic, Insurance

Updated: 10 January 2022; Ref: scu.200494

Hill v Generali Zrt: QBD 14 Dec 2021

Whether a subrogated claim by an insurer can be brought in the name of an English motorist in an English court together with his claim for uninsured losses against a Hungarian insurer in respect of a pre-Brexit accident in Germany. The judge below held that it could not but acknowledged that the question was not free from doubt and granted the motorist permission to appeal.

The Honourable Mr Justice Pepperall
[2021] EWHC 3381 (QB)
Bailii
England and Wales

Insurance, Jurisdiction

Updated: 10 January 2022; Ref: scu.670544

Sobrany v UAB Transtira: CA 28 Jan 2016

‘another chapter in the long running saga of disputes between insurers about liability to indemnify claimants in respect of the cost of hiring replacement vehicles whilst their cars are being repaired following a road traffic accident.’

[2016] EWCA Civ 28
Bailii
England and Wales

Insurance

Updated: 09 January 2022; Ref: scu.559380

Esso Petroleum Co Ltd v Hall Russell and Co Ltd (The Esso Bernicia): HL 1989

Lord Goff of Chieveley said: ‘In normal cases, as for example under contracts of insurance, the insurer will on payment request the assured to sign a letter of subrogation, authorising the insurer to proceed in the name of the assured against any wrongdoer who has caused the relevant damage to the assured. If the assured refuses to give any such authority, in theory the insurer can bring proceedings to compel him to do so. But nowadays the insurer can short-circuit this cumbrous process by bringing an action against both the assured and the third party in which (1) he claims an order that the assured shall authorise him to proceed against the third party in the name of the assured and (2) he seeks to proceed (so authorised) against the third party. But it must not be thought that, because this convenient method of proceeding now exists, the insurer can without more proceed in his own name against the third party. He has no right to do so, so long as the right of action he is seeking to enforce is the right of action of the assured. Only if that right of action is assigned to him by the assured can he proceed directly against the third party in his own name.’
The vessel Esso Bernicia was involved in an accident while berthing at Sullom Voe terminal under the control of tugs. The failure of a piece of equipment on board one of the tugs caused the vessel to come into contact with the jetty as a result of which both the vessel and the jetty sustained damage and the foreshore in the area of the terminal was contaminated by fuel oil. Esso paid compensation to the owners of the jetty and to crofters whose sheep had been injured by the pollution of the foreshore and sought to recover from the builders of the tug, Hall, Russell and Co., on the grounds that they had been negligent in its design and construction. Esso contended that it was entitled to be subrogated to the claims of the jetty owners and the crofters against Hall Russell in tort and could pursue those claims in its own name.
Held: Esso it could pursue the claims of the jetty owners and the crofters only in their names. Esso’s payment did not discharge Hall Russell’s liability, and for the same reason Esso could not make a claim in restitution because Hall Russell had not been enriched at its expense. An indemnifier who is subrogated to the rights of someone whom he has indemnified can only pursue those rights in the name of that person.

Lord Jauncey, Lord Goff of Chieveley
[1989] 1 AC 643, [1989] AC 643, [1989] 1 All ER 37, [1989] 1 Lloyds Rep 8, [1989] 1 All ER 37
England and Wales
Cited by:
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .

Lists of cited by and citing cases may be incomplete.

Damages, Insurance

Updated: 08 January 2022; Ref: scu.191164

Re HSBC Life (UK) Ltd: ChD 24 Jul 2015

Part 8 claim form which seeks an order under s.111 of the 2000 Act sanctioning an insurance business transfer scheme, together with ancillary orders under s.112 FSMA. The Scheme effects the transfer of HLUK’s pensions business to ReAssure.

Snowden J
[2015] EWHC 2664 (Ch)
Bailii
Financial Services and Markets Act 2000 111 8112
England and Wales

Insurance

Updated: 05 January 2022; Ref: scu.553688

R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others: ComC 29 Jan 2007

A company may be able to claim for the wasted time spent by its staff investigating the matter at issue without having to show additional expenditure or loss of revenue or profit.

Gloster J
[2007] EWHC 79 (Comm)
Bailii
England and Wales
Cited by:
Appeal from – R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others CA 30-Jul-2007
. .
Cited – Nationwide Building Society v Dunlop Haywards (HLl) Ltd (T/A Dunlop Heywood Lorenz) and Cobbetts ComC 18-Feb-2009
The claimant had leant money on a property fraudulently overvalued by an employee of the now insolvent first defendant. A contribution order had been agreed by the solicitors. The court heard applications by the claimants and the solicitors against . .

Lists of cited by and citing cases may be incomplete.

Insurance, Damages

Updated: 04 January 2022; Ref: scu.248270

Diab v Regent Insurance Company Ltd: PC 19 Jun 2006

(Belize) The appellant’s premises were destroyed by fire. The insurer respondents refused payment, saying that the claimant had delayed notification, had stored ammunition, and had started the fire himself.
Held: Lord Scott referered to his scepticism as to whether absolute compliance with a 15-day time limit in a fire insurance policy would be regarded as always necessary in all circumstances. However the appeal failed on other grounds.

Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Sir Martin Nourse
[2006] UKPC 29
Bailii
Commonwealth
Citing:
Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
Cited – In re Coleman’s Depositories Ltd CA 1970
An insurance policy covered the liability of an employer to compensate his workmen for injuries in the course of their employment. The court was asked whether it incorporated a condition requiring the employer to give immediate notice to the insurer . .
Cited – United Scientific Holdings v Burnley Borough Council HL 1978
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option . .

Cited by:
Cited – Shinedean Ltd v Alldown Demolition (London) Ltd and Another CA 20-Jun-2006
The second defendant insurers appealed a finding of liability, saying that the insured had failed to provide its documents within a reasonable time in order to meet a condition to that effect in its terms. The documents had not been provided for . .

Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 04 January 2022; Ref: scu.242922

AXA General Insurance Limited v Gottlieb: CA 11 Feb 2005

The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once established, affected the entire claim. The whole claim was forfeit, and the interim payment was repayable. However, there is no basis or reason for giving the common law rule relating to fraudulent claims a retrospective effect on prior, separate claims which have already been settled under the same policy before any fraud occurs: ‘the proper scope of the common law rule relating to fraudulent insurance claims is to forfeit the whole of the claim to which the fraud relates, with the effect that the consideration for any interim payments made on that claim fails and they are recoverable.’

Lord Justice Pill Lord Justice Keene Lord Justice Mance
[2005] EWCA Civ 112, Times 03-Mar-2005, [2005] 1 All ER (Comm) 445)
Bailii
England and Wales
Citing:
Cited – Sayers v Clarke Walker (A firm) CA 14-May-2002
In a case of any complexity, when an appeal court considered an application for leave to appeal which was filed out of time, it should have in mind the matters listed in the rules. It was not appropriate to use judge made checklists where one was . .
Cited – Insurance Corporation of the Channel Islands Ltd and Another v Charles Joseph McHugh and Another ComC 1-Jul-1996
ComC Insurance – Marine Insurance Act 1906 – common law – duty not to make fraudulent claims – contractual provision – Conspiracy – injury by unlawful means – intention – combination – breach of duty – right to . .
Cited – Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) HL 1992
The effect of breach of an insurance warranty is automatic, rather than dependant on any acceptance or election.
Lord Goff of Chieveley said: ‘So it is laid down in section 33(3) that, subject to any express provision in the policy, the insurer . .
Cited – Galloway v Guardian Royal Exchange (UK) Limited CA 15-Oct-1997
The claimant’s policy had been declared void ab initio by the court. On the application form he had falsely stated that he had no convictions, but had only shortly before been convicted of obtaining a pecuniary advantage by deception. Part of the . .
Cited – Agapitos and Another v Agnew and others ComC 24-Jul-2002
The common law principle governing fraudulent claims has a separate origin and existence to any principle that exists under or by analogy with s.17 of the Act. . .
Cited – Strive Shipping Corporation and Another v Hellenic Mutual War Risks Association (Bermuda) Ltd ComC 25-Mar-2002
Grecia Express
. .
Cited – Direct Line Insurance Plc v Khan and Another CA 11-Oct-2001
If part of an insurance claim is shown to be fraudulent, the entire claim is avoided. . .
Cited – Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .
Cited – Beresford v Royal Insurance Co Ltd CA 1937
Major Beresford had shot himself. The court considered the applicability of the forfeiture rule in a case involving a suicide: ‘suicide when sane is by English law a felony. This has been so from very early times. The law is thus succinctly stated . .
Cited – Direct Line Insurance Plc v Khan and Another CA 11-Oct-2001
If part of an insurance claim is shown to be fraudulent, the entire claim is avoided. . .
Cited – Coral Leisure Group Ltd v Barnett EAT 1981
The court was asked whether any taint of illegality affecting part of a contract necessarily rendered the whole contract unenforceable by a party who knew of the illegality. In the case of a contract not for an illegal purpose or prohibited by . .

Cited by:
Cited – Shah v Ul-Haq and Others CA 9-Jun-2009
The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .

Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 04 January 2022; Ref: scu.222783

Daff v Midland Colliery Owners’ Mutual Indemnity Co Ltd: HL 28 Jul 1913

Where membership of a mutual insurance society had been terminated upon the ground of alleged failure to pay a due call, held that, under the contract, the right to recover compensation for an accident, which had occurred in the past but involved a continuing liability, could not be forfeited, but upon the bankruptcy or liquidation of the late member, his right to recover from the insurer passed, in virtue of section 5 of the Workmen’s Compensation Act 1906, to the injured workman.

51 SLR 564
[1913] UKHL 564, 51 SLR 564
Bailii
England and Wales

Personal Injury, Insurance, Employment

Updated: 04 January 2022; Ref: scu.632747

Pruller-Frey v Norbert Brodnig, Axa Versicherung AG: ECJ 9 Sep 2015

ECJ Judgment – Reference for a preliminary ruling – Air carrier liability in the event of accidents – Action for damages – Montreal Convention – Regulation (EC) No 2027/97 – Flight operated free of charge by the owner of a property in order to show that property to a prospective purchaser – Regulation (EC) No 864/2007 – Direct action provided for by national law against the civil-liability insurer

A. Tizzano, P
C-240/14, [2015] EUECJ C-240/14, ECLI:EU:C:2015:567
Bailii
Regulation (EC) No 864/2007, Regulation (EC) No 2027/97

European, Personal Injury, Insurance

Updated: 03 January 2022; Ref: scu.552092