Category: Insurance

Barr and Others v Biffa Waste Services Ltd: TCC 15 May 2009

The Claimants were the residents of a housing estate who applied for a Group Litigation Order to pursue their claim of nuisance and negligence against a waste contractor. The Defendant requested the disclosure of their ‘after the event’ insurance policy as a condition of the GLO.
Held: The policy was disclosable both under CPR31.14 and under the court’s case management powers. This was an exception to the traditional approach that insurance policies are private as between the insured and insurer and thus not disclosable.

Citations:

[2009] EWHC 1033 (TCC)

Links:

Bailii

Statutes:

Civil Procedure Rules 3.14

Jurisdiction:

England and Wales

Cited by:

See Also – Barr and Others v Biffa Waste Services Ltd (No.2) TCC 2-Oct-2009
. .
See Also – Barr and Others v Biffa Waste Services Ltd (No 3) TCC 19-Apr-2011
The claimants sought damages in nuisance saying that the defendant’s waster recycling plant was causing odorous pollution of their nearby homes. . .
See Also – Barr and Others v Biffa Waste Services Ltd [No 4] TCC 19-Apr-2011
. .
See Also – Barr and Others v Biffa Waste Services Ltd CA 19-Mar-2012
The claimants appealed against rejection of their claims for nuisance in the form of smells emanating from the respondent neighbour’s waste processing plant. The defendant relied upon the grant of planning permission.
Held: The cause of action . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice, Costs

Updated: 28 July 2022; Ref: scu.347142

Friends Provident Life and Pensions Limited v Sirius International Insurance Corporation, Guardian Assurance Plc, Royal and Sun Alliance Insurance Plc, The Scottish Lion Insurance Company Limited, Lf Insurance Company Limited: QBD 22 Jul 2004

Judges:

The Hon Mr Justice Moore-Bick

Citations:

[2004] EWHC 1799 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Friends Provident Life and Pensions Ltd v Sirius International Insurance CA 24-May-2005
The appellants provided excess layer professional indemnity insurance cover on a claims made basis. Insurers complained that although the insured had become aware of possible sources of claims, he had not given notice to the insurer, and had thereby . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 28 July 2022; Ref: scu.199489

AIG Europe Ltd v Woodman and Others: SC 22 Mar 2017

The parties disputed the effect of a clause aggregating claims for the purposes of limiting an insurer’s liability under professional negligence insurance.
Held: the claims of each group of investors arise from acts or omissions in a series of related transactions. The transactions fitted together in that they shared the common underlying objective of the execution of a particular development project, and they also fitted together legally through the trusts under which the investors were co-beneficiaries.

Judges:

Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Toulson

Citations:

[2017] UKSC 18, [2018] 1 All ER 936, [2017] 1 WLR 1168, [2017] Lloyd’s Rep IR 209, [2017] PNLR 22, [2017] 1 CLC 668, [2017] WLR(D) 203, [2018] 1 All ER (Comm) 1097, UKSC 2016/0100

Links:

Bailii, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Solicitors Act 1974 37

Jurisdiction:

England and Wales

Citing:

Cited – Swain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .
At ComC – AIG Europe Ltd v OC320301 Llp and Others ComC 14-Aug-2015
The Claimants, AIG Europe Limited, seeks a declaration that certain claims brought by many individuals against a firm of solicitors are to be aggregated and thus considered a single claim for the purposes of a claim brought by the firm of solicitors . .
Cited – AIG Europe Ltd v OC320301 Llp and Others CA 14-Apr-2016
‘This appeal turns on the true construction of an aggregation clause contained in an insurance policy applicable to all solicitors’ indemnity policies pursuant to the requirement in the Solicitors’ Act 1974 for compulsory liability insurance for . .
Cited – Lloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Cited – Scott (for and Behalf of All Underwriting Members of Syndicates 401 and 857 at Lloyd’s) v The Copenhagen Reinsurance Company (UK) Ltd CA 16-May-2003
Where an insurance policy required damage to have been caused by an insured risk, the causative link had to be a significant rather than a weak one.
Determining whether transactions are related is therefore an acutely fact sensitive exercise, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Insurance

Updated: 25 July 2022; Ref: scu.581024

AIG Europe Ltd v OC320301 Llp and Others: ComC 14 Aug 2015

The Claimants, AIG Europe Limited, seeks a declaration that certain claims brought by many individuals against a firm of solicitors are to be aggregated and thus considered a single claim for the purposes of a claim brought by the firm of solicitors against AIG under an insurance policy. In order to determine the claim for a declaration it is necessary to construe the aggregation clause in the policy and apply it to the facts of the present case.
Held: Teare J refused to grant AIG the declaration it sought: ‘the most natural meaning of the phrase ‘a series of related matters or transactions’ in the context of a solicitors’ insurance policy is, in my judgment, a series of matters or transactions that are in some way dependent on each other. It is difficult to talk of transactions being related unless their terms are in some way inter-connected.’

Judges:

Teare J

Citations:

[2015] EWHC 2398 (Comm), [2016] Lloyd’s Rep IR 147

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal From – AIG Europe Ltd v OC320301 Llp and Others CA 14-Apr-2016
‘This appeal turns on the true construction of an aggregation clause contained in an insurance policy applicable to all solicitors’ indemnity policies pursuant to the requirement in the Solicitors’ Act 1974 for compulsory liability insurance for . .
At ComC – AIG Europe Ltd v Woodman and Others SC 22-Mar-2017
The parties disputed the effect of a clause aggregating claims for the purposes of limiting an insurer’s liability under professional negligence insurance.
Held: the claims of each group of investors arise from acts or omissions in a series of . .
Lists of cited by and citing cases may be incomplete.

Insurance, Legal Professions

Updated: 25 July 2022; Ref: scu.551293

Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd: CA 6 Apr 2009

‘In the present case the binder gives Temple certain valuable rights, including a right in Section 27.1 to ‘retain’ commission out of premiums, but they do not include any rights of a security or proprietary nature to which the authority can be regarded as incidental. It is well established that the right to be paid commission does not fall under that head and I do not think that Temple can derive any support from the use of the word ‘retain’ in this case, which simply recognises that the premium is expected to pass through its hands. Temple’s authority to receive payment of commission on behalf of QBE was not, on the true construction of the binder, conferred in order to provide security for the payment of its commission. Under an agreement of this kind the agent is a fiduciary who must act in the interests of his principal, both in relation to the writing of insurance contracts and in administering the business arising out of them.’

Judges:

Rix, Moore-Baick LJJ, Bennett J

Citations:

[2009] EWCA Civ 453, [2009] Lloyd’s Rep IR 544, [2009] 1 CLC 553

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd ComC 23-Apr-2008
. .

Cited by:

Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Agency

Updated: 24 July 2022; Ref: scu.330953

AIG Europe SA v QBE International Insurance Ltd: ComC 3 May 2001

Judges:

Moore-Bick J

Citations:

[2001] EWHC 491 (Comm), [2002] Lloyd’s Rep IR 22, [2001] 2 Lloyd’s Rep 268, [2001] CLC 1259, [2001] 2 All ER (Comm) 622

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – AIG Europe S A v QBE International Insurance Ltd ComC 3-May-2001
A re-insurance contract incorporated terms from the main contract. When asked to construe the incorporation of a clause granting exclusive jurisdiction. In doing so, it was held, that under the Brussels Convention the court had to look to the . .

Cited by:

See Also – AIG Europe S A v QBE International Insurance Ltd ComC 3-May-2001
A re-insurance contract incorporated terms from the main contract. When asked to construe the incorporation of a clause granting exclusive jurisdiction. In doing so, it was held, that under the Brussels Convention the court had to look to the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 24 July 2022; Ref: scu.201701

Lloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd: HL 31 Jul 2003

The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: The absence of a training or monitoring system, even though an independent breach of the rules, was legally irrelevant to the civil liability of the TSB companies. It is wrong to allow doubts about the possibly practical application of the clause to produce a construction which undermines the balance of the clause. Each of the claims did not arise from a ‘single act or omission’. Nor did each of them arise from a ‘related series of acts or omissions’. Each arose from a separate contravention of rule 3.4(4)(a). The preliminary point raised was answered in favour of the insurers

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 48, [2003] Lloyds Rep IR 623, [2003] 4 All ER 43, [2003] 2 All ER (Comm) 665, [2003] Pens LR 315

Links:

Bailii, House of Lords

Jurisdiction:

England and Wales

Citing:

Cited – Cox v Bankside Members Agency Ltd and Others CA 16-May-1995
Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s . .
Cited – AXA Reinsurance (UK) Plc v Field HL 12-Sep-1996
The terms originating ’cause’ and ‘event’ are to be differently construed, one means a continuing situation and the other refers to a discrete event.
Under the ‘LMX Spiral’ Lloyds’ syndicates wrote substantial excess of loss business.The cross . .
Cited – Municipal Mutual Insurance Limited v Sea Insurance Company Limited and Others CA 26-Mar-1998
The unifying event in an aggregation clause in an insurance policy was expressed in very general terms: ‘all occurrences of a series consequent on or attributable to one source or original cause.’
Held: As long as one could find any act, event . .
Cited – Caudle and Others v Sharp; Grove v Sharp CA 1995
A series of 32 asbestosis reinsurance contracts had been underwritten by Mr Outhwaite him without doing any proper assessment of the risk. The insurance had the wording: ‘each and every loss and/or occurrence . . and/or series of losses and/or . .
At First Instance – Lloyds TSB General Insurance Holdings Ltd and others v Lloyds Bank Group Insurance Company Ltd ComC 6-Oct-2000
. .
Appeal from – Lloyds TSB General Insurance Holdings Limited (and Others), Abbey National Plc v Lloyds Bank Group Insurance Company Limited, Lee (and Others) CA 8-Nov-2001
Construction of aggregation clauses in insurance contracts . .

Cited by:

Cited – AIG Europe Ltd v Woodman and Others SC 22-Mar-2017
The parties disputed the effect of a clause aggregating claims for the purposes of limiting an insurer’s liability under professional negligence insurance.
Held: the claims of each group of investors arise from acts or omissions in a series of . .
Lists of cited by and citing cases may be incomplete.

Insurance, Financial Services

Updated: 24 July 2022; Ref: scu.185219

Scott (for and Behalf of All Underwriting Members of Syndicates 401 and 857 at Lloyd’s) v The Copenhagen Reinsurance Company (UK) Ltd: CA 16 May 2003

Where an insurance policy required damage to have been caused by an insured risk, the causative link had to be a significant rather than a weak one.
Determining whether transactions are related is therefore an acutely fact sensitive exercise, it involves ‘an exercise of judgment, not a reformulation of the clause to be construed and applied’.

Judges:

Lord Justice Rix Lord Justice Schiemann Lord Justice Keene

Citations:

[2003] EWCA Civ 688, [2003] Lloyd’s Rep IR 696, [2003] 2 All ER (Comm) 190

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – AIG Europe Ltd v Woodman and Others SC 22-Mar-2017
The parties disputed the effect of a clause aggregating claims for the purposes of limiting an insurer’s liability under professional negligence insurance.
Held: the claims of each group of investors arise from acts or omissions in a series of . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 24 July 2022; Ref: scu.183724

Lloyds TSB General Insurance Holdings Limited (and Others), Abbey National Plc v Lloyds Bank Group Insurance Company Limited, Lee (and Others): CA 8 Nov 2001

Construction of aggregation clauses in insurance contracts

Judges:

Lord Justice Potter, Lady Justice Hale, And, Lord Justice Longmore

Citations:

[2001] EWCA Civ 1643, [2002] Lloyd’s Rep PN 211, [2001] Pens LR 325, [2002] CLC 287, [2002] Lloyd’s Rep IR 113, [2002] 1 All ER (Comm) 42

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Lloyds TSB General Insurance Holdings Ltd and others v Lloyds Bank Group Insurance Company Ltd ComC 6-Oct-2000
. .

Cited by:

Appeal from – Lloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 24 July 2022; Ref: scu.166830

Co Sociedad De Gestion Y Participacion And Others v De Nederlandsche Bank NV: ECJ 25 Jun 2015

ECJ Judgment – Reference for a preliminary ruling – Approximation of laws – Direct insurance other than life assurance – Directive 92/49/EEC – Articles 15, 15a and 15b – Prudential assessment of acquisitions and increases in a qualifying holding – Possibility to attach a restriction or requirement to the approval of a proposed acquisition

Citations:

C-18/14, [2015] EUECJ C-18/14, ECLI:EU:C:2015:419

Links:

Bailii

Statutes:

Directive 92/49/EEC 15

Jurisdiction:

European

Insurance

Updated: 24 July 2022; Ref: scu.549573

Ansari v New India Assurance Ltd: CA 18 Feb 2009

The insured appealed against the refusal of his claim under a commercial policy of his premises which had been damaged in a fire.

Judges:

Waller LJ, Thomas LJ, Moore-Bick LJ

Citations:

[2009] EWCA Civ 93

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – The Seashell of Lisson Grove Ltd and Others v Aviva Insurance Ltd and Others ComC 1-Nov-2011
The claimant’s fish restaurant had burned down. The court was asked to make a preliminary determination of issues on construction on insurance policy. The insured sought to evade what the insurer said were breaches of warranty, misrepresentations . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 23 July 2022; Ref: scu.293906

Seele Austria Gmbh Co v Tokio Marine Europe Insurance Ltd: TCC 17 Feb 2009

There will rarely be a finding of abuse of process without the court deeming the subsequent claim to amount to unjust harassment or oppression.

Judges:

Coulson J

Citations:

[2009] EWHC 255 (TCC), [2009] BLR 261

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Campbell v Leeds United Association Football Misc 3-Apr-2009
The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insurance, Construction, Estoppel

Updated: 23 July 2022; Ref: scu.291788

Wallis, Son, and Wells v Pratt and Haynes: HL 5 May 1911

Exclusion Clause Limited

The appellants bought seed from the respondents as ‘common English sainfoin’ under the proviso that ‘sellers give no warranty, expressed or implied, as to growth, description, or any other matters.’ The seed turned out to be a different kind, and the appellants, who had re-sold the seed to third parties as common English sainfoin, were obliged to pay damages. They sought to recover the amount from the respondents.
Held: The respondents’ failure to supply common English sainfoin amounted to a breach of condition, which, notwithstanding the terms of the contract, entitled the appellants to recover the amount of their loss from the respondents.

Judges:

Lord Chancellor (Loreburn), Lords Ashbourne, Alverstone, and Shaw

Citations:

[1911] AC 394, [1911] UKHL 620, 49 SLR 620

Links:

Bailii

Statutes:

Sale of Goods Act 1893

Jurisdiction:

England and Wales

Citing:

At CA (Approved) – Wallis v Pratt CA 1910
Fletcher Moulton L.J considered that the first sense of the term ‘condition’ is ‘There are some [obligations] which go so directly to the substance of the contract or, in other words, are so essential to its very nature that their non-performance . .
Cited – Ellen v Topp 15-Apr-1851
A boy was placed as apprentice with the plaintiff then an auctioneer, appraiser and corn-factor. The plaintiff abandoned the trade of corn-factor, and the boy left. The plaintiff claimed against his father.
Held: The action for the . .

Cited by:

Mentioned – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance

Updated: 23 July 2022; Ref: scu.251073

AC Ward and Son v Catlin (Five) Ltd and Others: CA 10 Sep 2009

The defendant insurers appealed against refusal of summary judgment in its favour in defending a claim under a policy. The claimants premises had been burgled. The insurer said that the claimant had failed to respect warranties given by it as to security. The insurers had said they were conditions, breach of which suspended the cover. They judge had rejected that argument.
Held: The appeal failed. To be treated as warranties, the provisions had to be clear, and the claimants ad a proper argument that the provisions were not clear: ‘The Claimant has a real prospect of successfully contending that its interpretation gives the Policy a more reasonable commercial meaning and one more likely to be that intended by the parties, by limiting the ‘protections provided for the safety of the insured property’ to those in the Original Proposal, and any burglar alarm system within the BAMW to a burglar alarm stated in the Schedule and which was approved by the Defendants, and by limiting the Warranties, as the Judge was inclined to do, to defects within the knowledge or reasonably capable of being within the knowledge of the Claimant and its agents.’

Judges:

Wilson, Etherton, Sullivan LJJ

Citations:

[2009] EWCA Civ 1098, [2010] Lloyds Rep IR 301

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Approved – Easyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .

Cited by:

Cited – Bhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
See Also – AC Ward and Son Ltd v Catlin (Five) Ltd and Others ComC 3-Dec-2009
. .
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 22 July 2022; Ref: scu.377305

Schwabe, Administratrix, and Co v Clift: 18 Aug 1845

Where a policy of insurance on life contained a condition, that the policy should be void if the assured should ‘commit suicide’; and it was proved that the assured had died from the effects of Polson taken by himself
Held: In order to avoid the policy, it must be shewn that the assured, at the time he formatted that act, he could distinguish between right and wrong, so as to be able to understand and appreciate the nature and quality of the act he was doing.

Citations:

[1845] EngR 1188, (1845) 2 Car and K 134, (1845) 175 ER 56

Links:

Commonlii

Jurisdiction:

England and Wales

Insurance

Updated: 22 July 2022; Ref: scu.304330

X v United Kingdom: ECHR 19 Jan 1998

The complainant said that the system under which he had been declared unfit to be involved in the management of an insurance company was unfair.

Citations:

28530/95, [1998] ECHR 117, (1998) 25 EHRR CD88, 25 EHRR CD88

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Company, Insurance

Updated: 22 July 2022; Ref: scu.280485

Korea National Insurance Company v Allianz Global Corporate and Specialty Ag: ComC 18 Nov 2008

The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system under which the judgment was obtained was not independent of the the state against whom the fraud was alleged and was therefore unenforcable.
Held: ‘The investigation into and adjudication on the Reinsurers’ allegations that the N Korean State, under the guiding mind, inter alios, of the Dear Leader, fraudulently procured the N K judgement and that this was of a piece with and is to be inferred from many other criminal acts committed by the N Korean State has an obvious potential for embarrassing the foreign relations between Her Majesty’s Government and the Government of N Korea.’ and ‘the doctrines of act of state and non-justiciability are not subject to agreement by the parties. If the parties do not take the point, the court should take it of its own motion.’ Those parts of the Reinsurers’ fraud defence that allege that the State of N Korea procured the N K judgement by fraud and that: (i) it is to be inferred that KNIC knew of the fraud because it is part of the State of N Korea and that state, through a directing mind or minds, directed or approved of the Underlying Fraud; and (b) the Underlying Fraud is to be inferred from other acts of state criminality committed by the State of N Korea, are non-justiciable and should be struck out.

Judges:

Filed J

Citations:

[2008] EWHC 2829 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Oetjen v Central Leather Co 1918
(US Supreme Court) Animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser . .
Cited – Princess Paley Olga v Wiesz CA 1929
The Court considered a seizure of property from the plaintiff which had then been adopted by the Russian Government and a later confiscation decree.
Held: The decree was effective to vest the goods in the Russian authorities and the adopted . .
Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
Cited – First National City Bank v Banco Nacional de Cuba 7-Jun-1972
(United States Supreme Court) The court worried about just how much confusion can result from executive encroachment on issues of justiciability and that executive interference would lead to arbitrary results as ‘the Court becomes a mere errand boy . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-Nov-2000
If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in . .
Cited – Jayaretnam v Mahood and Others 21-May-1992
The court set aside an order which had granted leave to serve libel proceedings outside the jurisdiction on the ground that the court was precluded by principles of judicial restraint from embarking on an enquiry into the plaintiff’s grounds for . .
Cited – Skrine and Co (a Firm) and others v Euromoney Publications plc and others QBD 10-Nov-2000
The court was asked to strike out parts of a defemation pleading alleging that (i) the Malaysian Prime Minister had acted in a manner intended and/or calculated to interfere with the independent judiciary; (ii) Malaysian judges applied the law of . .

Cited by:

Appeal from – Korea National Insurance Corp (KNIC) v Allianz Global Corporate and Speciality Ag CA 2-Dec-2008
The insurance company appealed against refusal of the court to decline to enforce a judgment entered against it by the courts of North Korea. It had argued that the insurance policy had been obtained by fraud of the NK government, and that the court . .
Lists of cited by and citing cases may be incomplete.

Insurance, International

Updated: 21 July 2022; Ref: scu.278855

GE Frankona Reinsurance Ltd v CMM Trust No.1400 (the ‘Newfoundland Explorer’): AdCt 22 Mar 2006

The owner sought to claim under his insurance policy. The yacht was, in the policy warranted to be fully crewed at all times. The owner had left the boat to return a few hours later when it was found on fire.
Held: The insurance claim failed. The phrase implied that at least one crew member would be on board at all times: ‘As a matter of natural and ordinary language, for the vessel to be ‘fully crewed at all times’ while laid up alongside a berth, there must be at least one crew member on board her 24 hour’, though ‘The warranty obliged the defendant to keep at least one crew member on board the vessel 24 hours a day, subject to (i) emergencies rendering his departure necessary or (ii) necessary temporary departures for the purpose of performing his crewing duties or other related activities.’

Judges:

Gross J

Citations:

Times 02-May-2006, [2006] EWHC 429 (Admiralty), [2006] 1 Lloyd’s Rep IR 704

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Simmonds v Cockell 1920
The insurance policy warranted that the premises would be always occupied. The premises were damaged while the insured and his wife were absent for a few hours.
Held: The warranty did not require a permanent continuous presence, and the . .
Cited – Dodson v Peter H Dodson Insurance Services (A Firm) CA 24-Jan-2001
The driver was insured under a policy in his own name which referred to a particular vehicle, but which also provided him with third party cover when driving another motor vehicle with the owner’s consent. He disposed of his own car, but asked . .
Cited – Brownsville Holdings Ltd v Adamjee Insurance Co Ltd (‘The Milasan’) 2000
A 90 foot motor yacht sank in calm weather in the course of a voyage from Piraeus to Sardinia with a crew of three: a skipper, an engineer and a deckhand.
Held: The owner’s insurance claim failed. There had been a breach of warranty in these . .
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 by:

Cited – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 21 July 2022; Ref: scu.240176

Berger and Light Diffusers Pty v Pollock: 1974

Citations:

[1974] CLY 3612

Jurisdiction:

England and Wales

Cited by:

Applied – 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 . .
Lists of cited by and citing cases may be incomplete.

Insurance, Commonwealth

Updated: 21 July 2022; Ref: scu.194950

Container Transport International Inc v Oceanus Mutual Underwriting Association (Bermuda): CA 1984

The plaintiffs operated a scheme relying upon insurance. The insurers refused to renew, and they then approached and obtained insurance from the defendants, but it was alleged without disclosing the full history.
Held: The plaintiffs had made representations which were both material and untrue within s20. The circumstances would have been taken account of by a prudent insurer, and the defendant was free to avoid liability. The defendant could not be said to have waived disclosure, and nor was it under constructive notice.

Citations:

[1984] 1 Lloyd’s Rep 476

Statutes:

Marine Insurance Act 1906 18(1) 20

Jurisdiction:

England and Wales

Cited by:

Applied – 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 . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 21 July 2022; Ref: scu.194951

Aneco Reinsurance Underwriting Limited (In Liquidation) v Johnson and Higgins Limited: CA 30 Jul 1999

Judges:

Evans LJ, Aldous LJ, Ward LJ

Citations:

[1999] EWCA Civ 2035

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Aneco Reinsurance Underwriting Ltd (In Liquidation) v Johnson and Higgins CA 14-Nov-1997
Claims against insurance brokers for negligence are to be heard at the same time as a claim with regard to repudiation of liability; need for notes of arrangements. . .

Cited by:

Appeal from – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Lists of cited by and citing cases may be incomplete.

Insurance, Damages

Updated: 21 July 2022; Ref: scu.146950

Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited: HL 18 Oct 2001

Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining satisfactory excess of loss protection.
Held: The appeal failed. The case of SAAMCo did not affect the existing rule. The brokers had a duty to inform the insured of any limitation on the cover obtained. They were liable for failing to advise the company of the unavailability of the re-insurance on the market, and were therefore reliable for the entire loss accepted. It was an ‘advice’ case. This had the ironic consequence that although the claimant had apparently been content to assume an exposure of $35m on the reinsurance with protection by way of retrocession for only $11m, they recovered the whole $35m as damages, two thirds of which they would have suffered even if the retrocession had been effective. The broker’s responsibility was found to extend beyond the placing of the retrocession to the entire transaction including the writing of the reinsurance itself. In particular, his duty was found to include reporting to the reinsurer the market’s highly adverse assessment of the reinsured risk.

Judges:

Lord Slynn of Hadley Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Steyn Lord Millett

Citations:

[2001] UKHL 51, [2002] 1 Lloyd’s Rep 157, [2002] CLC 181, [2002] Lloyds Rep IR 91, [2002] 1 LLR 157, [2002] PNLR 8, 2001] 2 All ER (Comm) 929, [2002] Lloyd’s Rep IR 91

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Youell v Bland Welch and Co Ltd (‘The Superhulls Cover-Case) (No 2) QBD 1990
In estoppel it is necessary for there to have been an unequivocal representation of fact by words or conduct: ‘A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly – this of course he can . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
See Also – Aneco Reinsurance Underwriting Ltd (In Liquidation) v Johnson and Higgins CA 14-Nov-1997
Claims against insurance brokers for negligence are to be heard at the same time as a claim with regard to repudiation of liability; need for notes of arrangements. . .
Appeal from – Aneco Reinsurance Underwriting Limited (In Liquidation) v Johnson and Higgins Limited CA 30-Jul-1999
. .

Cited by:

Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Limited to the particular facts – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence, Damages

Updated: 21 July 2022; Ref: scu.166629

Aneco Reinsurance Underwriting Ltd (In Liquidation) v Johnson and Higgins: CA 14 Nov 1997

Claims against insurance brokers for negligence are to be heard at the same time as a claim with regard to repudiation of liability; need for notes of arrangements.

Citations:

Times 14-Nov-1997

Jurisdiction:

England and Wales

Cited by:

See Also – Aneco Reinsurance Underwriting Limited (In Liquidation) v Johnson and Higgins Limited CA 30-Jul-1999
. .
See Also – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence

Updated: 21 July 2022; Ref: scu.77797

Absalom v TCRU Ltd: CA 19 Dec 2005

Longmore LJ discussed the construction of a contract: ‘(i) the aim of the exercise is to ascertain the meaning of the relevant contractual language in the context of the document and against the background to the document. The object of the enquiry is not necessarily to probe the ‘real’ intention of the parties, but to ascertain what the language they used in the document would signify to a properly informed observer; and . .
(iv) a commercial document must be interpreted so as to make business common sense within its context. But if a detailed semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense. Longmore LJ then referred to the comments of Lord Diplock in Antaios which I have quoted above.’

Judges:

May LJ, Longmore LJ, Jacob LJ

Citations:

[2005] EWCA Civ 1586, [2006] 2 Lloyd’s Rep 129, [2006] 1 All ER (Comm) 375, [2006] 1 CLC 648

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Absalom v TCRU Ltd ComC 2005
. .

Cited by:

Cited – Reilly v National Insurance and Guarantee Corporation Ltd CA 19-Dec-2008
The claimant sold fire extinguishers. Three failed, resulting in damage to the purchaser’s properties. His insurers refused to pay an indemnity saying that the failure was the failure of a piece of machinery (the switchgear) and was not covered by . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 21 July 2022; Ref: scu.279046

HLB Kidsons (A Firm) v Lloyd’s Underwriters Subscribing to Lloyd’s Policy No 621/ Pk1D00101 and others: CA 31 Oct 2008

In construing the terms of insurance policies written in the Lloyd’s market, counsel submitted that the court should have regard to the post-contract conduct of persons acting for the parties, on the basis that the conduct of those persons was relevant because: ‘the reaction of professional people in the industry at the time was relevant to the objective question of construction of the documents in issue albeit that was ultimately for the judge to decide’
Held: The Court recited but did not clearly endorse the submission. The post-contract conduct in question was conduct of professionals in a particular, well-defined market operating on the basis of special terms and understandings. The submission was that conduct of particular individuals who were experienced participants in that market could be taken to be an indication of the objective meaning which the market would itself attribute to the language used in that particular market context.

Judges:

Rix LJ, Toulson LJ, Sir Richard Buxton

Citations:

[2008] EWCA Civ 1206, [2009] Lloyds Reports IR 6, [2009] Lloyds Rep IR 178, [2009] 1 Lloyds Rep 8, [2008] 2 CLC 617, [2008] Lloyds Rep IR 22

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – HLB Kidsons (A Firm) v Lloyds Underwriters Subscribing To Lloyds Policy No 621/Pkid00101 and others ComC 9-Aug-2007
. .
See Also – HLB Kidsons (A Firm) v Lloyds Underwriters (Policy No 621/Pkid00101) and others Comc 22-Nov-2007
. .
Appeal From – HLB Kidsons (Formerly Kidsons Impey) v Lloyd’s Underwriters Subscribing Policy No 621/PK1D00101 and others ComC 14-Oct-2008
. .

Cited by:

Cited – Sattar v Sattar and Another ChD 20-Feb-2009
The parties disputed the effect of a Tomlin order settling litigation between them. Under the order, if certain sums were not paid, the company was to be sold.
Held: Later behaviour could not be used to help interpret an agreement, and in this . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales CA 14-Jul-2010
Q had provided professional indemnity insurance to a firm of solicitors in which the Law Society had intervened. Claims were made against the firm, but Q declined to pay, saying that the apparently fraudulent activities of the firm fell outside the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 19 July 2022; Ref: scu.277533

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 of the English court which could be realised in a winding-up for the benefit of creditors; and that, in turn, depended on whether the company had any realistic prospect of success in a claim against its insurers (a PandI Club). The rules of that Club included a ‘pay to be paid’ condition. The petitioners had obtained judgments against the company in respect of loss of cargo. Liability under those judgments was a risk covered by the company’s membership of the Club. on the making of a winding-up order, the company’s rights against the Club in respect of its indebtedness to the petitioners would be transferred to the petitioners under the provisions of section 1(1) of the 1930 Act.
Held: The Club faced a dilemma. Either the insolvency did, ex hypothesi, render impossible compliance with the ‘pay to be paid’ condition; or it did not. If the latter, then it the claim was not valueless; if the former, then the ‘pay to be paid’ condition would have the substantial effect of altering the rights of the parties under the contract upon the insolvency of the company, and so had to be struck down by section 1(3) of the 1930 Act: ‘The use of the phrase ‘directly or indirectly’ in s.1(3) shows that provision in a relevant contract can fall foul of s.1(3), even though it does not expressly and in terms purport to avoid the contract or alter the rights of the parties upon the happening to the insured of any of the relevant events. The effect of the word ‘indirectly’ is in my judgment that any provision in such a contract which has the substantial effect of avoiding a contract or altering the rights of the parties upon the happening to the insured of any such events is invalidated, even though the contract does not in terms so provide.’ and ‘The manifest purpose of s.1(3) is to make certain that, in any of the events specified in s.1(1), the third party shall be able to take the full benefit of the rights against the insurer, unaltered and undiminished by any provision in the contract which is designed directly or indirectly to cancel, prejudice or reduce such rights in the event of one or more of such events taking place.’

Judges:

Slade J

Citations:

[1979] 1 Lloyd’s Rep 190

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

Dicta Adopted – 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 . .
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 . .
Approved – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL 14-Jun-1990
The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
Lists of cited by and citing cases may be incomplete.

Insurance, Insolvency

Updated: 19 July 2022; Ref: scu.223312

Nunez Torreiro (Approximation of Laws Approximation of Laws): ECJ 20 Dec 2017

Reference for a preliminary ruling – Compulsory insurance against civil liability in respect of the use of motor vehicles – Directive 2009/103/EC – Article 3, first paragraph – Concept of ‘use of vehicles’ – National legislation excluding the driving of motor vehicles on roads and terrain that are not ‘suitable for use by motor vehicles’, with the exception of those which, though not suitable, are nonetheless ‘ordinarily so used’

Citations:

C-334/16, [2017] EUECJ C-334/16, ECLI:EU:C:2017:1007

Links:

Bailii

Jurisdiction:

European

Road Traffic, Insurance

Updated: 19 July 2022; Ref: scu.602101

Adams and Another v Scottish and Southern Energy Plc and Another: TCC 22 Jul 2008

The claimant sought damages from an electrical engineers after their house burned down. They said that wiring supplying electric to the house was faulty and had caused the fire. Five boisterous bullocks had bumped into a pole supporting the wire, and the fire broke out. The arrangements to support the cable had been reduced by the contractors.
Held: The claim failed. The evidence was that the defendant was not responsible for the loss, but that the fixings within the house had been shortened by others which had left less play when the bracket was dislodged.

Judges:

David Wilcox J

Citations:

[2008] EWHC 1926 (TCC)

Links:

Bailii

Statutes:

Electrical Equipment Safety Regulations 1994 5, Consumer Protection Act 1987

Jurisdiction:

England and Wales

Insurance

Updated: 19 July 2022; Ref: scu.272795

In Re Insolvency Act 1986; Cork v Rawlins: ChD 27 Jun 2000

The proceeds of a permanent disability benefit insurance policy were not calculated according to the pain and suffering of the bankrupt, and were therefore distributable amongst his creditors. There was no part of it held on constructive trust for the bankrupt by the insurance company. The sums were distributable even though a decision as to the claim was made only after the discharge.

Citations:

Gazette 06-Jul-2000, Times 27-Jun-2000

Jurisdiction:

England and Wales

Insurance, Insolvency

Updated: 19 July 2022; Ref: scu.81946

American Airlines Inc v Hope: HL 1974

A claim was made for the rectification of an aviation insurance contract.
Lord Diplock said: ‘Rectification is a remedy which is available where parties to a contract, intending to reproduce in a more formal document the terms of an agreement upon which they are already ad idem, use in that document words which are inapt to record the true agreement reached between them. The formal document may then be rectified so as to conform with the true agreement which it was intended to reproduce, and enforced in its rectified form.’
and ‘That either or both [parties] were mistaken in their reasons for agreeing to this wording is no ground for rectification. Rectification is concerned with what the parties to a contract did agree and not with why they did so.’
Lord Diplock set out the basis of an insurance slip: ‘The slip contemplates its eventual replacement by a policy of insurance in the standard form in use at Lloyd’s for aviation risks, but subject to such deletions and additions as are indicated in the slip. Such additions are generally clauses which themselves follow a standard form and are sufficiently identified in the slip by a reference to a description or a number but some may be specially tailored to the particular requirements of the assured. In the latter case if the slip is for an original insurance the actual clause is set out in the slip itself, although it may be in only abbreviated form . . Almost invariably the slip provides that the wording of the policy is to be agreed by leading underwriter. Where this is the case the leading underwriter may occasionally consent to some clause going into the policy which was not provided for by the slip, if in his judgment it would not affect the premium. So there is the possibility of minor variations being made in the contract of insurance when the terms of the policy are agreed.’

Judges:

Lord Diplock

Citations:

[1974] 2 Lloyds Rep 301

Jurisdiction:

England and Wales

Cited by:

Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 18 July 2022; Ref: scu.640346

Underwriting Members of Lloyd’s Syndicate 980 and others v Sinco Sa: ComC 29 Jul 2008

The claimants, insurers, relied upon an exclusive jurisdiction clause contained in a binder given to a Greek broker. It set England and Wales for any dispute. The insurers had terminated the binder alleging fraudulent conduct by the broker. A declaration and damages were sought, but proceedings had not served when the broker sued the insurers in Greece for ‘clientele compensation’ pursuant to statute and ‘financial and moral damages’. The insurers then amended their English claim to claim damages for breach of the exclusive jurisdiction clause and served the claim (as so amended) on the broker in Greece; the broker then sought a stay of the English proceedings.
Held: A stay was refused. The Greek claims were based on tort and statute while the English claims were for breach of the contract in the binder.

Judges:

Beatson J

Citations:

[2008] EWHC 1842 (Comm), [2009] Lloyd’s Rep IR 365

Links:

Bailii

Statutes:

Council Regulation (EC) 44/2001

Cited by:

Cited – In re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction, European

Updated: 18 July 2022; Ref: scu.271239

In Re Friends’ Provident Life Office: ChD 4 Jan 1999

When a policy of re-insurance is returned to the re-insurer, the policy is thereby determined, and can no longer be long term insurance business and the policies having been finished were not transferred and the court was unable to approve a transfer.

Citations:

Times 04-Jan-1999, Gazette 27-Jan-1999

Jurisdiction:

England and Wales

Cited by:

Appeal from – In the Matter of Friends Provident Life Office and Friends Provident Linked Life Assurance Limited CA 16-Jul-1999
Where a re-insurer transferred his entire re-insurance business as one whole, that transfer remained a transfer of long term business requiring the sanction of the court to the scheme. The policies were discharged by operation of law, not by the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 18 July 2022; Ref: scu.81894

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 been in insolvent liquidation, but the proposal from did not raise the issue. Was the non-disclosure material?
Held: ‘The test of materiality is by reference to what would influence the judgment of a prudent insurer. This is an objective test, and the characteristics to be imputed to a prudent insurer are in substance a matter for the courts to decide. There is room for a test of proportionality, having regard to the nature of the risk and the moral hazard under consideration. There may be things which are too old, or insufficiently serious to require disclosure, whether or not there is exculpatory material. And in cases where the information would be material and disclosable if there were no exculpatory material, the degree of conviction that the exculpatory material must carry, must depend on all the circumstances known to the insured. ‘

Judges:

Tugendhat J

Citations:

[2006] EWHC 2811 (QB)

Links:

Bailii

Statutes:

Marine Insurance Act 1906 18

Jurisdiction:

England and Wales

Citing:

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 – Brotherton and Another v Aseguradora Colseguros S A and Another CA 22-May-2003
Allegations against the insured were extant at the date of the proposal. The insurers sought to avoid the claim. . .
Cited – Inversiones Manria SA v Sphere Drake Insurance Co. plc (The Dora) 1989
The court considered the relevance of moral hazard for an insurer accepting an insurance proposal: ‘When accepting a risk underwriters are properly influenced not merely by facts which, with hindsight, can be shown to have actually affected the risk . .
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 – North Star Shipping Ltd and others v Sphere Drake Insurance Plc and others CA 7-Apr-2006
A claim was made under a marine insurance policy for damage caused to a vessel by an explosion. Underwriters alleged that they were entitled to avoid the policies for (inter alia) non-disclosure of the existence of criminal proceedings in Greece . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 15 July 2022; Ref: scu.245962

If P and C Insurance Limited (Publ.) v Silversea Cruises Limited, Silver Cloud Shipping Company Sa, Silver Wind Shipping Company Sa, Silversea New Build One Limited, Silversea New Build Two Limited&Quot;the Silver Cloud&Quot;: CA 5 Jul 2004

The shipping company was insured against loss of business following Acts of war. It sought to claim after the attack on America in September 2001.
Held: The policy had a limitation which applied ‘in the annual aggregate and in all’ which therefore prevented separate sums in respect of each ship exceeding this sum in total. The single day of terrorist attacks in New York and Washington were unlikely to be called an act of war or armed conflict by men of business. The phrase ‘armed conflict’ implied continuity, but this was not essential for the present case.

Judges:

Lord Justice Mummery Lord Justice Rix Lord Justice Ward

Citations:

[2004] EWCA Civ 769, Times 13-Aug-2004, [2004] Lloyd’s Rep IR 696

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – If P and C Insurance Ltd v Silversea Cruises Ltd and others ComC 19-Mar-2003
. .
Cited – Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Company Limited CA 1939
The case was heard against the background of an armed conflict between Japan and China. The charterparty contract included a clause providing for cancellation ‘if war breaks out involving Japan’.
Held: The court rejected an argument that the . .
Cited – Spinneys (1948) Ltd v Royal Insurance Co Ltd 1980
The court considered the meaning of ‘war’ in the context of an insurance contract: ‘The issue is not whether the events in Lebanon were recognised in the United Kingdom as amounting to a civil war in the sense in which the term is used in Public . .

Cited by:

Appealed to – If P and C Insurance Ltd v Silversea Cruises Ltd and others ComC 19-Mar-2003
. .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 15 July 2022; Ref: scu.198574

Spinneys (1948) Ltd v Royal Insurance Co Ltd: 1980

The court considered the meaning of ‘war’ in the context of an insurance contract: ‘The issue is not whether the events in Lebanon were recognised in the United Kingdom as amounting to a civil war in the sense in which the term is used in Public International Law with the corollary that this country would, if the occasion had arisen, have accorded to the participants the rights and demanded of them the duties appropriate to belligerents. The question here is whether there was a civil war within the meaning of the policy.’ and ‘Methods of pursuing political aims and of waging an armed struggle do not stand still. A situation existing today might fall outside a definition formulated in the past, not because the Judge or scholar who proposed it considered that the situation should be excluded but simply because the possibility that it might exist had not crossed his mind . . The same comment applies to a collection of materials relating to Public International Law . . The words under construction are to be given their ordinary business meaning, which is not necessarily the same as the one which they bear in Public International Law. The statements of jurists are a useful source of insights, but they do not provide a direct solution…’ Three questions were generally involved: (1) Can it be said that the conflict was between opposing ‘sides’? (2) What were the objectives of the ‘sides’ and how did they set about achieving them? (3) What was the scale of the conflict, and of its effect on public order and on the life of the inhabitants?

Judges:

Mustill J

Citations:

[1980] 1 Lloyd’s Rep 406

Jurisdiction:

England and Wales

Citing:

Cited – Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Company Limited CA 1939
The case was heard against the background of an armed conflict between Japan and China. The charterparty contract included a clause providing for cancellation ‘if war breaks out involving Japan’.
Held: The court rejected an argument that the . .

Cited by:

Cited – If P and C Insurance Limited (Publ.) v Silversea Cruises Limited, Silver Cloud Shipping Company Sa, Silver Wind Shipping Company Sa, Silversea New Build One Limited, Silversea New Build Two Limited&Quot;the Silver Cloud&Quot; CA 5-Jul-2004
The shipping company was insured against loss of business following Acts of war. It sought to claim after the attack on America in September 2001.
Held: The policy had a limitation which applied ‘in the annual aggregate and in all’ which . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 15 July 2022; Ref: scu.200216

Kiriacoulis Lines Sa v Compagnie D’Assurances Maritime Aeriennes Et Terrestres (Camat) and Another (“The Demetra K”): CA 16 Jul 2002

The court set out the elements to be satisfied before ordering a rectification of a commercial contract, in particular, the need for an antecedent agreement with outward expression of a common intent, and convincing evidence sufficient to discharge the burden of proving a common mistake in translating the previous agreement into contractual form.
Held: Those negotiating the contract each assumed that their agreement on a certain matter would have a certain effect, but they had never discussed and agreed upon that effect. There was not enough for rectification: ‘Mr Lee and Mr Mitchell plainly agreed that the Oct. 3 addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr. Mitchell assumed that it would relieve the insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr. Lee had a similar belief. If they both shared that belief this would not establish a claim for rectification of the policy.’ and ‘Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover.’
Insurer’s appeal from order for payment under claim on ship policy – fire caused by third party.

Judges:

Lord Phillips of Worth Matravers MR

Citations:

[2002] EWCA Civ 1070, [2002] 2 Lloyd’s Rep 581, [2002] 2 Lloyd’s Rep 581, [2002] 2 LLR 581

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Wayne Tank and Pump Company Ltd v Employers Liability Assurance Corporation Ltd CA 1973
The court discussed the effect of an exception clause in an insurance policy: ‘The effect of an exception is to save the insurer from liability for a loss which but for the exception would be covered. The effect of the cover is not to impose on the . .

Cited by:

Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 15 July 2022; Ref: scu.175191

Seele Austria Gmbh and Co Kg v Tokio Marine Europe Insurance Ltd: CA 7 May 2008

The court was asked whether under a policy covering the liability of third parties in a construction project, that policy covered also the costs of gaining access to parts of the building to replace defective parts.

Judges:

Waller LJ, Moore-Bick LJ, Richards LJ

Citations:

[2008] EWCA Civ 441

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 14 July 2022; Ref: scu.267553

Tesco Stores Ltd v Constable and others: CA 16 Apr 2008

Tesco voluntarily agreed to indemnify a third party for economic loss. When that third party claimed under the indemnity for economic losses arising out of damage to property of another, Tesco sought to claim under its own public liability insurance covering ‘all sums for which the Insured shall be liable at law for damages in respect of . . loss of damage to material property.’
Held: Tesco’s appeal failed.
Tuckey LJ said: ‘A public liability policy provides cover against liability to the public at large. By contrast private liability arises from contracts entered into between individuals. Public liability in this sense arises in tort; it does not and cannot arise only in contract. As a general rule a claim in tort cannot be founded upon pure economic loss. So the judge was right to say that the fact that this was public liability insurance was important and that such policies do not generally cover liability in contract for pure economic loss. It is a strong pointer to the meaning of the words used. ‘

Judges:

Tuckey, Thomas and Hughes LJJ

Citations:

[2008] EWCA Civ 362

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Tesco Stores Ltd. v Constable and others Comc 14-Sep-2007
The defendants provided insurance for the claimant to construct a train tunnel over which the claimant would build a supermarket. The tunnel collapsed, and the railway operator claimed for loss of revenues. The insurers denied responsibility saying . .

Cited by:

Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Lists of cited by and citing cases may be incomplete.

Construction, Insurance

Updated: 14 July 2022; Ref: scu.267169

Risk Management Partners Ltd, Regina (on the Application of) v The Council of London Borough of Brent: Admn 22 Apr 2008

Several local authorities had come together to establish a mutual insurance company. The defendants issued a tender for insurance, and the claimants complained that though their tender had been most advantageous, the defendant had abandoned the tender toaward the contract to the mutual company.
Held: Brent had no power under either section 111 of the Local Government Act 1972 or section 2 of the Local Government Act 2000 to participate in establishing LAML or become a participating member of that company, or to make payment of the capitalisation amount or to grant a guarantee to the company.

Judges:

Stanley Burnton LJ

Citations:

[2008] EWHC 692 (Admin), [2008] LGR 331

Links:

Bailii

Statutes:

Public Contracts Regulations 2006, Local Government Act 1972, Local Government Act 2000 2

Jurisdiction:

England and Wales

Cited by:

See Also – Risk Management Partners Ltd v The London Borough of Brent Admn 16-May-2008
Claim for damages – alleged breach of regulations by local council.
Held: Brent had acted in breach of the 2006 Regulations when it abandoned the tender process and awarded the insurance contracts to LAML. Issues of causation and damages were . .
See Also – Brent London Borough Council v Risk Management Partners Ltd CA 9-Jun-2009
Brent appealed from a finding that it had failed when redirecting a contract for insurance and had no power to become a member or participating member of London Authorities Mutual Limited or to make payments or to enter into commitments to make . .
At First Instance – Brent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Local Government

Updated: 14 July 2022; Ref: scu.267035

Brit Syndicates Ltd and others v Italaudit Spa and others: HL 12 Mar 2008

The parties disputed the extent of cover under an insurance policy. The insured firm of accountants had failed to verify the existence of a substantial balance claimed by the company it audited. The policy ‘included as an Assured Firm but solely in respect of claims made against Grant Thornton International arising from claims made against a member firm of Grant Thornton International insured by the terms and conditions of this policy’. The question was whether GTI Italy was insured.
Held: The insured’s appeal succeeded. The clause ‘gives to GTI as an Assured Firm the protection of the second insuring clause, without any need to show that the claim against GT Italy is itself one which is insured under either of the two insuring clauses. This means that the phrase ‘insured by the terms and conditions of this policy’ do not relate to the earlier words ‘claims made’, but rather to the words ‘a member firm of Grant Thornton International’.

Judges:

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury

Citations:

[2008] UKHL 18

Links:

Bailii

Citing:

At first Instance – Brit Syndicates Ltd and others v Italaudit Spa and Another ComC 3-Mar-2006
The claimant insurers sought a declaration that they had successfully avoided an insurance policy.
Held: The court granted summary dismissal of the claim against the defendants. . .
Appeal from – Brit Syndicates Ltd (Brit Syndicate 2987 at Lloyd’s) and others v Grant Thornton International and Another CA 6-Dec-2006
. .
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 – Thomson v Weems HL 1884
Where a basis of the contract clause makes the correctness or completeness of the insured’s disclosure into a warranty, a breach of that warranty has the effect that the insurance cover never attaches under the contract.
Lord Blackburn said: . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 14 July 2022; Ref: scu.266164

Zurich Professional Ltd v Karim and Others: QBD 15 Dec 2006

Contract for professional indemnity insurance for a firm of solicitors: ‘The Claimant insurers seek declarations that the claims which have arisen under that policy ‘arise from dishonesty or fraudulent acts or omissions committed or condoned by the insured’ so as to mean that they are not obliged to indemnify the insured in respect of the claims.’

Judges:

Mr Justice Irwin

Citations:

[2006] EWHC 3355 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 13 July 2022; Ref: scu.408695

Kosmar Villa Holidays Plc v Trustees of Syndicate 1243: CA 29 Feb 2008

The court considered the difference between waiver by election and waiver by estoppel. Rix LJ said: ‘election is the exercise of a right to choose between inconsistent remedies’ and ‘generally requires knowledge of all the facts giving rise to the choice on the part of the party electing’.

Judges:

Rix LJ, Jacob LJ, Forbes LJ

Citations:

[2008] EWCA Civ 147

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kosmar Villa Holidays Plc v the Trustees of Syndicate 1243 ComC 4-Apr-2007
The tour company had lost an action for personal injury by a young man injured on holiday with them in Greece, and now sought an indemnity from its insurers. . .

Cited by:

Cited – Walbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 13 July 2022; Ref: scu.266014

Zeller v British Caymanian Insurance Company Ltd: PC 16 Jan 2008

(Cayman Islands) The Board considered the effect of a misdeclaration on a proposal for medical insurance.
Lord Bingham considered a statement which was said to be ‘complete and correct to the best of my knowledge and belief’. Lord Bingham stated: ‘It is unnecessary to rehearse these authorities in detail, since it is clear in the Board’s opinion that the basis of this contract, as it affected Mr Zeller, was that the statements made by Mr Zeller in the application form were true to the best of his knowledge and belief. This was expressly stated three times in the form, and the incompleteness of the statement at the very end of the form seems likely, having regard also to the absence of punctuation, to be attributable to a typographical error. It was not stated in the form, as is often done, that the applicant’s warranty that his answers were true to the best of his knowledge and belief was to be the basis of the contract, but that was plainly to be understood. Ms Corbett drew attention to the parenthesis in condition (b) at the end of the form (see para 7 above: ‘if such statements are fraudulent or material to the acceptance of this application’), but this immediately follows a warranty of correctness to the best of the applicant’s knowledge and belief. It cannot, consistently with the rest of the form, be read as entitling the insurer to cancel the policy if a material fact is not disclosed despite the applicant answering the insurer’s questions fully to the best of his knowledge and belief. Thus the judge was right to regard the real question as being whether Mr Zeller, if he honestly believed he was answering the questions truthfully, was guilty of non-disclosure, and Ms Corbett was correct to tie her submissions, as she expressly did, to the questions Mr Zeller answered. This approach is entirely consistent with that of the Court of Appeal of England and Wales in Economides v Commercial Assurance Co Plc [1998] QB 587, 598, 599, where the duty of the applicant was held to be one of honesty.’

Judges:

Lord Bingham

Citations:

[2008] UKPC 4, [2008] Lloyd’s LR IR 545

Links:

Bailii

Cited by:

Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd CA 4-Oct-2013
The housing association was to develop an estate of social housing, supported by an insurance guarantee. The insurance proposal contained a clause stating that the information in the proposal was to form the basis of the policy, and that the policy . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd TCC 8-Nov-2012
Insurers had rejected a claim under the policy, saying that the proposal form had included a basis of insurance declaration warranted by the proposer, and that since it had named a main contractor different to the one named, there was no liability . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 13 July 2022; Ref: scu.263864

Berens v Rucker: 1746

Insurers were liable to pay the charge of a compromise bona fide made to prevent the ship from being condemned as lawful prize, or to avoid a greater expence.

Citations:

[1746] EngR 48, (1746-1779) 1 Black W 313, (1746) 96 ER 175 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Transport, Insurance

Updated: 12 July 2022; Ref: scu.380436

FBTO Schadeverzekeringen v Jack Odenbreit: ECJ 13 Dec 2007

ECJ Regulation (EC) No 44/2001 – Jurisdiction in matters relating to insurance – Liability insurance – Action brought by the injured party directly against the insurer – Rule of jurisdiction of the courts for the place where the plaintiff is domiciled.
By virtue of Articles 11(2) and 9(1)(b) of Regulation EC 44/2001 (‘Regulation 44’) a person injured in a motor accident who has a right to bring proceedings directly against the insurer of the driver responsible for his injury is entitled to bring those proceedings before the courts of the Member State in which he is domiciled, provided that the insurer is domiciled in a Member State.

Judges:

CWA Timmermans, P

Citations:

C-463/06, [2007] EUECJ C-463/06, [2008] ILPr 12, [2008] 2 All ER (Comm) 733, [2008] Lloyd’s Rep IR 354, (2007) ECR 1-11321

Links:

Bailii

Statutes:

Regulation EC 44/2001 11(2) 9(1)(b)

Cited by:

Cited – Knight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Cited – Bacon v Nacional Suiza Cia Seguros Y Reseguros Sa QBD 30-Jul-2010
The claimant was injured in a road traffic accident in Spain, and sought to claim here. . .
Cited – Maher and Another v Groupama Grand Est CA 12-Nov-2009
Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of . .
Cited – Wall v Mutuelle De Poitiers Assurances QBD 25-Jan-2013
. .
Cited – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .
Lists of cited by and citing cases may be incomplete.

European, Road Traffic, Insurance

Updated: 12 July 2022; Ref: scu.262915

HLB Kidsons (A Firm) v Lloyds Underwriters (Policy No 621/Pkid00101) and others: Comc 22 Nov 2007

Judges:

Gloster J

Citations:

[2007] EWHC 2699 (Comm)

Links:

Bailii

Citing:

Main Judgment – HLB Kidsons (A Firm) v Lloyds Underwriters Subscribing To Lloyds Policy No 621/Pkid00101 and others ComC 9-Aug-2007
. .

Cited by:

See Also – HLB Kidsons (A Firm) v Lloyd’s Underwriters Subscribing to Lloyd’s Policy No 621/ Pk1D00101 and others CA 31-Oct-2008
In construing the terms of insurance policies written in the Lloyd’s market, counsel submitted that the court should have regard to the post-contract conduct of persons acting for the parties, on the basis that the conduct of those persons was . .
Cited – Cherkley Campaign Ltd, Regina (on The Application of) v Mole Valley District Council and Another Admn 15-Nov-2013
Decision after successful request for judicial review of decision to grant planning permission. The respondent and interested party resisted costs orders saying that the claimant had not been successful on all points.
Held: In general the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Costs

Updated: 12 July 2022; Ref: scu.261822

Poole and others v HM Treasury: CA 24 Oct 2007

The claimants had suffered losses as names in the crash of the Lloyd’s Insurance market. They now sought damages saying that the defendant as regulator of the market, had failed to protect them.

Citations:

[2007] EWCA Civ 1021

Links:

Bailii

Jurisdiction:

England and Wales

Administrative, Insurance, Negligence

Updated: 12 July 2022; Ref: scu.260037

Orient-Express Hotels Ltd v Assicurazioni General Sa (UK Branch) (T/A Generali Global Risk): ComC 27 May 2010

Appeal from an arbitration award.

Judges:

Hamblen J

Citations:

[2010] EWHC 1186 (Comm), [2010] Lloyd’s Rep IR 531, [2010] 1 CLC 847, [2011] Bus LR D7

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .
Cited – The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 11 July 2022; Ref: scu.416132

Zurich Insurance Company v Gearcross Ltd: TCC 25 May 2007

The claimant insured new buildings under a scheme at the request of developers. It now sought re-imbursement of expenditure in remedying defects in a property constructed by the defendant.

Judges:

Peter Coulsn QC J

Citations:

[2007] EWHC 1318 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Construction

Updated: 11 July 2022; Ref: scu.258376

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 capital Articles 28, 31, 36 and 40 of the Agreement on the European Economic Area Directive 2002/83/EC Tax legislation providing for less favourable treatment of contributions to occupational pension schemes paid to insurance undertakings established abroad Taxation in Belgium of capital and surrender values paid to beneficiaries who have transferred their residence abroad Tax convention preventing double taxation Representative responsible.

Citations:

[2007] EUECJ C-522/04

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – 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 . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 11 July 2022; Ref: scu.258191

Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters: CA 7 Feb 2007

The claimant had been insured under a business interruption insurance policy issued by the respondent defendaants. A claim had arisen, and had been settled, but the caimant said that the parties had mistaken the basis of the policy and had settled it on the basis that it was on a ‘gross profits basis’ which was subjet to averaging. In fact it was a ‘declaration-linked’ policy not subject to averaging. The mistake was, the claimants said, the result of a misrepresentation by the underwriters, or at least as a common mistake. The claim had been refused by the judge. The claimants now appealed.
Held: The appeal failed.

Judges:

Ward, Neuberger, Wilson LJJ

Citations:

[2007] 1 CLC 164, [2007] EWCA Civ 57, [2007] Lloyd’s Rep IR 460

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters Subscribing Under Policy No. 019057/08/01 ComC 29-Mar-2006
The court was asked whether the Claimants were entitled on the grounds of mistake and misrepresentation to re-open an insurance claim which they compromised with the Defendant underwriters. The claimant said that the it had taken out with the . .

Cited by:

Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
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.

Insurance, Litigation Practice

Updated: 09 July 2022; Ref: scu.248384

Poole and others v Her Majesty’s Treasury: ComC 8 Nov 2006

Names at Lloyds sought damages saying that the government’s failure to implement the Directive had caused them losses.
Held: The claim failed. The claimants did not themselves have a right to require a member state to take up and implement the directive. That role was for the European Community. The claimants were not those intended to benefit from the Directive, and the claims were statute barred in any event.

Judges:

Langley J

Citations:

Times 01-Dec-2006, [2006] EWHC 2731 (Comm)

Links:

Bailii

Statutes:

Council Directive 73/239/EEC of July 24, 1973, on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance

Jurisdiction:

England and Wales

Citing:

Appendices – Poole and others v Her Majesty’s Treasury (Appendices) ComC 8-Nov-2006
. .
Lists of cited by and citing cases may be incomplete.

Insurance, Administrative, European

Updated: 08 July 2022; Ref: scu.245917

Poole and others v Her Majesty’s Treasury (Appendices): ComC 8 Nov 2006

Citations:

[2006] EWHC 2731 – 2 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appendices – Poole and others v Her Majesty’s Treasury ComC 8-Nov-2006
Names at Lloyds sought damages saying that the government’s failure to implement the Directive had caused them losses.
Held: The claim failed. The claimants did not themselves have a right to require a member state to take up and implement the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Administrative, European

Updated: 08 July 2022; Ref: scu.245916

KR and others v Royal and Sun Alliance Plc: CA 3 Nov 2006

The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The appeal was allowed in part. Liability had been found not directly on vicarious liability for the acts of the individual staff members, but rather on the negligence in the system of running the homes. The court had to look at each allegation of abuse to see whether the exemption in the policy applied: ‘If possible the exception clause should be given its natural meaning. The policy covers bodily injury to persons other than employees caused in the course of business. The exception focuses on injury or damage resulting from a deliberate act or omission of the insured. ‘ The insurer was not liable for the deliberate acts of abuse from the time after the policy successfully excluded such liability.

Citations:

Times 08-Nov-2006, [2006] EWCA Civ 1454

Links:

Bailii

Statutes:

Third Parties (Rights against Insurers) Act 1930 1

Jurisdiction:

England and Wales

Citing:

Cited – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 10-Jun-2003
The court considered an extension of the time for claiming damages for personal injuries after the claimants said they had been sexually abused as children in the care of the defendants.
Held: The test to be applied under section 14(2) was . .
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 – Stubbings v Webb and Another HL 10-Feb-1993
Sexual Assault is not an Act of Negligence
In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .
Cited – Wayne Tank and Pump Company Ltd v Employers Liability Assurance Corporation Ltd CA 1973
The court discussed the effect of an exception clause in an insurance policy: ‘The effect of an exception is to save the insurer from liability for a loss which but for the exception would be covered. The effect of the cover is not to impose on the . .
Mentioned – J J Lloyd Instruments Limited v Northern Star Insurance Co Ltd; The Miss Jay Jay CA 1987
The insurers insured against an adverse sea but not against defective manufacture or design. Both were found to be proximate causes of the loss.
Held: The Court of Appeal upheld the first instance judge that the owners could claim under the . .
Cited – ST v North Yorkshire County Council CA 14-Jul-1998
The court considered the liability of the respondent for sexual assaults committed by an employee teacher when taking students on school trips.
Held: The Local Authority was not vicariously liable for sexual assault committed by employee . .
Mentioned – The Aliza Glazial CA 2002
. .
Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
Cited – HL Bolton (Engineering) Co Ltd v TJ Graham and Sons Ltd CA 1957
The landlord asserted that a tenancy should not be renewed and claimed to have held the freehold for more than 5 years.
Held: The Landlord had only become the reversioner to the lease after accepting a surrender of the head lease. The Act . .
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
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 – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance, Vicarious Liability

Updated: 08 July 2022; Ref: scu.245841

Nelson Marketing International Inc v Royal and Sun Alliance Insurance Co. of Canada: 28 Jun 2006

(British Columbia Court of Appeal) Shipments of laminated truck flooring were damaged by moisture absorbed by the flooring in the course of manufacture, which on the voyage had evaporated and condensed in circumstances which were not established to be other than what was expected in the ordinary course of the voyages in question.

Citations:

2006 BCCA 327

Links:

Canlii

Jurisdiction:

Canada

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.

Commonwealth, Insurance

Updated: 07 July 2022; Ref: scu.428505

Yaqoob and Another v Royal Insurance (Uk) Ltd: CA 25 May 2006

Appeal against refusal of insurance company to pay on fire loss claim. Building entered by intruders with key.
Held: ‘If after hearing the evidence the judge had been left in the position that he could not be satisfied, on the balance of probabilities, that the fire was not started by Mr Yaqoob or with his connivance, then the claim would fail.’ The judge’s decision in favour of the insured could not stand, and the matter should not be remitted for retrial.

Citations:

[2006] EWCA Civ 885

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 07 July 2022; Ref: scu.242964

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 more than two and a half years, but the judge held that this had not prejudiced the insurers.
Held: The insurer’s appeal succeeded. What consituted a reasonable time for the furnishing of documents to support a claim was a matter of fact in each case. The delay was clearly unreasonable, and there was no general rule of law that a lack of prejudice to the insurer was a sufficient excuse. In any event the insurer had suffered possible prejudice, by for example being unable to decide whether to take conduct of the action. May LJ: ‘On the one hand, it is commonplace that if you have to judge what is a reasonable time you take all relevant circumstances into account. Why then is not eventual prejudice to the insurer a relevant circumstance? On the other hand, there are other considerations than just whether eventually there is prejudice. Insurers are entitled to have co-operation and relevant information in good time to be able to assess that potential liability and to take appropriate action. Appropriate action could, importantly in some cases, including deciding to take control of the defence of the case. ‘

Judges:

Sir Anthony Clarke MR, May LJ, Gage LJ

Citations:

[2006] EWCA Civ 939, Times 26-Jul-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Shinedean Ltd v Alldown Demolition (London) Ltd and Another TCC 28-Oct-2005
. .
Cited – Welch v Royal Exchange Assurance CA 1938
The court was asked whether compliance with a clause in the insurance contract was a condition precedent. There was also a question whether the insured could rely on facts arising after the making of their claim.
Held: If a clause does not set . .
Cited – George Hunt Cranes Ltd v Scottish Boiler and General Insurance Co Ltd CA 2002
Provisions in a policy which are stated to be conditions precedent should not be treated as a mere formality which is to be evaded at the cost of a forced and unnatural construction of the words used in the policy. They should be construed fairly to . .
Cited – Barrett Bros (Taxis) Ltd v Davies Lickiss and Milestone Motor Policies at Lloyd’s, Third Parties CA 1966
The court was asked whether notice had in substance been properly given by an insured so as to allow a claim to be made under an insurance policy. The County Court judge held that there had been a breach of condition and that the insurers were . .
Cited – 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 . .
Cited – Pioneer Concrete (UK) Ltd v National Employers Mutual General Insurance Association Ltd 1985
The case concerned the construction of a policy containing terms requiring the insured to notify the insurers ‘immediately’ if he had knowledge of any accident, claim or proceedings.
Held: In any case where an insurer is entitled to rely on . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 July 2022; Ref: scu.242973

Brownsville Holdings Ltd v Adamjee Insurance Co Ltd (“The Milasan”): 2000

A 90 foot motor yacht sank in calm weather in the course of a voyage from Piraeus to Sardinia with a crew of three: a skipper, an engineer and a deckhand.
Held: The owner’s insurance claim failed. There had been a breach of warranty in these terms: ‘Warranted professional skippers and crew in charge at all times.’ The claimants accepted that this was a promissory warranty – there was no argument that it was a term simply delimiting or describing the risk. Aikens J: ‘I accept . . that a practical construction must be given to the words of the warranty. I think it is clear that the insurers were concerned to ensure that the vessel was properly looked after all the time, both winter and summer, and wherever she was – whether cruising or in a marina for the winter months.
The ‘skipper’ together with the ‘crew’ has to be ‘in charge’ of the vessel ‘at all times’. In my view the wording ‘professional skippers and crew to be in charge’ means that the skipper and the crew’ together are to take care of and manage the vessel; that is the sense in which they are to be ‘in charge’ of her. They are also to be ‘in charge’ of the vessel together ‘all the time’. The last phrase is . . quite clear. It means that there must be a professional skipper and a crew that looks after the vessel the whole time, as opposed to intermittently or at intervals.’ As the claimants had not employed anyone who was a ‘professional skipper’ over a period of time, they were in breach of warranty. In summary ‘On the proper construction of the ‘professional skipper warranty’ the claimants were obliged to keep a suitably qualified skipper on board the yacht at all times . . ..’

Judges:

Aikens J

Citations:

[2000] 2 Lloyd’s Rep 458, [2000] EWHC 223 (Comm)

Links:

Bailii

Cited by:

Cited – GE Frankona Reinsurance Ltd v CMM Trust No.1400 (the ‘Newfoundland Explorer’) AdCt 22-Mar-2006
The owner sought to claim under his insurance policy. The yacht was, in the policy warranted to be fully crewed at all times. The owner had left the boat to return a few hours later when it was found on fire.
Held: The insurance claim failed. . .
Cited – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 06 July 2022; Ref: scu.242640

CP (A Child) v Royal London Mutual Insurance Society Ltd: CA 30 Mar 2006

A mill had burned down when children had lit a fire. They had not intended the fire to get out of hand as it did. The insurance company refused to pay out on the basis that the policy did not cover damage arising from ‘any wilful malicious or criminal act’ carried out by the assured’s immediate family, including children.
Held: ‘[W]ilful is used in many contexts. One can safely say that it always means deliberate and that it will take any further meaning from the word or words which it qualifies and its context but beyond that one cannot go. . Equating wilfulness with recklessness is consistent with the dictionary definition of wilful which includes obstinate and headstrong conduct. That is the essence of recklessness as well.’ The insurer’s appeal failed.

Judges:

Lord Justice Tuckey Lady Justice Hallett The Honourable Mr Justice Thomas

Citations:

[2006] EWCA Civ 421, [2007] Lloyd’s Rep IR 85

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re Young and Harston’s Contract CA 1885
The court set out what was meant by the term ‘wilful default’ when used in a contract for the sale of land. Bowen LJ said: ‘Wilful is a word of familiar use in every branch of law, and although in some branches of the law it may have a special . .

Cited by:

Cited – Porter v Zurich Insurance Company QBD 5-Mar-2009
The claimant insured his house with the defendants. Severely depressed, drunk and delusional, he set fire to it and now claimed after refusal to pay out. He said that he was not acting as a free agent.
Held: A claimant who seeks to recover . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 06 July 2022; Ref: scu.241396