Royal Boskalis Westminster NV and Ors v Trevor Rex Mountain and Others: ComC 18 Dec 1995

Marine insurance – assured – revocation of notice abandonment – before or after commencement of action – effect : Marine insurance – assured – declaration of intention not to make claim for total loss – recovery of property – effect : Marine insurance – ‘waived claim’ – recovery in sue and labour – English law – claim – valid and lawful contract – unenforceable – tainted by collateral contract or conduct – connection – Beresford and Bowmakers principles : illegality defence – relevance of foreign law – doctrine of Foster v Driscoll, Regazzoni v Sethia : Marine insurance – valid English agreement – reliance on collateral foreign agreement – infringement of public policy – Lemenda Trading principle – extension : Marine insurance Act 1906 – defences – section 41 – lawfulness of adventure : Marine Insurance Act 1906 – defences – section 55 – wilful misconduct : defence – section 78(1) – expenses properly incurred : Marine Insurance Act 1906 – duty of good faith – avoidance – section 17 – claims – scope – fraudulent claims : Marine insurance – doctrine of materiality – fraudulent claim – no additional test for materiality – implied term of forfeiture : Marine insurance – post-contractual duty of good faith – remedies.
Rix J said that abandonment of a ship is: ‘A cession or transfer of the ship to the underwriter, and of all his property and interest in it with all the claims that may arise from its ownership, and all the profits that may arise from it, including the freight then being earned. Its operation is as effectually to transfer the property of the ship to the underwriter as a sale for valuable consideration, so that of necessity it vests in the underwriter a chattel of more or less value, as the case may be.’ and
‘Normally, the assured must indicate his election to abandon by giving a notice of abandonment, which thus becomes a condition precedent to the right to claim a CTL (Section 62(1)), but exceptionally a notice of abandonment may be dispensed with (Section 62(7), (8), (9)). The underwriter is not obliged to accept the notice, and thus the abandonment, but if he does the abandonment is irrevocable (Section 62(6)). It seems to follow, as Atkinson J. held, [in PYSBE v. Beer] that an unaccepted notice of abandonment is revocable. An underwriter may pay the claim without accepting the abandonment: he is not obliged to take over a wreck, which may be a damnosa hereditas – see Allgemeine Versicherungs-Gesellschaft Helvetia v. Administrator of German Property [1931] 1 KB 672 at 687/88 per Scrutton L.J. If, however, he wishes, he is ‘entitled’ to take over the assured’s interest in the property (Section 63(1)). That is in any event the right of any underwriter who pays for a total loss, whether or not there is abandonment (Section 79, which repeats the language found in Section 63(1) to the effect that the insurer is entitled ‘to take over the interest of the assured in whatever may remain of the subject matter’).’
Rix J considered the effect of a falsehood in the claim. He said that the claim for sue and labour costs was entitled to succeed irrespective of the matters which the owners had concealed: ‘Whatever be the precise definition and ambit of the concept of a fraudulent claim, there was no such claim here. I am in the process of finding that the sue and labour claim was and is a good and valid claim. It is not a false or fraudulent claim. It is totally unlike those instances of fraudulent claim to be found in the authorities, such as claims in respect of deliberately self-inflicted or pretended losses, or claims in amounts which are knowingly or recklessly exaggerated: see, for instance, Goulstone v The Royal Insurance Co, (1858) 1 F and F 276, where, in the context of a claim for inter alia the loss of furniture whose value was exaggerated four-fold, Pollock CB glossed a fraudulent claim as one ‘wilfully false in any substantial particular’ at p 279; or Chapman v Pole, (1870) 22 LT 306, where again in the context of exaggerated value Cockburn, CJ spoke of one who ‘knowingly preferred a claim he knew to be false or unjust’ at p 307; or The Captain Panagos DP, [1986] 2 Lloyd’s Rep 470, where Mr Justice Evans defined a fraudulent claim as ‘one which is made on the basis that facts exist which constitute a loss by an insured peril, when to the knowledge of the assured those alleged facts are untrue’, at p 511. It seems to me that even if one assumed, for instance, that the representation over the existence of any record of the finalization agreement was made fraudulently, that would not make the claim in question a fraudulent claim within these definitions of that expression.’

Judges:

Rix J

Citations:

Unreported, 18 December 1995, [1997] 1 Lloyd’s Rep LR 523

Statutes:

Marine Insurance Act 1906 64(2) 41 55 78(1)

Jurisdiction:

England and Wales

Cited by:

At ComCRoyal Boskalis Westminster NV and others v Mountain and others CA 28-Feb-1997
Effect of illegality on a contract.
Held: Reversed . .
CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 22 May 2022; Ref: scu.185997

Continental Illinois National Bank and Trust Co Of Chicago And Xenofon Maritime SA v Alliance Assurance Co Ltd: 1986

(‘The Captain Panagos DP’) The ship ran aground in the red sea. While aground it suffered a major fire. The owners submitted a claim on the basis that it was a total loss, or in the alternative, that they could recover a partial claim arising from each event. The underwriters said that each loss had been connived at or procured by the owners.
Held: The claim was rejected. The vessel had been deliberately run aground and then set on fire.
Evans J defined a fraudulent claim as ‘one which is made on the basis that facts exist which constitute a loss by an insured peril, when to the knowledge of the assured those alleged facts are untrue’.

Judges:

Evans J

Citations:

[1986] 2 Lloyd’s Rep 470

Jurisdiction:

England and Wales

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 21 May 2022; Ref: scu.623436

Chapman v Pole: 1870

In the context of exaggerated value Cockburn, CJ spoke of one who ‘knowingly preferred a claim he knew to be false or unjust’

Judges:

Cockburn CJ

Citations:

(1870) 22 LT 306

Jurisdiction:

England and Wales

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 21 May 2022; Ref: scu.623435

Continental Illinois National Bank and Trading Company of Chicago v Bathurst: 1985

O insured their vessel for 9 million dollars under a hull policy. P bank had agreed to advance money against a mortgage over the vessel. A loss payable clause in favour of the bank was in indorsed on the hull policy. In addition the bank entered into its own MI policy with D being an underwriter who insured the vessel for the bank in the sum of 6.85 million dollars. The vessel was lost and hull underwriters declined to pay, contending that the vessel was deliberately cast away. P brought an action under the MI policy. P admitted to liability but disputed quantum. The case turned on the meaning of the words ‘insured amount’ in the MI policy.
Held: 1)the value stated in the whole policy was irrelevant; 2) the policy was not a valued policy within the terms of section 27(2) of The Marine Insurance Act 1906 and 3) the measure of indemnity was to be ascertained by reference to her market value.

Judges:

Mustill J

Citations:

(1985) 1 Lloyds Rep 264

Jurisdiction:

England and Wales

Insurance

Updated: 21 May 2022; Ref: scu.623912

Reid and Co Ltd v Employer’s Accident and Livestock Insurance Co Ltd: 1899

The genuine part of a fraudulently inflated claim is recoverable.

Citations:

(1899) 1 F 1031

Jurisdiction:

Scotland

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 21 May 2022; Ref: scu.623432

Wisenthal v World Auxiliary Insurance Corpn Ltd: 1930

A claim was made under an all risks policy on goods in transit and in storage pending sale. The insurers disputed the insured’s title and accused her of fraudulently exaggerating her claim. They also alleged that facts and documents relevant to these issues had been concealed.
Held: Roche J directed the jury: ‘Fraud, said his Lordship, was not mere lying. It was seeking to obtain an advantage, generally monetary, or to put someone else at a disadvantage by lies and deceit. It would be sufficient to come within the definition of fraud if the jury thought that in the investigation deceit had been used to secure easier or quicker payment of the money than would have been obtained if the truth had been told.’

Judges:

Roche J

Citations:

(1930) 38 L Rep 54

Jurisdiction:

England and Wales

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 21 May 2022; Ref: scu.623433

Hill and Another v Mercantile and General Reinsurance Co Plc: CA 25 Jul 1994

Re-insurers are bound by ‘follow settlement’ clause where the claim is within the risks covered.

Citations:

Times 25-Jul-1994

Jurisdiction:

England and Wales

Cited by:

Appeal fromHill and Others v Mercantile and General Reinsurance Co Plc; Berry and Others v Same HL 15-Aug-1996
Liability under reinsurance was not invalidated by a compromise including other claims. The parties to reinsurance contracts could set their own ways of proving the loss within a contract. A Full Reinsurance Clause is not binding in respect of any . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 20 May 2022; Ref: scu.81375

K/S Merc-Scandia XXXXII v Underwriters to Lloyd’S Policy 25T 1054 87 and Others: QBD 20 Jul 2000

The Insurers had avoided a policy after a claim had been brought, and the insured had produced a fraudulent document. Having won their case, the applicants sought to enforce the award against the insurers. The insurers were held not to be excused under the policy. The duty of good faith applied on matters up to the claim, but need not apply to all questions which arose after a claim had been validly made. The forged document did not demand that the insurers assume any new risk, and the insurers remained answerable.

Citations:

Gazette 20-Jul-2000, Times 08-Aug-2000

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Appeal fromK/S Merc-Scandia XXXXII v Underwriters to Lloyd’s Policy 25T 1054 and Others CA 31-Jul-2001
The owners of the ‘MERCANDIAN CONTINENT’ had obtained judgment in earlier High Court proceedings against a Trinidadian shipyard for damage caused by negligent repair work. Jurisdiction in the earlier proceedings had been founded on an agreed . .
Lists of cited by and citing cases may be incomplete.

Commercial, Insurance

Updated: 20 May 2022; Ref: scu.82659

Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others: CA 16 Oct 2014

Judges:

Christopher Clarke, Vos LJJ, Sir Timothy Lloyd

Citations:

[2014] EWCA Civ 1349, [2015] QB 608

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

At ComCVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others ComC 14-Jun-2013
The claimant shipowners suffered damage to their vessel and claimed under their policy with the defendants. The defendants argued that part of the evidence supporting the explanation of the claim was fabricated, thus excusing any payment.

Cited by:

At CAVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 20 May 2022; Ref: scu.537618

Vyse v Wakefield: 1840

The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as might be asked respecting his age, and, in order to enable the plaintiff to ensure his life, and would riot afterward do or permit to be done any act whereby such insurance should be avoided or prejudiced. It then alleged, that the defendant, in part performance of his covenant, did, at the plaintiff’s request, appear at the office of the Rock Life Insurance Company, and did answer certain questions asked of him ; and that the plaintiff insured the defendant’s life with that Company, by a policy containing a proviso, that if the defendant went beyond the limits of Europe, the policy should be null and void : – Breach, that the defendant went beyond the limits of Europe, to wit, to the province of Canada, in North America :- Held, on special demurrer, that the declaration was bad, for not averririg that the defendant had notice that the policy was effective.
Lord Abinger CB said: ‘The rule to be collected from the cases seems to be this, that where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, this notice ought to be given.’

Judges:

Lord Abinger CB

Citations:

[1840] EngR 276, (1840) 6 M and W 442, (1840) 151 ER 485

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoVyse v Wakefield CExC 1840
A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the . .

Cited by:

CitedEdwards v Kumarasamy SC 13-Jul-2016
The claimant sub-tenant had been injured entering the block of apartments. He said that the freeholder was responsible despite no report of the disrepair having been made. The lease excused the landlord from unnotified liability. The parties . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309702

Vyse v Wakefield: CExC 1840

A writ of error having been brought an the judgment of the Court of Exchequer in this case (6 M. and W 442), it now came on for argument. The Court, however, on reading the record, were unanimously of opinion, that an averment of notice to the defendant that the policy had been affected was necessary to make the declaration good, arid that the judgment must he affirmed.
Judgment affirmed.

Citations:

[1840] EngR 277, (1840) 7 M and W 126, (1840) 151 ER 706 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See AlsoVyse v Wakefield 1840
The declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 20 May 2022; Ref: scu.309703

Johnson And Another v Chapman: 10 Jul 1865

Deck-cargo {timber) lawfully laden pursuant to charterparty, having broken adrift in consequence of stormy weather, and impending the navigation and endangering the safety of the vessel, was necessarily thrown overboard.
Held: that the shipper was entitled to claim general average in respect thereof, as against the ship-owner.

Judges:

Cockburn CJ

Citations:

[1865] EngR 665, (1865) 19 CB NS 563, (1865) 141 ER 907

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 20 May 2022; Ref: scu.281577

Britton v Royal Insurance Company: 1865

The insured made a claim under his insurance policy for twice the amount he had actually lost. It was an express condition of the insurance policy that a fraudulent part of a claim would avoid the balance of the claim.
Held: The duty of good faith in insurance contracts is a continuing one.
Willes J said: ‘A fire insurance, he said, is a contract of indemnity; that is, it is a contract to indemnify the assured against the consequences of a fire, provided it is not wilful. Of course, if the assured set fire to his house, he could not recover. That is clear. But it is not less clear that, even supposing it were not wilful, yet as it is a contract of indemnity only, that is, a contract to recoup the insured the value of the property destroyed by fire, if the claim is fraudulent, it is defeated altogether. That is, suppose the insured made a claim for twice the amount insured and lost, thus seeking to put the office off its guard, and in the result to recover more than he is entitled to, that would be a wilful fraud, and the consequence is that he could not recover anything. This is a defence quite different from that of wilful arson. It gives the go-bye to the origin of the fire, and it amounts to this – that the assured took advantage of the fire to make a fraudulent claim. The law upon such a case is in accordance with justice, and also with sound policy. The law is, that a person who had made such a fraudulent claim could not be permitted to recover at all. The contract of insurance is one of perfect good faith on both sides, and it is most important that such good faith should be maintained. It is the common practice to insert in fire-policies conditions that they shall be void in the event of a fraudulent claim; and there was such a condition in the present case. Such a condition is only in accordance with legal principle and sound policy. It would be most dangerous to permit parties to practise such frauds, and then, notwithstanding their falsehood and fraud, to recover the real value of the goods consumed. And if there is wilful falsehood and fraud in the claim, the insured forfeits all claim whatever upon the policy.’

Judges:

Willes J

Citations:

[1865] EngR 66, (1865) 4 F and F 905, (1865) 176 ER 843

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedGalloway v Guardian Royal Exchange (UK) Limited CA 15-Oct-1997
The claimant’s policy had been declared void ab initio by the court. On the application form he had falsely stated that he had no convictions, but had only shortly before been convicted of obtaining a pecuniary advantage by deception. Part of the . .
CitedPorter 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, Insurance, Torts – Other

Updated: 19 May 2022; Ref: scu.214223

Direct Line Insurance Plc v Khan and Another: CA 11 Oct 2001

If part of an insurance claim is shown to be fraudulent, the entire claim is avoided.

Citations:

[2001] EWCA Civ 1794, [2002] LRIR 364, 2002] Lloyd’s Rep IR 364

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoDirect Line Insurance Plc v Khan and Another CA 4-Apr-2001
. .

Cited by:

CitedAXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
CitedAXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 19 May 2022; Ref: scu.201387

Agapitos and Another v Agnew and others: ComC 24 Jul 2002

The common law principle governing fraudulent claims has a separate origin and existence to any principle that exists under or by analogy with s.17 of the Act.

Judges:

Moore-Bick J

Citations:

[2002] EWHC 1558 (Commercial), [2003] Lloyd’s Rep IR 54

Links:

Bailii

Statutes:

Marine Insurance Act 1906 17

Jurisdiction:

England and Wales

Cited by:

CitedAXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
At ComCAgapitos and Another v Agnew and others CA 6-Mar-2002
Insurers resisted a claim saying that fraudulent acts of the defendants to promote an otherwise valid claim, made the entire claim void. The insurance required certificates to be obtained before ‘hot’ works were undertaken as part of the ship’s . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 19 May 2022; Ref: scu.175503

Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Another: CA 23 Jan 1997

The results which would follow from a fraudulent insurance claim should not to be extended similarly to follow from culpable non-disclosure in the absence of fraud.

Citations:

Times 23-Jan-1997, [1996] EWCA Civ 1279

Jurisdiction:

England and Wales

Cited by:

Appeal fromManifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 19 May 2022; Ref: scu.83378

J Rothschild Assurance Plc v Collyear and Othersl: ComC 29 Sep 1998

A claim against an insurance company for compensation for pensions mis-selling was properly subject of a claim by the insurance company in turn under its own professional indemnity insurance policy. Under a ‘claim made’ policy, the risk insured is that for which a claim is made in the period of the insurance whenever the damage or its cause arose.

Judges:

Rix J

Citations:

Times 15-Oct-1998, [1998] EWHC 1205 (Comm), [1999] 1Ll LR 6

Links:

Bailii

Cited by:

CitedQuinn 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

Updated: 19 May 2022; Ref: scu.82449

Haydon and Others v Lo and Lo (A Firm) and Another: PC 23 Jan 1997

(Hong Kong) A claim was made under a professional indemnity policy. The solicitors’ clerk had through a series of frauds embezzled some HK$50m. The insurers said that this was one claim, and that their liability was limited to the maximum under the policy. The question was whether this was ‘one claim’ or a series of claims.
Held: The phrase referred to the claim as directed against the firm by the client who had lost out, and not to the several acts of appropriation by the clerk. ‘it is the underlying facts which are determinative, and . . the formulation of the claim by the third party cannot be decisive of an insurer’s liability, whether for the purpose of calculating the deductible, or for any other purpose. ‘
(Hong Kong)

Judges:

Lord Goff of Chieveley, Lord Griffiths, Lord Lloyd of Berwick, Lord Hope of Craighead, Sir Christopher Slade

Citations:

Times 23-Jan-1997, [1997] UKPC 2, [1997] 1 WLR 198

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

CitedAustralia and New Zealand Bank Limited v Colonial and Eagle Wharves Limited 1960
A claim was made under an all risks insurance policy on goods taken out by a firm of wharfingers. There was an excess of andpound;100 each and every claim. During the currency of the policy the wharfingers misdelivered a total of 246 bales on 30 . .
CitedWest Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .
Lists of cited by and citing cases may be incomplete.

Insurance, Commonwealth

Updated: 19 May 2022; Ref: scu.81285

Cox v Bankside Members Agency Ltd and Others: QBD 27 Jan 1995

Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents against each of which claims were being pursued, by different Lloyd’s Names. The essential issue was whether each claim ascertained as against an agent exhausted the agent’s insurance cover pro tanto, or whether all claims falling individually within a policy’s scope ranked or could be treated as ranking pari passu against the policy in whatever order they were ascertained against the insured agent or agents.
Held: Lloyds claims are to have priority of payment according to time of orders. The statutory transfer under the Act occurred notwithstanding that the insured’s liability to the third party had not yet been extinguished. The statutory transfer to the third party of the insured’s right against his insurer takes place at the moment of his bankruptcy.
Phillips J said: ‘In a situation of solvency, the ranking of claims against the EandO underwriter depends upon the order in which the third party Names establish liability against the assured by judgment, arbitration award or settlement, thereby giving rise to a vested right on the part of the assured to indemnity in accordance with the terms of the cover. The same is true in a situation of insolvency. If the insolvency occurs after third party Names have established quantified liability, the right or rights to indemnity that were thereby established in the assured agent will be transferred to the Names upon the assured becoming formally insolvent. If quantified liability has not been established at the date of insolvency, a third party Name asserting a claim will have transferred under the Act merely an inchoate or contingent right. If before that Name establishes a quantified claim, other quantified claims are established which exhaust the cover, his contingent right will be rendered nugatory.’ Phillips J summarised the relationship between the insurers and the solicitors acting: ‘Where underwriters instruct a solicitor to conduct the defence, they thereby create the relationship of solicitor and client between the solicitor and the assured . . The normal consequence of this is that the assured becomes liable to pay the solicitor’s costs, even if the underwriters were also liable for those costs . . Those costs are properly deemed to be incurred by the assured, even if they are funded by underwriters. . .’

Judges:

Phillips J

Citations:

Times 27-Jan-1995, [1995] 2 Lloyd’s Rep 437

Cited by:

Appeal fromCox 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 . .
CitedCentre Reinsurance International Co and Another v Curzon Insurance Ltd ChD 12-Feb-2004
It was a necessary part of the system of statutory transfers of insurance obligations under the Act, that the rights should be transferred before exhaustion of any policy excess, and notwithstanding the insolvency. The rights (inchoate at this . .
CitedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
CitedLaw Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency, Insurance

Updated: 19 May 2022; Ref: scu.79586

Commissioners of Customs and Excise v Cresta Holidays Ltd and Others: ChD 5 Apr 2001

Travel operators sold insurance on behalf of insurance companies who paid on Insurance Premium Tax. The level of tax was raised, but the increase was later found to be unlawful state aid. The operators sought a refund of the tax overpaid from the Commissioners. Such a claim could be made only under one of two provisions. One related to claims before payment, and the second to restitution. Since the claimants had not themselves paid the tax, there was no restitution, and the claim failed.

Citations:

Gazette 05-Apr-2001, [2001] EWCA Civ 215

Links:

Bailii

Insurance, Torts – Other, Customs and Excise

Updated: 19 May 2022; Ref: scu.79376

Card Protection Plan Ltd v Commissioners of Customs and Excise: HL 6 Feb 2001

The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services for those who had lost a card, and laid off the costs against their own re-insurance. The European Court had defined insurance as the payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded. The commissioners held that two services were included, one of insurance, and one of the registration of an individual’s card and other details.
Held: The dominant purpose of the contract was for insurance. Others were ancillary or minor. (Slynn) ‘the court’s task is to have regard to the ‘essential features of the transaction’ to see whether it is ‘several distinct principal services’ or a single service and that what from an economic point of view is in reality a single service should not be ‘artificially split’. It seems that an overall view should be taken and over-zealous dissecting and analysis of particular clauses should be avoided.’ The court should asking itself ‘what is the essential feature of the scheme or its dominant purpose – perhaps why objectively people are likely to want to join it’.

Judges:

Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Nolan Lord Steyn Lord Hoffmann

Citations:

Times 06-Feb-2001, Gazette 01-Mar-2001, [2001] UKHL 4, [2001] 2 ALL ER 143, [2001] 2 WLR 329, [2002] 1 AC 202

Links:

House of Lords, Bailii

Statutes:

Sixth Council Directive (77/388/EEC) (OJ 1977 L145/1), Value Added Tax Act 1983 17(1)

Jurisdiction:

England and Wales

Citing:

Referred backCard Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .

Cited by:

Referred backCard Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .
CitedCollege of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
CitedCollege of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Lists of cited by and citing cases may be incomplete.

VAT, Banking, Insurance

Updated: 19 May 2022; Ref: scu.78887

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 insurances between themselves eventually exhausted the cover, leaving none. Many members sued their underwiters, and the question was how the losses should be aggregated, the policies referring to losses arising ‘out of one event’.
Held: An ‘originating event’ is a one off, event, and is neither a continuous event, nor the same as a ’cause’. The expressions were different. The word ‘originating’ had been chosen to widen up the meaning to look out for one underlying and unifying factor. The claims could be aggregated.

Judges:

Mustill L

Citations:

Times 02-Jul-1996, Gazette 12-Sep-1996, [1996] 1 WLR 1026, [1996] 3 All ER 517, [1996] 2 Lloyd’s Rep 233, [1996] 5 Re L R 184, [1996] CLC 1169, (1996) 146 NLJ 1093, Times 02-Jul-1996

Citing:

CitedCox 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 . .
Reversed on appeal fromAXA Reinsurance UK Plc v Field CA 10-Oct-1995
Liability limitation for insurers also binds re-insurers of same contract. . .

Cited by:

Reversed on appeal toAXA Reinsurance UK Plc v Field CA 10-Oct-1995
Liability limitation for insurers also binds re-insurers of same contract. . .
CitedLloyds 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, Insurance

Updated: 18 May 2022; Ref: scu.78033

Kingscroft Insurance Company Limited, Walbrook Insurance Company Limited etc v The Nissan Fire and Marine Insurance Company Limited (No 2): 1999

An expert witness: ‘can, and indeed should inform the court of any aspects of the commercial background which have a bearing on the construction of the contract and explain their relevance’.

Citations:

[1999] Lloyds Insurance and Reinsurance Law Reports 603

Cited by:

CitedCrema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 18 May 2022; Ref: scu.430073

Godin v The London Assurance Company: 1746

Insurance made by a factor, who has a lien on the goods of his principal, does not pass by a consignmerit of the goods insured to a third person, by the principal.

Citations:

[1746] EngR 202, (1746-1779) 1 Black W 104, (1746) 96 ER 58

Links:

Commonlii

Cited by:

See AlsoGodin Et Al v London Assurance Company 9-Feb-1758
The defendant insurers contended that because there had been double insurance they ought only to have to pay half the loss, although neither insurer had as yet paid any sum. They appealed against an order that it pay the whole loss.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 18 May 2022; Ref: scu.380590

Knight v Cambridge: 1795

If the master of a sbip, intending to avoid the payment of port duties, attempt to run her out of port, and is stopped, and the ship thereby forfeited, this is barratry in the master, and renders the underwriter of the ship liable, within the terms of a policy insuring against the barratry of the master.

Citations:

[1795] EngR 2308, (1795) 8 Mod 229, (1795) 88 ER 165 (B)

Links:

Commonlii

Transport, Insurance

Updated: 18 May 2022; Ref: scu.354653

The Sea Insurance Company Of Scotland v Gavin, And Others: SCS 1829

Under a policy insuring a brigantine ” at and from L. to S., and thence to ‘Barcelona, and at and from thence and two other ports in Spain, to a ‘port in Great Britain : ‘–held, that Saloe, a place lying in a bay, having warehouses and a jetty, with a depth of water sufficient for feluccas, but not for large ships, and a good roadsted anchorage where ships lie and are loaded by means of small craft ; having also a custom-house and officers is a ”port’ within the meaning of the policy.

Citations:

[1829] EngR 244, (1829) 4 Bligh NS PC 578, (1829) 5 ER 206

Links:

Commonlii

Scotland, Transport, Insurance

Updated: 18 May 2022; Ref: scu.322112

Charnock v Liverpool Corporation and Kirbys (Commercial) Ltd: CA 1968

When an insured Vehicle was sent for repairs with the assent of an insurer, there were two separate contracts which arose in respect of the repairs. The first contract was between the insurer and the repairer that the insurer would pay for the repairs. The second contract was between the insured and the repairer that the repairs would be carried out by the repairer with reasonable care and expedition. Where the contract does not specify the time within which works are to be completed a term will be implied which binds the contractor to complete within a reasonable time.
Harman LJ said: ‘the judge held that the repairers were liable because they had impliedly contracted with the plaintiff to do the work within a reasonable time and, not having done so, they were in breach of their contract in that respect.
The fact that the insurance company will indemnify the owner is well known in all insurance cases to both parties. The practice has grown up that the insurance company shall agree the sum for which they will stand surety and a contract is very often made by the repairer with the insurance company. Let it be so in this case. That does not in my view at all rule out the existence of a contract between the person who owns the car and the repairers. The owner takes the car in to the repairers and he asks them to repair it, at whatever cost the insurance company will be willing to go to, and everybody knows that the insurance company will within that limit pay. Whether there is any obligation on the owner himself to pay if the insurance company does not is another matter; but I cannot see why there is, as regards the owner, not a contract on which the repairers are liable first, if they do not do the work with reasonable skill and secondly, if they do notdo it within a reasonable time; and it is on that contract that the present case turns.
The court I think, was inclined to take the view that the judge, who held that there were two contracts, one between the insurers and the repairers and one between the plaintiff and the repairers, was clearly right.
It seems to me that it is quite reasonable to leave standing the view that there was a contract between the repairers and the insurance company and that the only person liable to pay on that
was the insurance company.’

Judges:

Salmon, Harmon LJJ

Citations:

[1968] 1 WLR 1498, [1968] 3 All ER 473

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 17 May 2022; Ref: scu.259332

West Wake Price and Co v Ching: 1957

A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word ‘claim’ – whether used in a popular sense or in a strict legal sense – is such as to attach it to the object that is claimed; and is not the same thing as the cause of action by which the claim may be supported or as the grounds on which it may be based.’
and ‘If you say of a claim against a defendant that it is for ,100, you have said all that is necessary to identify it as a claim; but if you say of it that it is for fraud or negligence, you have not distinguished it from a charge or allegation. In particular, if you identify a claim as something that has to be paid . . it must be something that is capable of separate payment: you cannot pay a cause of action. It follows, I think, that if there is only one object claimed by one person, then there is only one claim, however many may be the grounds or the causes of action which can be raised in support of it.’
and ‘The assured cannot recover anything under the main indemnity clause or make any claim against the underwriters until they have been found liable and so sustained a loss.’

Judges:

Devlin J

Citations:

[1957] 1 WLR 45

Cited by:

CitedHaydon and Others v Lo and Lo (A Firm) and Another PC 23-Jan-1997
(Hong Kong) A claim was made under a professional indemnity policy. The solicitors’ clerk had through a series of frauds embezzled some HK$50m. The insurers said that this was one claim, and that their liability was limited to the maximum under the . .
ApprovedPost Office v Norwich Union Fire Insurance Society Ltd CA 1967
A contract of insurance provided an indemnity for ‘all sums which the insured shall become legally liable to pay as compensation in respect of loss of property’. The claim was by the Post Office against a contractor, Potters, for damaging one of . .
CitedLaw Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 17 May 2022; Ref: scu.242424

Harker v Caledonian Insurance Co: 1980

The monetary limit of the compulsory insurance was to be read into section 10, however ‘there are instances, of which costs and interest on the judgment are examples, where the insurer would be liable in the direct action for sums in excess of the permissible monetary limits upon the cover afforded by the policy.’

Judges:

Lord Diplock

Citations:

[1980] 1 Lloyds Rep 556

Statutes:

Motor Vehicles Insurance (Third-Party Risks) Act 10

Cited by:

CitedPresidential Insurance Company v Molly Hosein Stafford PC 22-Mar-1999
PC (Trinidad and Tobago) Mrs Stafford obtained judgment against a driver insured by the appellant. He was unable to satisfy the claim and she sought recovery from the insurers. They claimed that their liability . .
Lists of cited by and citing cases may be incomplete.

Insurance, Road Traffic

Updated: 16 May 2022; Ref: scu.200465

Commercial Union Assurance Company PLC v NRG Victory Reinsurance Ltd: ComC 1 Aug 1995

Exxon claim clean-up expenses in Texas. Plaintiffs settle on basis would be liable to Exxon in Texas. Excess of loss reinsurance. How should liability of plaintiffs be assessed? Relevance of liability in Texas. Liability of reinsurer. Reinsurer liable on basis of liability in Texas

Judges:

Clarke J

Citations:

[1998] 1 Lloyd’s Rep 80, [1997] CLC 1561

Jurisdiction:

England and Wales

Citing:

Reversed on appeal toSkandia International Corp and Commercial Union Assurance Company PLC v NRG Victory Reinsurance Limited CA 16-Mar-1998
A fully defended foreign judgment against an insurer was binding on the re-insurer, but insurer must show that the settlement was properly entered into.
cw Exxon claimed clean-up expenses in Texas. The . .

Cited by:

Reversed on Appeal fromSkandia International Corp and Commercial Union Assurance Company PLC v NRG Victory Reinsurance Limited CA 16-Mar-1998
A fully defended foreign judgment against an insurer was binding on the re-insurer, but insurer must show that the settlement was properly entered into.
cw Exxon claimed clean-up expenses in Texas. The . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 16 May 2022; Ref: scu.182579

Balfour v Beaumont: 1984

Citations:

[1984] 1 Lloyd’s Rep 272

Jurisdiction:

England and Wales

Citing:

Appeal fromBalfour v Beaumont 1982
. .

Cited by:

CitedLexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 15 May 2022; Ref: scu.372860

Society of Lloyd’s v Clementson: ECJ 29 Nov 1995

Lloyds Name is a separate undertaking and Lloyds’ is an association of undertakings.

Citations:

Gazette 29-Nov-1995

Statutes:

EC Treaty Art 85

Jurisdiction:

European

Citing:

Reference fromSociety of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .

Cited by:

Referred toSociety of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .
Lists of cited by and citing cases may be incomplete.

Insurance, European

Updated: 15 May 2022; Ref: scu.89370

Society of Lloyd’s v Clementson and Another: CA 11 Nov 1994

It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty.

Citations:

Times 16-Nov-1994, Independent 11-Nov-1994

Statutes:

EC Treaty Article 5

Jurisdiction:

England and Wales

Citing:

Appeal fromSociety of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .
Referred toSociety of Lloyd’s v Clementson ECJ 29-Nov-1995
Lloyds Name is a separate undertaking and Lloyds’ is an association of undertakings. . .

Cited by:

Appealed toSociety of Lloyds v Clementson, Same v Mason ComC 11-Jan-1994
An undertaking given on joining Lloyds is a sufficiently binding contract. . .
Appeal fromSociety of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .
Reference fromSociety of Lloyd’s v Clementson ECJ 29-Nov-1995
Lloyds Name is a separate undertaking and Lloyds’ is an association of undertakings. . .
Lists of cited by and citing cases may be incomplete.

European, Insurance

Updated: 15 May 2022; Ref: scu.89374

Society of Lloyds v Clementson, Same v Mason: ComC 11 Jan 1994

An undertaking given on joining Lloyds is a sufficiently binding contract.

Citations:

Times 11-Jan-1994, [1995] CLC 117

Jurisdiction:

England and Wales

Citing:

Appealed toSociety of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .

Cited by:

AppliedEurophone International Ltd v Frontel Communications Ltd ChD 25-Jul-2001
Although the VAT regime required all commercial enterprises to issue VAT invoices in a timely way, that is not sufficient, of itself, to create an implied term into contracts between businesses, that invoices should be issued in a way which would . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 15 May 2022; Ref: scu.89375

Deeny and Others v Gooda Walker Ltd (In Voluntary Liquidation) and Others: QBD 5 Oct 1994

Names at Lloyds could reasonably expect due skill and care to be exercised in the choice of risks accepted on their behalf by underwriters. Incompetence in the writing of ‘excess of loss’ business gave rise to claim for negligence.

Citations:

Times 07-Oct-1994, Independent 05-Oct-1994

Professional Negligence, Insurance

Updated: 15 May 2022; Ref: scu.79875

Banque Paribas (Suisse) S.A. v Stolidi Shipping Company Ltd and Ors: ComC 7 Oct 1997

Insurance – duty of insurance brokers – claim by bank against insurance brokers for alleged breach of duty of care owed to bank – brokers employed by ship owners.
Held: brokers owed bank a duty of care not to mislead the bank and to ensure that the bank was not labouring under a misapprehension – brokers in breach – bank entitled to recover damages on the basis that but for breach, when she became a CTL, the ship ‘STOLIDI’ would have been insured for 100% instead of 21.5%.

Judges:

Clarke J

Citations:

Unreported, 7 October 1997

Jurisdiction:

England and Wales

Insurance

Updated: 13 May 2022; Ref: scu.220801

Den Danske Bank A/S and Others v The Skipton Building Society and Others: ComC 19 Dec 1997

ComC Insurance – Mortgage guarantee insurance – condition as to compliance with lending criteria – consequences of failure to comply. Master Mortgage guarantee insurance policy – whether term warranty descriptive of the risk or condition precedent or other term. Recovery of claims paid – mistake.
Obligation to sue negligent professionals Contract – Penalty clause Contributory negligence- applicability of Law Reform Act 1945 to claim for breach of contractual duty of care. Negligence – Securitisation – title of banks buying bonus to sue agent who effected the loans for transfer.

Judges:

Thomas J

Citations:

[1998] 1 EGLR 140

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 13 May 2022; Ref: scu.220833

Randal v Cockran: 17 Jun 1948

An insurer who has fully indemnified an insured against a loss covered by a contract of insurance between them may ordinarily enforce, in the insurer’s own name, any right of recourse available to the insured.

Citations:

(1748) 1 Ves Sen 98, [1748] EngR 367, (1748) 27 ER 916 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedCaledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
CitedSimpson and Co v Thomson HL 1877
The House discussed the extent of an insurer’s right of subrogation: ‘My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 13 May 2022; Ref: scu.191155

Compania Colombiana de Seguros v Pacific Steam Navigation Co: 1964

The court considered the situation arising where an insurer took an sssignment of the right of action from the insured.
Held: Once there has been an effective assignment of a chose in action, the assignor has no continuing interest in the right in action. The underwriters may however recover more than 100 per cent. of their loss, whereas by subrogation they could only have recovered up to 100 per cent. of their loss. Assignment must be clearly distinguished from subrogation.
Subrogation under insurance policies does not offend the principles against assignment of causes of action.

Judges:

Roskill J

Citations:

[1965] 1 QB 101, [1964] 1 All ER 216

Jurisdiction:

England and Wales

Cited by:

CitedSimpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 11 May 2022; Ref: scu.445435

Re London Marine Insurance Association: 1869

Judges:

Sir William James V-C

Citations:

(1869) LR 8 Eq 176

Jurisdiction:

England and Wales

Cited by:

CitedLexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 11 May 2022; Ref: scu.372859

Norwich Union Life Insurance Society v Qureshi and Another; Aldrich and Others v Norwich Union Life Insurance Co Ltd: CA 13 Aug 1999

The provider of endowment insurance, has a duty of utmost good faith to an insured, but need disclose only matters which are material to the risk. Such facts need not include every fact which might affect the decision to enter into any contract collateral to the insurance contract. Duties under the Financial Services Act did not extend this duty.

Citations:

Times 13-Aug-1999

Statutes:

Financial Services Act 1986 47

Jurisdiction:

England and Wales

Financial Services, Equity, Insurance

Updated: 11 May 2022; Ref: scu.84363

Garrow v Society of Lloyd’s: CA 28 Oct 1999

A proper counterclaim against Lloyd’s of London for fraudulent misrepresentation with an amount at stake equal to the amount claimed was a proper basis for setting aside a statutory demand for a sum due to Lloyd’s, despite the existence of a deed requiring members to ‘pay now and sue later’ which purported to disallow counterclaims and set-off.

Citations:

Times 28-Oct-1999, Gazette 03-Nov-1999

Jurisdiction:

England and Wales

Citing:

Appeal fromGarrow v Society of Lloyd’s ChD 18-Jun-1999
Lloyds sought to claim against the Names on a ‘pay now, sue later’ clause.
Held: The power to order a stay of execution for possession remained and could be exercised in an appropriate case even though a cross-claim under which it was . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 10 May 2022; Ref: scu.80758

Yates v Whyte: 1838

Plaintiff sued Defendants for damaging his ship by collision : Held, that Defendants were not entitled to deduct from the amount of damages to be paid by them, a sum of money paid to Plaintiff by insurers in respect of such damage.

Citations:

(1838) 4 Bing NC 272, [1838] EngR 396, (1838) 132 ER 793

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedSimpson and Co v Thomson HL 1877
The House discussed the extent of an insurer’s right of subrogation: ‘My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it . .
CitedCaledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 09 May 2022; Ref: scu.191158

Dickenson v Jardine: CCP 1868

Goods had been insured for the voyage, but were jettisoned on it. The ship completed her voyage, and the owners of the goods became entitled to recover general average contribution from the other interests which had profited from the jettison. Instead they sued underwriters for the totality of their loss.
Held: They entitled to recover the loss.
Willes J explained: ‘Mr. Williams argued the case in the only way which was possible when he said that a case of jettison under the circumstances here detailed did not constitute a total loss of the goods, because in point of law the loss was less than total, by the value of the right which accrued to have compensation for part of the loss from the shipowner and the other owners of cargo. It was so in one sense, because if the vessel or any part of the cargo arrived safely in consequence of the jettison, the owners must contribute to the loss sustained by the owners of the goods so sacrificed for the general advantage; but the goods were totally lost at the time, though their owner had a contingent right to recover from certain persons a portion of their value. The result is that the owner has two remedies – one for the whole value of the goods against the underwriters, the other for a contribution in case the vessel arrives safely in port; and he may avail himself of which he pleases….’

Judges:

Willes J

Citations:

(1868) LR 3 CP 639

Jurisdiction:

England and Wales

Cited by:

CitedSimpson and Co v Thomson HL 1877
The House discussed the extent of an insurer’s right of subrogation: ‘My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it . .
CitedCaledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 09 May 2022; Ref: scu.191159

Liberian Insurance Agency v Mosse: 1977

Citations:

[1977] 2 Lloyd’s Rep 56

Jurisdiction:

England and Wales

Cited by:

CitedThe 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: 08 May 2022; Ref: scu.449876

Re Sinclair: 1938

Judges:

Sir Christopher Farwell

Citations:

[1938] Ch 199

Jurisdiction:

England and Wales

Cited by:

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

Insurance, Wills and Probate

Updated: 07 May 2022; Ref: scu.251059

Suttle v Simmons: 1989

Citations:

[1989] 2 Lloyds Rep 227

Jurisdiction:

England and Wales

Cited by:

CitedPresidential Insurance Company v Molly Hosein Stafford PC 22-Mar-1999
PC (Trinidad and Tobago) Mrs Stafford obtained judgment against a driver insured by the appellant. He was unable to satisfy the claim and she sought recovery from the insurers. They claimed that their liability . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 06 May 2022; Ref: scu.200467

Everett v Hogg Robinson: 1973

The court was asked whether a re-insurer would have repudiated by reason of a failure to disclose an adverse claims record had the broker not been negligent.
Held: if a broker relies on a causation defence he must satisfy the court that the insurer would in fact have exercised its rights and declined to meet the claim; if this is established no loss flows from the breach. If it is not established then damages are assessed on a loss of a chance basis and the court will value the chance of recovering a full or partial indemnity. Kerr J said: ‘once a plaintiff has proved that as the result of the defendant”s negligence he has lost the benefit of a contract which would have been valid if concluded, but which would have been voidable at the election of the other party, then in my view the burden of proof shifts to the defendant to show that on the balance of probabilities the plaintiff would in any event have lost all or part of the benefit of the contract as the result of the probable action of the other party.’

Judges:

Kerr J

Citations:

[1973] Lloyds Rep 217

Jurisdiction:

England and Wales

Cited by:

AdoptedChannon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence

Updated: 04 May 2022; Ref: scu.572354

Apostolos Konstantine Ventouris v Trevor Rex Mountain, The Italia Express No 2: QBD 1992

A contract of marine insurance is not one to provide peace of mind or freedom from distress.
An assured cannot recover for losses caused by the insurer’s wrongful refusal to pay a valid claim. Interest on the sum is an adequate compensation.

Judges:

Hirst J

Citations:

[1992] 2 Lloyd’s Rep 281

Jurisdiction:

England and Wales

Cited by:

CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
CitedStarlight Shipping Company v Allianz Marine and Aviation Versicherungs Ag and Others (Alexandros T) ComC 19-Dec-2011
Starlight had sued its insurers for payment under policies with regard to the Alexandros T. After allegations of serious misconduct were made against some of the insurance underwiters, the matter was settled with full liabiity under the terms of a . .
ApprovedSprung v Royal Insurance (UK) Ltd CA 1999
An insured cannot recover damages at large for an insurer’s failure to pay. Interest on sums due under a policy is adequate compensation for late payment; this is so, even if an insurer deliberately withholds sums which he knows to be due under a . .
CitedStarlight 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

Updated: 04 May 2022; Ref: scu.540461

Sprung v Royal Insurance (UK) Ltd: CA 1999

An insured cannot recover damages at large for an insurer’s failure to pay. Interest on sums due under a policy is adequate compensation for late payment; this is so, even if an insurer deliberately withholds sums which he knows to be due under a policy.

Citations:

[1999] 1 Lloyd’s Rep IR 111

Jurisdiction:

England and Wales

Citing:

ApprovedApostolos Konstantine Ventouris v Trevor Rex Mountain, The Italia Express No 2 QBD 1992
A contract of marine insurance is not one to provide peace of mind or freedom from distress.
An assured cannot recover for losses caused by the insurer’s wrongful refusal to pay a valid claim. Interest on the sum is an adequate compensation. . .

Cited by:

CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
CitedStarlight Shipping Company v Allianz Marine and Aviation Versicherungs Ag and Others (Alexandros T) ComC 19-Dec-2011
Starlight had sued its insurers for payment under policies with regard to the Alexandros T. After allegations of serious misconduct were made against some of the insurance underwiters, the matter was settled with full liabiity under the terms of a . .
CitedStarlight 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

Updated: 04 May 2022; Ref: scu.540462

Zurich General Accident and Liability Insurance Co Ltd v Morrison: 1942

The statutory requirement for compulsory insurance in the Road Traffic Act 1930 was of little value if it was open to insurers to freely exclude liability for common risks.

Judges:

Goddard LJ

Citations:

[1942] 2 KB 53

Statutes:

Road Traffic Act 1934

Cited by:

CitedBristol Alliance Ltd v Williams and Another QBD 1-Jul-2011
The driver had crashed into the insured’s building causing substantial damage. The court was asked which of the driver’s and building’s insurers should bear the costs. The driver’s insurers said that he had acted deliberately and therefore they were . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance

Updated: 04 May 2022; Ref: scu.441429

Le Cras v Hughes: 3 May 1782

A squadron of ships of war, assisted by land forces, having captured two Spanish register ships, held that the officers and crews of the squadron have an insurabIe interest in the ships captured under the Prize Act, 19 G, 3, c, 67, before condemnation. An average loss opens a valued policy.

Citations:

[1782] EngR 54, (1782) 3 Doug 81, (1782) 99 ER 549

Links:

Commonlii

Jurisdiction:

England and Wales

Insurance, Transport

Updated: 02 May 2022; Ref: scu.372402

Xenos v Wickham: 1862

Citations:

[1862] EngR 250, (1862) 2 F and F 735, (1862) 175 ER 1262

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See AlsoXenos v Wickham 12-Jul-1862
. .
See AlsoStephanos Xenos And Another v Wickham, Chairman Of The Victoria Fire And Marine Insurance Company 18-Apr-1863
. .
See AlsoXenos v Wickham HL 1866
Delivery of document in Escrow
Blackburn J said that a deed is delivered ‘as soon as there are acts or words sufficient to [show] that it is intended by the party to be executed as his deed presently binding on him.’
Lord Cranworth said: ‘The maker (of a deed) may so . .
Lists of cited by and citing cases may be incomplete.

Insurance, Transport

Updated: 02 May 2022; Ref: scu.286416

Stephanos Xenos And Another v Wickham, Chairman Of The Victoria Fire And Marine Insurance Company: 18 Apr 1863

Citations:

[1863] EngR 411, (1863) 14 CB NS 435, (1863) 143 ER 515

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoXenos v Wickham 1862
. .
See AlsoXenos v Wickham 12-Jul-1862
. .

Cited by:

See AlsoXenos v Wickham HL 1866
Delivery of document in Escrow
Blackburn J said that a deed is delivered ‘as soon as there are acts or words sufficient to [show] that it is intended by the party to be executed as his deed presently binding on him.’
Lord Cranworth said: ‘The maker (of a deed) may so . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 02 May 2022; Ref: scu.283066

Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others (No. 2): ComC 23 Apr 1997

ComC Lloyd’s Litigation – Misrepresentation, fraudulent – Rescission, restitutio in integrum – Rescission, effect on third parties’ rights – Anti-set-off clauses, counterclaim for fraud – Pay now, sue later clauses, counterclaim for fraud – Lloyd’s, membership, rescission – Misrepresentation Act 1967, Section 3, meaning – Stay of Execution, contractually excluded

Judges:

Colman J

Citations:

[1997] CLC 1012, [1997] 6 Re L.R. 214

Statutes:

Misrepresentation Act 1967 3

Jurisdiction:

England and Wales

Citing:

See AlsoSociety of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others ComC 20-Feb-1997
ComC Lloyd’s Litigation – issues relating to recovery from names.
Held: A name at Lloyd’s grants a power of attorney to the underwriting agent to execute that power which is irrevocable. . .

Cited by:

Appeal fromSociety of Lloyd’s v Leighs; Lyon and Wilkinson and Canadian Names Intervenors CA 31-Jul-1997
. .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 30 April 2022; Ref: scu.220772

Jason v Batten (1930) Ltd: 1969

The plaintiff suffered a coronary thrombosis partly as the result of an accident caused by the defendant’s negligence and partly as a result of a pre-existing medical condition. He was a market trader, the one man in a one-man business, a limited company. But he did not have the beneficial ownership of all the shares in that company. Fifty per cent of those shares were held in trust for his children. ‘The form in which he took the profits was by way of director’s fees which were voted to him annually, but the amount so voted was decided by him, in consultation with his accountant, and was quite properly influenced by tax considerations’
Held: The true measure of his loss was the reduction in the net profit of the company caused by his injuries, and was not restricted to 50% of those profits. The insured

Judges:

Fisher J

Citations:

[1969] 1 Lloyds Rep 281

Jurisdiction:

England and Wales

Cited by:

CitedBlackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
Lists of cited by and citing cases may be incomplete.

Insurance, Damages

Updated: 30 April 2022; Ref: scu.219698

Rees and Another v Mabco (102) Ltd: CA 11 Dec 1998

Insurers declined to represent an insured facing a claim for damages for secondary liability for asbestos injury. The insured losing by default, the insurers then sought to be joined to defend the action, but still showed no good defence and were refused.
Held: Where an underwriter could demonstrate that there was a defence which carried a real prospect of success which had not been run by the assured, the discretion to permit joinder was available despite the fact that a default judgment had already been obtained.

Citations:

Gazette 27-Jan-1999

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

CitedHumber Work Boats Ltd v ‘Selby Paradigm’, Owners of Mv and others AdCt 23-Jul-2004
The barge had become holed when run aground and then repaired. The repair was faulty, and it sank. The insurers rejected the claim saying that the owners had failed to disclose a report showing areas of thinning of the hull. The underwriters sought . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 28 April 2022; Ref: scu.85933

Napier and Ettrick v R F Kershaw: CA 9 Sep 1992

Money held by solicitors for names was subject to subrogation for insurers.

Citations:

Gazette 09-Sep-1992

Jurisdiction:

England and Wales

Citing:

Appealed toLord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd HL 3-Mar-1993
Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in . .

Cited by:

Appeal fromLord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd HL 3-Mar-1993
Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in . .
Lists of cited by and citing cases may be incomplete.

Insurance, Legal Professions

Updated: 28 April 2022; Ref: scu.84168

Andersen v Marten: HL 3 Jul 1908

A ship was insured against perils of the sea under a time policy for total loss only, and ‘warranted free from capture, seizure, detention, and the consequences of hostilities.’ She carried contraband of war and was seized by a belligerent cruiser. While under control of the captors she ran aground and became a total loss, partly in consequence of damage which she had sustained by perils of the sea before capture. After the ship’s total loss she was condemned by the belligerent prize-court.
Held that upon the date of the capture there was a total loss by capture which the policy did not cover.

Judges:

Lord Chancellor (Loreburn), Earl Of Halsbury, Lords Ashbourne and Robertson

Citations:

[1908] UKHL 693, 46 SLR 693

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Transport

Updated: 26 April 2022; Ref: scu.621515

British Equitable Assurance Co v Baily: HL 15 Dec 1905

The deed of settlement of an insurance company founded in 1854 provided that its profits were to be divided as directed by its bye-laws, and that its bye-laws could be altered by other byelaws.
In 1886 the bye-laws provided that the whole profits made in the mutual branch were to be divided among the policy-holders in that branch. In that year the company issued to the respondent a policy entitling him to pounds 400 on death, and ‘all such other sums, if any, as the said company by their directors may have ordered to he added to such amount by way of bonus or otherwise according to their practice for the time.’ There was nothing further in the policy or the proposal which could be construed into a contract by the assurance company to pay anything beyond the pounds 400, and the respondent’s proposal for insurance was made on a form in which he expressly agreed to ‘conform to and abide by the deed of settlement and bye-laws, rules, and regulations of the company in all respects.’ The respondent, however, had taken his policy relying upon a prospectus issued by the company, which stated:-‘The entire profits made by the company in the mutual department, after deducting the expenses, are divided among the policy-holders without any deduction for a reserve fund.’ In 1902 the assurance company proposed under the Companies Act 1890 to alter its constitution by becoming registered as a company with limited liability, with a memorandum and articles of association which provided that 5 per cent. of the profits of the mutual department were to be carried to a reserve fund. The proposed change was perfectly competent, looking to the constitution of the company as set forth in the original deed of settlement.
Held that the company had not contracted with the respondent that the whole of the profits of the mutual department should be divided among the policy–holders in that department. Judgment of Court of Appeal reversed.

Judges:

Lords Macnaghten, Robertson, and Lindley

Citations:

[1905] UKHL 578

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insurance

Updated: 26 April 2022; Ref: scu.621196

Jureidini v National British and Irish Millers’ Insurance Co, Ltd: HL 15 Dec 1914

An insurance company repudiating liability under a contract of insurance on the ground of fraud cannot claim that action is barred by the non-fulfilment of a condition-precedent to the contract.
Decision of Court of Appeal reversed.

Judges:

Lord Chancellor(Viscount Haldane), Lords Dunedin, Atkinson, Parker, and Parmoor

Citations:

[1914] UKHL 907, 52 SLR 907

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 26 April 2022; Ref: scu.620735

Stott (Baltic) Steamers Line v Marten and Others: HL 5 Nov 1915

A marine insurance policy covered ‘perils of the seas,’ ‘in port and at sea, in docks and graving docks, and on ways, gridirons, and pontoons, at all times, in all places, and on all occasions.’ Clause 7 provided – ‘This insurance also specially to cover . . loss of or damage to hull or machinery through the negligence of the master, mariners, engineers, or pilots, or through explosions, bursting of boilers, breakage of shafts, or through any defect in the machinery or hull.’
The pin of a shackle broke whilst a boiler was being lifted into the hold and damaged the hull. The owners claimed under the policy.
Held that the damage was not caused by a peril of the seas or ejusdem generis, and that the Institute time clauses were not intended to extend the scope of the risks insured against.

Judges:

Viscount Haldane, Lords Dunedin and Atkinson

Citations:

[1915] UKHL 784,
[New search] [Printable PDF version] [Help]

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Insurance

Updated: 26 April 2022; Ref: scu.620704

Haberdashers’ Aske’s Federation Trust Ltd v Lakehouse Contracts Ltd and Others: TCC 19 Mar 2018

Proper construction of insurance provisions arising out of project-wide cover for a development that consisted of extension and other works to a school in Lewisham.

Citations:

[2018] EWHC 558 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Insurance

Updated: 25 April 2022; Ref: scu.620114

Cleaver v Mutual Reserve Fund Life Association: CA 1892

The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a criminal to claim any benefit by virtue of his crime.’
Held: The trust for the wife failed, because she had murdered her husband, but that the policy still was an asset of his estate, and the company had to pay the executors.
Fry LJ said: ‘The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud it seems impossible to suppose that it can arise from felony or misdemeanour . . This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.’ and ‘In the construction of Acts of Parliament . . general words which might include cases obnoxious to this principle (of public policy) must be read and construed subject to it.’

Judges:

Fry LJ

Citations:

[1892] 1 QB 147, 1891 4 All ER 335, 61 LJQB 128, 65 LT 220

Statutes:

Married Women’s Property Act 1882 11

Jurisdiction:

England and Wales

Cited by:

AppliedDavitt v Titcumb ChD 1989
The defendant bought a house in joint names with the deceased, but was subsequently convicted of her murder. The house was purchased with the assistance of an endowment life policy in their joint names. Whilst he was imprisoned, the policy was used . .
CitedDunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
CitedTroja v Troja 1994
(New South Wales) The court explained the application of the forfeiture rules in cases involving murder. Historically: ‘In a time of attainder, forfeiture, and common exaction of the death penalty following conviction for murder, the niceties of the . .
CitedJ v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
CitedBeresford 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 . .
CitedCommissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
CitedSecretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
CitedChallen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Insurance, Wills and Probate

Leading Case

Updated: 24 April 2022; Ref: scu.185187

Kaltenbach v Mackenzie: CA 1878

The court described the origin of the necessity of giving a notice of abandonment in a shipping insurance claim and explained its function.
Brett LJ said: ‘This case raises the questions of abandonment and notice of abandonment on a policy of marine insurance. Before I enter upon the merits of the present case I think it desirable to state my view of the law.
I agree that there is a distinction between abandonment and notice of abandonment, and I concur in what has been said by Lord Blackburn, that abandonment is not peculiar to policies of marine insurance; abandonment is part of every contract of indemnity. Whenever, therefore, there is a contract of indemnity and a claim under it for an absolute indemnity, there must be an abandonment on the part of the person claiming indemnity of all his right in respect of that for which he receives indemnity. The doctrine of abandonment in cases of marine insurance arises where the assured claims for a total loss. There are two kinds of total loss; one which is called an actual total loss, another which in legal language is called a constructive total loss; but in both the assured claims as for a total loss. Abandonment, however, is applicable to the claim, whether it be for an actual total loss or for a constructive total loss. If there is anything to abandon, abandonment must take place; as, for instance, when the loss is an actual total loss, and that which remains of a ship is what has been called a congeries of planks, there must be an abandonment of the wreck. Or where goods have been totally lost, as in the case of Roux v. Salvador, but something has been produced by the loss, which would not be the goods themselves, if it were of any value at all, it must be abandoned. But that abandonment takes place at the time of the settlement of the claim; it need not take place before.
and
With regard to the notice of abandonment, ‘I am not aware that in any contract of indemnity, except in the case of contracts of marine insurance, a notice of abandonment is required. In the case of marine insurance where the loss is an actual total loss, no notice of abandonment is necessary; but in the case of a constructive total loss it is necessary, unless it be excused. How, then, did it arise that a notice of abandonment was imported into a contract of marine insurance? Some judges have said it is a necessary equity that the insurer, in the case of a constructive total loss, should have the option of being able to take such steps as he may think best for the preservation of the thing abandoned from further deterioration. I doubt if that is the origin of the necessity of giving a notice of abandonment. It seems to me to have been introduced into contracts of marine insurance – as many other stipulations have been introduced – by the consent of shipowner and underwriter, and so to have become part of the contract, and a condition precedent to the validity of a claim for a constructive total loss. The reason why it was introduced by the shipowner and underwriter is on account of the peculiarity of marine losses. These losses do not occur under the immediate notice of all the parties concerned. A loss may occur in any part of the world. It may occur under such circumstances that the underwriter can have no opportunity of ascertaining whether the information he received from the assured is correct or incorrect. The assured, if not present, would receive notice of the disaster from his agent, the master of the ship. The underwriter in general can receive no notice of what has occurred, unless from the assured, who is the owner of the ship or the owner of the goods, and there would therefore be great danger if the owner of a ship or of goods – that is the assured – might take any time that he pleased to consider whether he would claim as for a constructive total loss or not – there would be great danger that he would be taking time to consider what the state of the market might be, or many other circumstances, and would throw upon the underwriter a loss if the market were unfavourable, or take to himself the advantage if the market were favourable. These are the reasons why I think the assured and the underwriters came to the conclusion that it should be a part of the contract and a condition precedent that, where the claim is for a constructive total loss, there must be notice of abandonment, unless there were circumstances which excused it.’
and ‘Notice of abandonment, therefore, being a part of the contract, questions arose as to the time when that notice should be given. The first question which arose was whether the notice must be given at the first moment that the assured heard of the loss, or at some subsequent period. It was, however, decided that it is not at the moment of the first hearing of the loss notice of abandonment must be given, but that the assured must have a reasonable time to ascertain the nature of the loss with which he is made acquainted; if he hears merely that his ship is damaged, that may not be enough to enable him to decide whether he ought to abandon or not; he must have certain and accurate information as to the nature of the damage. Now, sometimes the information which he receives discloses at once the imminent danger of the subject-matter of insurance becoming and continuing a total loss; as, for instance, if he hears his ship is captured in time of war, it must be obvious to everybody, unless the ship is re-captured, it would be a total loss; or if he hears that the ship is stranded, and her back is broken, although she retains her character as a ship, if he gets information upon which any reasonable man must conclude that there is very imminent danger of her being lost, the moment he gets that information he must immediately give notice of abandonment. The law that has been laid down is, that immediately the assured has reliable information of such damage to the subject-matter of insurance as that there is imminent danger of its becoming a total loss, then he must at once, unless there be some reason to the contrary, give notice of abandonment; but if the information which he first receives is not sufficient to enable him to say whether there is that imminent danger, then he has a reasonable time to acquire full information as to the state and nature of the damage done to the ship.
and ‘But then there arose another question. Ships, or goods, or the subject-matters of marine insurance, are liable to danger at various parts of the globe, where neither the assured nor the underwriter is present; and upon the emergency the master of the ship being there alone, must act. Now, under those circumstances, masters have often sold either ship or goods; and masters have had to consider whether they would sell the ship or goods even in cases where such ship or goods are not insured. The general rule with regard to the propriety of a master selling the ship or the goods, is that he has no right to sell either the ship or the goods without the consent of the owner, but if necessity arises the master becomes what is called, from the necessity of the thing, the agent to bind his owner by a sale, or to bind the owner of goods by a sale. Now, the rule I should say from the necessity of things, at all events from the justice of things, is this, that if the circumstances are such that any reasonable person having authority from the owner would sell, then the master is entitled to sell, although he has not such authority. The question, I think, as between the person to whom a master sells and the owner of the property, is whether the circumstances were those which would have caused a reasonable owner, had he been present, to sell. If that state of things exists, the master has authority to sell, and his act is binding upon the owner of the ship or goods. Where, therefore, there has been a constructive total loss of either ship or goods, circumstances may have arisen which would justify the master in selling, or they may not; there may be a constructive total loss without any sale, and there may also be a constructive total loss accompanied by a sale. If the first information which the assured,, not being present, has of the damage which has occurred to his ship, or being the owner of goods of the damage which has occurred to his goods, although they were not an actual total loss by reason of the perils of the seas, is accompanied also by information that the master has sold, and if the circumstances of that sale were justifiable, so that the property passed to the vendee, under those circumstances that is the time when, if at all, the assured would be bound to give notice of abandonment; but in others that doctrine seems to be questioned. In Rankin v. Potter the law was established that where at the time when the assured receives information which would otherwise oblige him to give notice of abandonment, at the same time he hears that the subject-matter of the insurance has been sold so as to pass the property away, inasmuch as there was nothing of the subject-matter of the insurance which he could abandon, notice of abandonment was not necessary. No doubt the reason given for this was that notice at that time and under such circumstances would be a mere idle ceremony; it could be of no use. That was the point decided in Rankin v. Potter. In those particular circumstances it was held that notice of abandonment need not be given because there was nothing to abandon. That in one sense is true; but if goods had been sold it is obvious there must be something to abandon, that is the proceeds of the sale; the money which is the proceeds of the sale, when the insurance is settled, is abandoned; but where there is nothing of the subject-matter of insurance to abandon, there is no ship to abandon, there are no materials of the ship to abandon, there are no goods to abandon, notice of abandonment under those circumstances was said to be futile. But Rankin v. Potter went no further; it did not decide – because the point was not raised – that if, at the time when the assured had to make up his mind and when otherwise he ought to abandon, there was no sale of the subject-matter of the insurance, the assured would be excused from giving notice of abandonment if he was able to shew that, had he given such notice, in the result it would have turned out to be of no use. It was argued before us that the necessary inference to be drawn from Rankin v. Potter was, although there had been no sale of the subject-matter of the insurance when information of the disaster was received by the assured, yet if he could shew that before any notice of abandonment could reach the underwrite and before the underwriters orders could reach the assured a sale could take place, so that had the assured given notice of abandonment such notice would have been of no use to the underwriter, the assured would be excused from giving it. That point, however, is not raised here, and therefore it becomes unnecessary to decide it. I am not prepared to say that if it could be shewn that the subject-matter of insurance, at the time when the assured has information upon which otherwise he would be bound to act, is in such a condition that it would absolutely perish and disappear, before notice could be received or any answer returned, that that might not excuse the assured from giving notice of abandonment, but I am prepared to say that nothing short of that would excuse him; and although I do not say what I have stated would excuse him, I am not prepared to say it would not; that is the limit to which I think the doctrine could be carried, and it seems to me that to go further than that would let in the danger to provide against which the doctrine of notice of abandonment was introduced into the contract and made a part of the contract’.
Cotton LJ: ‘I give no opinion on the question which arises when the state of the thing insured is such that before the communication could have reached the underwriters it must, so far as human probability goes, have ceased to be in specie.’

Judges:

Brett LJ, Cotton LJ

Citations:

[1878] 3 CPD 467

Jurisdiction:

England and Wales

Cited by:

CitedKastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 20 April 2022; Ref: scu.251808

Munro Brice and Co v War Risks Association: 1918

Bailhache J discussed the principle that if there is a qualification of the general risk which covers the policy’s whole scope (so that there is no unqualified risk left), the burden is on the insured to prove facts which bring the case within the general risk as qualified: ‘When the promise is qualified by exceptions, the question whether the plaintiff need prove facts which negative their application does not depend upon whether the exceptions are to be found in a separate clause or not. The question depends upon an entirely different consideration, namely, whether the exception is as wide as the promise, and thus qualifies the whole of the promise, or whether it merely excludes from the operation of the promise particular classes of cases which but for the exception would fall within it, leaving some part of the general scope of the promise unqualified. If so, it is sufficient for the plaintiff to bring himself prima facie within the terms of the promise, leaving it to the defendant to prove that, although prima facie within its terms, the plaintiff”s case is in fact within the excluded exceptional class . .
When a promise is qualified by an exception which covers the whole scope of the promise, a plaintiff cannot make out a prima facie case unless he brings himself within the promise as qualified. There is ex hypothesi no unqualified part of the promise for the sole of his foot to stand upon. . .
Whether a promise is a promise with exceptions or whether it is a qualified promise is in every case a question of construction of the instrument as a whole.’

Judges:

Bailhache J

Citations:

[1918] 2 KB 78

Jurisdiction:

England and Wales

Cited by:

CitedChannon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 13 April 2022; Ref: scu.572352

Daly v Lime Street Underwriting Agencies: 1987

A name at Lloyds confers an irrevocable power of attorney on his managing agent to underwrite business.

Citations:

[1987] 2 FTLR 277

Cited by:

CitedBailey 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: 12 April 2022; Ref: scu.568650

Wasa Liv Omsesidigt v Sweden: ECHR 14 Dec 1988

Commission

Judges:

CA Norgaard P

Citations:

13013/87

Jurisdiction:

Human Rights

Cited by:

CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insurance

Updated: 12 April 2022; Ref: scu.448067

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 policy.

Judges:

Slade LJ

Citations:

[1987] 1 Lloyds Rep 32

Jurisdiction:

England and Wales

Citing:

Dicta appliedWayne 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 . .
Appeal fromJ J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd ‘The Miss Jay Jay’ 1985
Mustill J considered liability under a marine insurance where damage was suffered when the sea state was within what might reasonably be anticipated: ‘The cases make it quite plain that if the action of the wind or sea is the immediate cause of the . .

Cited by:

MentionedKR 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 . .
CitedGlobal Process Systems Inc and Another v Berhad CA 17-Dec-2009
An oil rig suffered major damage in transit in rough seas. The insurers repudiated liability saying that the damages was the result of a natural vice rather than perils at sea.
Held: The fact that the sea conditions were within the range of . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 12 April 2022; Ref: scu.245856

Australia and New Zealand Bank Limited v Colonial and Eagle Wharves Limited: 1960

A claim was made under an all risks insurance policy on goods taken out by a firm of wharfingers. There was an excess of andpound;100 each and every claim. During the currency of the policy the wharfingers misdelivered a total of 246 bales on 30 separate occasions.
Held: The word ‘claim’ in the excess clause meant ‘the occurrence of a state of facts which justifies a claim on underwriters. It did not refer to the assertion of a claim on underwriters’ ‘It seems to me quite absurd that the wharfingers’ right of recovery should be determined either by the form of the Bank’s letter of claim against the wharfingers or the form of the wharfingers’ claim against the underwriters. In other words, in my judgment, the operation of the Excess Clause is determined by the facts which give rise to the claim and not by the form in which the claim is asserted.’ There were 30 separate claims covering 30 separate misdeliveries, and that the deductible of andpound;100 applied to each claim.

Judges:

McNair J

Citations:

[1960] 2 Lloyds Rep 241

Jurisdiction:

England and Wales

Cited by:

CitedHaydon and Others v Lo and Lo (A Firm) and Another PC 23-Jan-1997
(Hong Kong) A claim was made under a professional indemnity policy. The solicitors’ clerk had through a series of frauds embezzled some HK$50m. The insurers said that this was one claim, and that their liability was limited to the maximum under the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 12 April 2022; Ref: scu.242423

Fraser v B N Furman (Productions) Ltd: CA 1967

The employer’s liability policy contained a condition precedent that the insured should take reasonable precautions to prevent accidents and disease. The company sought to rely upon the clause to avoid liability.
Held: ”Reasonable’ does not mean reasonable as between the employer and the employee. It means reasonable as between the insured and the insurer having regard to the commercial purpose of the contract, which is inter alia to indemnify the insured against liability for his (the insured’s) personal negligence. That, too, is established by the case which I have cited. Obviously, the condition cannot mean that the insured must take measures to avert dangers which he does not himself foresee, although the hypothetical reasonably careful employer would foresee them. That would be repugnant to the commercial purpose of the contract, for failure to foresee dangers is one of the commonest grounds of liability in negligence. That, too, is established by the case which I have cited. Obviously, the condition cannot mean that the insured must take measures to avert dangers which he does not himself foresee, although the hypothetical reasonably careful employer would foresee them. That would be repugnant to the commercial purpose of the contract, for failure to foresee dangers is one of the commonest grounds of liability in negligence. What, in my view, is ‘reasonable’ as between the insured and the insurer, without being repugnant to the commercial object of the contract, is that the insured should not deliberately court a danger, the existence of which he recognises, by refraining from taking any measures to avert it.’

Judges:

Diplock LJ

Citations:

[1967] 1 WLR 898

Jurisdiction:

England and Wales

Cited by:

CitedBlackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
CitedChannon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 12 April 2022; Ref: scu.219696

AXA Reinsurance Plc v Field: ComC 27 Jul 1995

cw Insurance – agreement to limit liability – claims arising from one cause – personal indemnity insurance

Judges:

Phillips J

Citations:

Unreported, 27 July 1995

Jurisdiction:

England and Wales

Citing:

Confirmed on appeal toAXA Reinsurance UK Plc v Field CA 10-Oct-1995
Liability limitation for insurers also binds re-insurers of same contract. . .

Cited by:

Confirmed on appeal fromAXA Reinsurance UK Plc v Field CA 10-Oct-1995
Liability limitation for insurers also binds re-insurers of same contract. . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 12 April 2022; Ref: scu.182578