References: [2002] 2 Lloyd’s Rep 581
Coram: Lord Phillips of Worth Matravers MR
Ratio: The court set out the elements to be satisfied before ordering a rectification of a commercial contract, in particular, the need for an antecedent agreement with outward expression of a common intent, and convincing evidence sufficient to discharge the burden of proving a common mistake in translating the previous agreement into contractual form.
Held: Those negotiating the contract each assumed that their agreement on a certain matter would have a certain effect, but they had never discussed and agreed upon that effect. There was not enough for rectification: ‘Mr Lee and Mr Mitchell plainly agreed that the Oct. 3 addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr. Mitchell assumed that it would relieve the insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr. Lee had a similar belief. If they both shared that belief this would not establish a claim for rectification of the policy.’ and ‘Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover.’
Jurisdiction: England and Wales
This case cites:
- Cited – Wayne Tank and Pump Company Ltd v Employers Liability Assurance Corporation Ltd CA ([1974] 1 QB 57, [1973] 2 Lloyd’s Rep 237)
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 . .
(This list may be incomplete)
This case is cited by:
- Cited – If P and C Insurance Limited (Publ.) v Silversea Cruises Limited, Silver Cloud Shipping Company Sa, Silver Wind Shipping Company Sa, Silversea New Build One Limited, Silversea New Build Two Limited&Quot;the Silver Cloud&Quot; CA (Bailii, [2004] EWCA Civ 769, Times 13-Aug-04)
The shipping company was insured against loss of business following Acts of war. It sought to claim after the attack on America in September 2001.
Held: The policy had a limitation which applied ‘in the annual aggregate and in all’ which . .
(This list may be incomplete)
Last Update: 15 March 2019
Ref: 200213