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This Section of the website contains Case Notes on the following cases. To access the Case Note, click on the name of the case.

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Pratt v Aigaion Insurance Company SA (The "Resolute")
English Court of Appeal: Sir Anthony Clarke MR, Maurice Kay and Stanley Burnton LLJ: [2008] EWCA Civ 1314: 27 November 2008
MARINE INSURANCE: POLICY WORDING: CONDITIONS: WARRANTY: PROPER CONSTRUCTION OF CLAUSE: "OWNER AND/OR OWNER’S EXPERIENCED SKIPPER ON BOARD AND IN CHARGE AT ALL TIMES AND ONE EXPERIENCED CREW MEMBER"

Wasa International Insurance Company Ltd and AGF Insurance Ltd v Lexington Insurance Company
English Court of Appeal: Pill, Sedley and Longmore, LJJ: [2008] EWCA Civ 150: 29 February 2008
REINSURANCE: TERMS OF REINSURANCE SUBSTANTIALLY SIMILAR TO THOSE OF PRIMARY INSURANCE: REINSURANCE TO COVER LOSSES OCCURRING DURING A DEFINED THREE YEAR PERIOD: PRIMARY INSURER HELD LIABLE FOR LOSS AND DAMAGE OCCURRING OUTSIDE AS WELL AS WITHIN THE PERIOD OF THE REINSURANCE: WHETHER "FOLLOW THE SETTLEMENTS" CLAUSE OBLIGED REINSURERS TO PAY FOR LOSSES OCCURRING OUTSIDE THE THREE YEAR PERIOD

Pratt v Aigaion Insurance Company SA (The "Resolute")
English High Court: HHJ Mackie QC: [2008] EWHC 489 (Admlty): 14 March 2008
MARINE INSURANCE: POLICY WORDING: CONDITIONS: WARRANTY: PROPER CONSTRUCTION OF CLAUSE: "OWNER AND/OR OWNER’S EXPERIENCED SKIPPER ON BOARD AND IN CHARGE AT ALL TIMES AND ONE EXPERIENCED CREW MEMBER"

CGU Insurance Limited v AMP Financial Planning Pty Ltd
Australia: High Court of Australia: Gleeson CJ, Calliman, Crennan, Heydon, Kirby JJ.: [2007] HCA 36: 29 August 2007
Insurance: cover for civil liability claims: potential liability to investors arising out of misconduct of financial advisers for which insured responsible: Insured told to act as a prudent uninsured: Insured proposes settlement with investors without need for legal proceedings: insurer agrees "in principle": insured settles with investors without confirmation from insurer that it accepts liability for the payments: Whether insurer liable to indemnify the insured in respect of reasonable settlement amounts: Whether settlement amounts were reasonable: – Relevance of the requirement to act with utmost good faith in s 13 of the Insurance Contracts Act 1984 (Cth).
Insurance: Requirement to act with utmost good faith in s 13 of the Insurance Contracts Act 1984 (Cth): Meaning of utmost good faith: Whether lack of utmost good faith means only dishonesty: Whether utmost good faith may require insurer to act with due regard to insured’s legitimate interests of as well as its own: Whether insurer’s delay in accepting or rejecting liability amounted to a lack of utmost good faith: Relevance of reciprocity: Whether insurer could invoke the insured’s lack of utmost good faith if insurer had failed to act with utmost good faith: Whether insured’s lack of diligence and acting for its own interests amounted to lack of utmost good faith.
Estoppel: Estoppel by convention: Whether insurer represented that insured would not be required to prove its liability to the investors: Whether insured relied on the representation to its detriment

HIH Casualty & General Insurance Limited v JLT Risk Solutions Limited
English Court of Appeal: Auld, May & Longmore LJJ: [2007] EWCA Civ 710: 12 July 2007
Available on BAILII @ http://www.bailii.org/ew/cases/EWCA/Civ/2007/710.html
INSURANCE AND REINSURANCE: BACK-TO-BACK POLICIES: BROKERS’ DUTIES TO INSURED AND REINSURED: POST-PLACEMENT DUTY TO INFORM REINSURED OF POTENTIAL COVERAGE ISSUES UNDER ORIGINAL POLICY: CAUSATION OF LOSS

Wasa International Insurance Company Ltd and AGF Insurance Ltd v Lexington Insurance Company
English High Court: Commercial Court: Simon J.: [2007] EWHC 896 (Comm): 25 April 2007
REINSURANCE: "FOLLOW THE SETTLEMENTS" CLAUSE: LIABILITY UNDER THE PRIMARY INSURANCE MORE EXTENSIVE THAN THAT UNDER THE REINSURANCE: WHETHER LEGAL COSTS RECOVERABLE FROM REINSURERS

Marina Offshore Pte Ltd v. China Insurance Co (Singapore) Pte Ltd and Another, The "Marina Isis"
Singapore Court of Appeal: Andrew Phang Boon Leong JA, Chan Sek Keong CJ, Judith Prakash J: [2006] SGCA 28: 11 September 2006
MARINE INSURANCE: TOTAL LOSS OF VESSEL: BREACH OF WARRANTY: WHETHER WARRANTY INCLUDED THE ROUTE THE VESSEL SHOULD FOLLOW: WHETHER POLICY WAS TIME POLICY OR MIXED/HYBRID POLICY: WHETHER WARRANTY OF SEAWORTHINESS UNDER VOYAGE POLICY APPLIED, S.39(1) OF MARINE INSURANCE ACT: WHETHER SHIP SENT TO SEA UNSEAWORTHY WITH THE PRIVITY OF THE ASSURED UNDER S.39(5) OF THE ACT

Hargreaves (and other Lloyd’s Syndicates) v. Taian Insurance Company Limited
High Court of Hong Kong, Court of First Instance: Stone J: Commercial Action No. 27 of 2005: [2006] HKCFI 481: 6 June 2006
INSURANCE/REINSURANCE: SERVICE OF PROCEEDINGS OUT OF THE JURISDICTION: SETTING ASIDE: JURISDICTION : "RE-REINSURANCE" VERSUS "CO-INSURANCE": FORUM NON CONVENIENS: APPLICABLE LAW

E.L.A.Z. International Co. v. Hong Kong & Shanghai Insurance Company Limited
High Court of Hong Kong, Court of First Instance: Stone J: Commercial Action No. 4862 of 2001: [2006] HKCFI 406
MARINE INSURANCE: LOSS OF GOODS: CLAIMS: INSTITUTE CARGO CLAUSES (A): WHETHER LOSS EXCLUDED UNDER CLAUSE 8.1.2.11 AS "STORAGE OTHER THAN IN THE ORDINARY COURSE OF TRANSIT": WHETHER TRANSHIPMENT TO ROAD TRAILER A BREACH OF THE "FULL CONTAINER LOAD" WARRANTY

AIG Europe (Ireland) Ltd v Faraday Capital Ltd
English Commercial Court: Morison J: [2006] EWHC 2707 (Comm): 31 October 2006
REINSURANCE: DIRECTORS AND OFFICERS INSURANCE POLICY: NOTIFICATION OF LOSS CLAUSE/CLAIMS CO-OPERATION CLAUSE: CONDITION PRECEDENT: PROPER CONSTRUCTION OF CLAUSE

Talbot Underwriting Ltd v Nausch Hogan & Murray Inc (The "Jascon 5")
English Court of Appeal: Waller, Moore-Bick and Richards LJJ: [2006] EWCA Civ 889: 29 June 2006
BUILDERS’ ALL RISKS (MARINE) INSURANCE SLIP POLICY: LIABILITY OF BROKERS FOR FAILURE TO TAKE OUT INSURANCE COVER AS PER INSTRUCTIONS: PROPER CONSTRUCTION OF POLICY: CO-INSURED: UNDISCLOSED PRINCIPAL: MATERIAL NON-DISCLOSURE: EFFECT ON SUBROGATION RIGHTS: LOSSES

Shinedean Ltd v Alldown Demolition (London) Ltd and Others
English Court of Appeal: Sir Anthony Clarke MR, May and Gage LJJ: [2006] EWCA Civ 939: 20 June 2006
PUBLIC LIABILITY AND CONTRACTORS’ ALL RISKS INSURANCE POLICY: LIABILITY TO INDEMNIFY: CLAIMS CONTROL CLAUSE: CONDITION PRECEDENT: OBLIGATION TO PROVIDE "ALL NECESSARY INFORMATION AND ASSISTANCE": COMPLIANCE WITH CLAUSE WITHIN AN IMPLIED "REASONABLE TIME": RELEVANCE OF "PREJUDICE" TO INSURER AS A FACTOR IN DETERMINING "A REASONABLE TIME"

R+V Verischerung AG v Risk Insurance and Reinsurance Solutions SA
English Commercial Court: Gloster J, DBE: [2006] EWHC 42 (Comm): 27 January 2006
Colin Edelman QC and Charles Dougherty (instructed by LeBoeuf Lamb Greene & MacRae) for the Claimant, R+V
Hugo Page QC (instructed by Penningtons) for the Defendant, Risk Insurance
REINSURANCE: RECOVERABLE HEADS OF DAMAGE: STANDARD FOR PROOF OF LOSS: INTERNAL MANAGEMENT AND STAFF TIME EXPENSES AND OVERHEADS EXPENDED IN DEALING WITH CONSPIRACY

Stemson v AMP General Insurance (NZ) Ltd
Privy Council: Lords Nicholls, Hope, Scott, Mance and Baroness Hale: [2006] UKPC 30: 21 June 2006
INSURANCE: LOSS BY FIRE: FINDING OF ARSON COMMITTED BY INSURED: PRACTICE FOR REVIEW BY THE PRIVY COUNCIL OF CONCURRENT FINDINGS OF FACT FROM LOWER COURTS: FRAUDULENT MEANS AND DEVICES: EFFECT OF CORRECTION TO KNOWINGLY FALSE STATEMENT

Patrick v Royal London Mutual Insurance Society Ltd
English Court of Appeal: Tuckey, Thomas and Hallett LJJ.: [2006] EWCA Civ. 421: 30 March 2006
HOUSEHOLDER’S INSURANCE: COVER FOR LEGAL LIABILITY FOR DAMAGE TO THIRD PARTY PROPERTY: EXCLUSION OF CLAIMS ARISING FROM "WILFUL ACTS": MEANING OF "WILFUL": DELIBERATE ACT: WHETHER INTENTION TO CAUSE DAMAGE OF THE TYPE OCCASIONED REQUIRED: WHETHER RECKLESSNESS SUFFICIENT

Enterprise Oil Ltd v Strand Insurance Co Ltd
English High Court: Queen’s Bench Division: Aikens, J.: [2006] EWHC 58 (Comm): 26 January 2006
INSURANCE POLICIES: LIABILITY INSURANCE: TORTIOUS INTERFERENCE WITH CONTRACT: RIGHT OF INDEMNITY IN RESPECT OF SETTLEMENT OF LIABILITIES TO THIRD PARTY: WHETHER LIABILITY MUST BE ACTUAL OR ARGUABLE ONLY: WHETHER INSURED WOULD HAVE BEEN FOUND LIABLE BY FOREIGN COURT: APPROACH TO DECISIONS OF FOREIGN COURTS: (OBITER) RIGHT OF INSURED TO BRING EVIDENCE TO ASCERTAIN HIS INSURED LIABILITY UNDER A GLOBAL SETTLEMENT

North Star Shipping Ltd and Others v Sphere Drake Insurance Plc & Others
English Court of Appeal: Waller, Longmore and Lloyd LJJ.: [2006] EWCA Civ 378: 7 April 2006
MARINE INSURANCE: WAR RISKS INSURANCE: NON-DISCLOSURE OF ALLEGATIONS OF FRAUD AGAINST INSURED: ALLEGATIONS EVENTUALLY PROVE FALSE: WHETHER NON-DISCLOSURE AT TIME OF PLACEMENT MATERIAL: WHETHER DIFFERENT STANDARDS APPLICABLE AS BETWEEN WAR RISK AND HULL INSURANCE

Sun Alliance & London Insurance plc v PT Asuransri Dayin Mitra TBK (The "No 1 Dae Bu")
English Commercial Court: Langley J: [2006] EWHC 812 (Comm): 11 April 2006
Julian Kenny (instructed by Hill Taylor Dickinson) for the Defendant/Part 20 Claimant, PT Asuransri Dayin Mitra TBK
The Part 20 Defendant, PT Pelumin, did not appear and was not represented
MARINE INSURANCE: NEGATIVE DECLARATORY RELIEF OF NON-LIABILITY TO INDEMNIFY INSURED: PROPER LAW AND JURISDICTION OF CONTRACT: BREACH OF WARRANTY: SCOPE OF TIME AND VOYAGE POLICY COVERAGE: VESSEL’S SEAWORTHINESS

Hawley v (1) Luminar Leisure Ltd, (2) ASE Security Services Ltd, (3) David Preston Mann (as nominated underwriter for Faraday Underwriting Ltd)
English Court of Appeal: Latham, Neuberger and Hallett LJJ. [2006] EWCA Civ 18: 24 January 2006
VICARIOUS LIABILITY: DOORMAN SUPPLIED BY SECURITY COMPANY: DOORMAN ASSAULTS VISITOR: WHETHER SECURITY COMPANY OR CLUB VICAROUSLY RESPONSIBLE FOR DOORMAN’S ACTIONS: WHICH PARTY HAD EFFECTIVE CONTROL: PUBLIC LIABILITY INSURANCE: WHETHER DELIBERATE ACT OF VIOLENCE AN "ACCIDENTAL BODILY INJURY" UNDER THE POLICY: CIVIL LIABILITY (CONTRIBUTION) ACT 1978

Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd and Commercial Union Insurance Co Ltd
English Court of Appeal: Auld, Longmore and Hallett LJJ.: [2006] EWCA Civ 50: 6 February 2006
INSURANCE: LOCAL AUTHORITIES: PUBLIC LIABILITY INSURANCE: ACCIDENTAL BODILY INJURY OR ILLNESS OCCURRING DURING CURRENCY OF POLICY: MESOTHELIOMA: WHETHER CLAIM AROSE ON FIRST EXPOSURE TO ASBESTOS FIBRES OR LATER WHEN MALIGNANCY DEVELOPED OR SYMPTOMS OF DISEASE FIRST BECAME APPARENT: LATE NOTIFICATION OF CLAIM: CONDITION PRECEDENT: WHETHER WAIVED BY INSURER

GE Frankona Reinsurance Limited v CMM Trust No 1400 The "Newfoundland Explorer"
English Admiralty Court: Gross J.: [2006] EWHC 429 (Admlty): 22 March 2006
MARINE CASUALTY (FIRE): MARINE INSURANCE: WARRANTIES: PROPER CONSTRUCTION OF TERM "WARRANTED VESSEL FULLY CREWED AT ALL TIMES"

Talbot Underwriting Ltd v Nausch Hogan & Murray
English High Court: Commercial Division: Cooke J.: 31 October 2005
INSURANCE: BUILDERS’ RISKS INSURANCE: WHETHER CONTRACTOR INCLUDED AS CO-ASSURED: CONSTRUCTION OF POLICY TERMS: WHETHER CONTRACTOR AN AFFILIATED COMPANY OR JOINT VENTURER: WHETHER CONTRACTOR AN UNDISCLOSED PRINCIPAL: INTENTION OF PLACING BROKERS: WHETHER FAILURE TO DISCLOSE UNDISCLOSED PRINCIPAL MATERIAL: WHETHER UNDERWRITERS HAD WAIVED NON-DISCLOSURE: LIABILITY OF BROKERS

Bonner and others v Cox and others
English Court of Appeal (Civ Div): Waller, Tuckey and Moses LJJ.: [2005] EWCA Civ 1512: 8 December 2005
REINSURANCE: NON-PROPORTIONAL REINSURANCE: NATURE OF DUTY OWED BY REINSURED TO REINSURERS: IMPLIED TERMS

Marina Offshore Pte Ltd v China Insurance Co (Singapore) Pte Ltd and AXA Insurance Singapore Pte Ltd
Singapore High Court: Tan Lee Meng J: [2005] SGHC 238: 30 December 2005

MarinE Insurance: Breach of Warranty as to the recommended route of the voyage: Seaworthiness of the vessel: Whether loss of the vessel caused by unseaworthiness or perils of the sea

Danepoint Ltd v Allied Underwriting Insurance Ltd
English High Court: Commercial Division:Judge Peter Coulson QC: HT-04-298: 20
October 2005
INSURANCE: CLAIMS FOR REINSTATEMENT/REPAIR AND LOSS OF RENT FOLLOWING A FIRE: WHETHER CLAIMS FRAUDULENT: WHETHER A NON-FRAUDULENT CLAIM IS TAINTED BY A FRAUDULENT CLAIM ARISING FROM THE SAME EVENT: EFFECT OF FRAUD

Bayswater Carriers Pte Ltd v. QBE Insurance (International) Pte Ltd
Singapore High Court: Belinda Ang Saw Ean J: 29 September 2005: [2005] SGHC 185
MARINE INSURANCE – INSTITUTE TIME CLAUSES (HULLS) 1.10.83 – WHETHER LOSS WAS BY PIRACY OR VIOLENT THEFT BY PERSONS FROM OUTSIDE THE TUG

Margate Theatre Royal Trust Ltd v Patrick White t/a A1 Moleing Services and AXA Insurance UK plc
English High Court – Technology & Construction Court: Judge Peter Coulson QC: [2005] EWHC 2171 (TCC): 6 October 2005
INSURANCE: THIRD PARTY LIABILITY: DESCRIPTION OF INSURED’S BUSINESS: UMBRELLA TITLE: "IN CONNECTION WITH": WHETHER DESCRIPTION INCLUDED WORK INCIDENTAL TO MAIN BUSINESS: WHETHER INCIDENTAL WORK HAD TO BE PERFORMED TOGETHER WITH MAIN BUSINESS

Shinedean Ltd v Alldown Demolition (London) Ltd (In Liquidation) and AXA Insurance UK Plc
English High Court, Technology & Construction Division: Judge Richard Havery: [2005] EWHC 2319 (TCC): 28 October 2005
INSURANCE: CLAIMS CONTROL CLAUSES: WHETHER CONDITIONS PRECEDENT TO INSURER’S LIABILITY: OBLIGATION TO PROVIDE DOCUMENTS: NO TIME LIMIT PRESCRIBED: WHETHER DOCUMENTS PROVIDED IN REASONABLE TIME: WHAT IS ‘REASONABLE’?: INTERPRETATION GENEROUS TO THE INSURED: WHETHER PREJUDICE TO INSURER A FACTOR IN REASONABLENESS

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and Others
English Court of Appeal: May, Rix LJJ: [2005] EWCA Civ 1151: 10 October 2005
NEGLIGENCE: EMPLOYER’S LIABILITY: VICARIOUS LIABILITY: WHETHER TWO EMPLOYERS VICARIOUSLY LIABLE FOR NEGLIGENCE OF SINGLE EMPLOYEE: TRANSFER OF EMPLOYMENT: RIGHT TO CONTROL EMPLOYEE’S ACTIONS: CIVIL LIABILITY (CONTRIBUTION) ACT 1978

ERC Frankona Reinsurance v American National Insurance Co
English Commercial Court: Andrew Smith J.: 6 July 2005
REINSURANCE: AVOIDANCE FOR NON-DISCLOSURE: DUTY TO DISCLOSE INFORMATION KNOWN BY AGENT: WHETHER AGENT AN "AGENT TO INSURE": WHETHER AGENT AN "AGENT TO KNOW": WHETHER INFORMATION MATERIAL: INDUCEMENT: QUALIFIED ACCEPTANCE OF RISK: MEANING OF QUALIFICATION

Folksamerica Reinsurance Co. v. Clean Water of New York, Inc.
United States: Court of Appeals for the Second Circuit: Wesley, Circuit Judge: June 30, 2005: No. 03-9124: 2005 U.S. App. LEXIS 13041: 413 F.3d 307
MARITIME JURISDICTION: CONTRACTS: INSURANCE POLICIES: LIABILITY POLICY PROVIDING SHIPREPAIRER’S LEGAL LIABILTY AND COMMERCIAL GENERAL LIABILITY COVERAGES WITHIN MARITIME JURISDICTION

Thor Navigation Inc v (1) Ingosstrakh Insurance Co Ltd (2) Schwarzmeer und Ostsee Versicherungsaktiengesellschaft
English Commercial Court: Gloster J.: [2005] EWHC 19 (Comm): 14 January 2005
INSURANCE: SHIPPING: CONSTRUCTIVE TOTAL LOSS: HULL AND MACHINERY INSURANCE POLICIES: "SUM INSURED": WHETHER POLICIES VALUED OR UNVALUED: s.27, S28 MARINE INSURANCE ACT 1906: RECTIFICATION: COMMON MISTAKE: ESTOPPEL

Tektrol Ltd v International Insurance Company of Hanover Ltd and Another
English Court of Appeal: Buxton and Carnwath LJJ. and Sir Martin Nourse: [2005] EWCA Civ 845: 21 July 2005
BUSINESS INTERRUPTION INSURANCE: ALL RISKS POLICY: LOSS OF SOURCE CODE CAUSED BY (A) EFFECT OF A COMPUTER VIRUS AND (B) THEFT OF COMPUTERS ON WHICH CODE STORED: WHETHER LOSS BY COMPUTER VIRUS EXCLUDED AS A LOSS "CAUSED DELIBERATELY BY MALICIOUS PERSONS": WHETHER LOSS BY THEFT OF COMPUTERS EXCLUDED UNDER POLICY TERMS

Aer Lingus v Gildacroft Ltd and Sentinel Lifts Ltd
English High Court: Simon J.: [2005] EWHC 1556 (QB): 24 June 2005
LIMITATION: LIMITATION ACT 1980: CONTRIBUTION: CIVIL LIABILITY (CONTRIBUTION) ACT 1978: WHETHER LIMITATION PERIOD RUNS FROM DATE OF JUDGMENT DETERMINING LIABILITY: WHETHER LIMITATION PERIOD RUNS FROM DATE ON WHICH AMOUNT OF DAMAGES FINALLY DETERMINED

Brian Warwicker Partnership v HOK International Ltd
English Court of Appeal: Sir Andrew Morritt VC, Arden and Keene LJJ.: [2005] EWCA Civ 962: 27 July 2005
CIVIL LIABILITY CONTRIBUTION ACT 1978: CLAIM FOR CONTRIBUTION: ASSESSMENT OF RESPONSIBILITY: WHETHER COURT ENTITLED TO TAKE INTO ACCOUNT FACTORS NOT STRICTLY CAUSATIVE OF THE LOSS

Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd and Commercial Union Assurance Co Ltd
English High Court (Manchester): Michael Kershaw QC: 28 May 2005
ASBESTOS: INHALATION OF FIBRES: DEVELOPMENT OF MESOTHELIOMA: PUBLIC LIABILITY INSURANCE: ACCIDENTAL BODILY INJURY OR ILLNESS OCCURRING DURING CURRENCY OF POLICY: WHEN DID ACCIDENT OCCUR: MEANING OF ‘ACCIDENT’: LATE NOTIFICATION OF CLAIM: CONDITION PRECEDENT: WHETHER LATE NOTIFICATION WAIVED: DOUBLE INSURANCE: BASIS OF CONTRIBUTION

American International Marine Agency of New York Inc and another v Dandridge
English Commercial Court: Richard Siberry QC: [2005] EWHC 829 Comm: 5 May 2005
HULL & MACHINERY INSURANCE: PARTICIPATION EVIDENCED BY BINDER: BINDER SUBJECT TO "FOLLOW THE LEADER" CLAUSE: REINSURANCE SUBJECT TO "SAME CLAUSES AND CONDITIONS OF ORIGINAL POLICY": CHANGES TO CLASSIFICATION SOCIETY AND INSURED VALUE AGREED UNDER ORIGINAL POLICY BUT NOT DISCUSSED WITH REINSURERS: TOTAL LOSS PAID BY ORIGINAL INSURERS IN THEIR PROPORTION UNDER ‘FOLLOW THE LEADER’ CLAUSE: WHETHER REINSURANCE INCLUDED ‘FOLLOW THE LEADER’ TERMS: MEANING OF ‘ORIGINAL POLICY: WHETHER ‘FOLLOW THE LEADER’ CLAUSE CAPABLE OF INCORPORATION IN REINSURANCE

Sirius International Insurance v Friends Provident Life & Pensions Ltd
English Court of Appeal: Waller and Mance LJJ., Sir William Aldous: [2005] EWCA Civ
60: 24 May 2005
PROFESSIONAL INDEMNITY INSURANCE: EXCESS LAYER: BREACH OF
NOTICE CLAUSE: WHETHER AN INNOMINATE TERM: WHETHER INSURER ENTITLED TO AVOID THE CLAIM: WHETHER PARTIAL REPUDIATION OF AN INSURANCE CONTRACT POSSIBLE: SERIOUS CONSEQUENCES: WHETHER DAMAGES AN ADEQUATE REMEDY

William Francis Rendall v Combined Insurance Company of America
English Commercial Court: Cresswell J.: [2005] EWHC 678 (Comm): 21 April 2005
INSURANCE: REINSURANCE: BUSINESS TRAVEL: ESTIMATED NUMBER OF TRAVEL DAYS: BASIS OF ESTIMATE NOT DISCLOSED: AVOIDANCE: NATURE OF REPRESENTATION: S.20 MARINE INSURANCE ACT 1906: WHETHER REPRESENTATION AS TO A MATTER OF FACT OR OF EXPECTATION AND BELIEF: WHETHER REPRESENTATION HAD TO BE BASED ON REASONABLE GROUNDS: WHETHER REPRESENTATION WAS BASED ON REASONABLE GROUNDS: WAIVER: MEANING OF "AUTHORISED BUSINESS TRIP": WHETHER INCLUDES AN EMERGENCY EVACUATION OF BUILDING

North Star Shipping Limited and Others v Sphere Drake Insurance Plc & Others
English Commercial Court: Colman J.: 22 April 2005
WAR RISKS INSURANCE: OWNERS’ COMPLICITY IN CASUALTY: NON-DISCLOSURE OF PENDING CRIMINAL AND CIVIL PROCEEDINGS, OF EXCESSIVE VALUE OF VESSEL, OF CANCELLATION OF PREVIOUS INSURANCE FOR NON-PAYMENT OF PREMIUM, OF OWNERS’ FINANCIAL DIFFICULTIES: MORAL HAZARD: MATERIALITY: INDUCEMENT

Royal & Sun Alliance Insurance Plc v Dornoch Limited & Others
English Court of Appeal: Brooke, Mance & Longmore LJJ: 10 March 2005
INSURANCE: LIABILITIES TO THIRD PARTIES: REINSURANCE: NOTIFICATION OF LOSS CLAUSE: CONDITION PRECEDENT TO REINSURERS’ LIABILITY: WHETHER "LOSS" MEANT "CLAIMED" OR "ALLEGED" LOSS: WHETHER "LOSS" MEANT "ACTUAL" LOSS: WHETHER LIABILITY FOR COSTS IS "ACTUAL LOSS": KNOWLEDGE OF LOSS

David George King v Brandywine Reinsurance Co
English Court of Appeal: Waller & Rix LJJ and Sir Martin Nourse: 10 March 2005
INSURANCE POLICIES: OIL POLLUTION: "EXXON VALDEZ": RECOVERY OF CLEAN UP COSTS INCURRED BY EXXON AFTER OIL SPILL: PROPER LAW OF PRIMARY POLICIES: WHETHER ANY DIFFERENCE IN INTERPRETATION BETWEEN ENGLISH AND NEW YORK LAW: REINSURANCE CONTRACTS : SCOPE OF COVERAGE: MEANING OF "REMOVAL OF DEBRIS": DIVISION OF RISKS BETWEEN POLICY SECTIONS: WHETHER "TRANSPORTATION ACTIVITIES" INCLUDED CARRIAGE OF OIL BY SEA: SEEPAGE AND POLLUTION EXCLUSION: MEANING OF "ON LAND"

Axa General Insurance Ltd v Clara Gottlieb and Joseph Meyer Gottlieb
English Court of Appeal: Pill, Mance and Keene, LJJ: 11 February 2005
KEY WORDS: INSURANCE: CLAIMS: FRAUDULENT BEHAVIOUR BY INSURED: COMMON LAW RULE: EFFECT ON OTHER GENUINE CLAIMS PREVIOUSLY PAID UNDER SAME POLICY: EFFECT ON PREVIOUS PAYMENTS OF GENUINE ELEMENTS OF SAME CLAIMS

Mark Whitlam v Andrew Hazel (for Lloyd's Syndicate 260 t/a KGM Motor Policies at Lloyd's)
English Court of Appeal: Auld, May and Scott Baker LJJ.: 2 December 2004
INSURANCE: PROPOSAL FORM: MOTOR INSURANCE POLICY: WHETHER INSURED’S OCCUPATION FULLY DISCLOSED: WHETHER INSURED’S OCCUPATION MATERIAL TO ACCEPTANCE OF RISK: NON-DISCLOSURE: INNOCENT NON-DISCLOSURE: AVOIDANCE

Doheny and others v New India Assurance Co Ltd and Others
English Court of Appeal: Potter and Longmore LJJ., and Sir Christopher Staughton: [2004] EWCA Civ 1705: 15 December 2004
INSURANCE: PROPOSAL FORM: DECLARATION: "BANKRUPTCY": INTERPRETATION: "CONTRA PROFERENTEM RULE": WARRANTY: DUTY OF DISCLOSURE: WAIVER OF DISCLOSURE : MARINE INSURANCE ACT 1906, S.18(3)(c)

Lumbermens Mutual Casualty Co v Bovis Lend Lease Limited
English High Court: Colman J.: [2004] EWHC 2197 (Comm): 5 October 2004
INSURANCE: PROFESSIONAL INDEMNITY INSURANCE: CONSTRUCTION CONTRACT: CLAIM BY CONTRACTOR AGAINST EMPLOYER: COUNTERCLAIMS BY EMPLOYER AGAINST CONTRACTOR: GLOBAL SETTLEMENT: BASIS OF SETTLEMENT NOT STATED: WHETHER INSURED LOSS "ASCERTAINED": WHETHER LOSS COULD BE ASCERTAINED BY EXTRINSIC EVIDENCE

Mayban General Assurance BHD and Others v. Alstom Power Plants Limited and Others
English High Court: Moore-Bick J.: [2004] EWHC 1038 (Comm): 7 May 2004
MARINE INSURANCE: "ALL RISKS" CARGO COVER : INTERNAL DAMAGE TO TRANSFORMER: WHETHER CAUSED BY PERILS OF THE SEA OR INHERENT VICE: WHETHER WEATHER CONDITIONS ENCOUNTERED UNUSUAL 

WISE Underwriting Limited & Another v Grupo Nacional Provincial SA
English Court of Appeal: Peter Gibson, Rix and Longmore LJJ.: 20 July 2004
INSURANCE: REINSURANCE: WHETHER "CLOCKS" INCLUDES "WATCHES": NON-DISCLOSURE: WAIVER: AFFIRMATION: MATERIALITY: INDUCEMENT

Midland Mainline Limited and others v Eagle Star Insurance Co Limited
English Court of Appeal: Brooke V-P and Jacob LJ., Sir Martin Nourse: 28 July 2004
INSURANCE: DENIAL OF ACCESS TO RAILWAY TRACK: FINANCIAL LOSS: EXCLUSION OF WEAR AND TEAR: WHETHER WEAR AND TEAR UNDERLYING STATE OF AFFAIRS OR PROXIMATE CAUSE OF LOSS: MORE THAN ONE PROXIMATE CAUSE: WHERE EXCLUDED PERIL WAS ONE PROXIMATE CAUSE

IF P&C Insurance Ltd v Silversea Cruises Ltd & Others
English Court of Appeal: Ward, Mummery and Rix LJJ: 2 July 2004
INSURANCE: LOSS OF INCOME AND EXTRAORDINARY COSTS POLICY: CRUISE SHIPS: EFFECT OF EVENTS OF 11 SEPTEMBER 2001: WHETHER INDEMNITY LIMIT APPLIED PER SHIP OR TO THE FLEET AS A WHOLE: "EACH SHIP TO BE A SEPARATE INSURANCE: CONCURRENT CAUSES: MEANING OF "ACT OF WAR"

Owner of MV ‘X’ v. Hull Underwriter Y
Landgericht Hamburg (Regional Court Hamburg) TranspR 2004, 263; July 10th, 2003 – 409 O 119/02
ADS sections 33.1, 58.1 (General Terms of German Marine Insurance): Grounding of vessel because it sailed with insufficient nautical charts: master as the owner’s representative in the context of hull insurance


Eagle Star Insurance Co Ltd v J N Cresswell & Others
English Court of Appeal: Chadwick, Rix and Longmore LJJ.: 14 May 2004
INSURANCE: REINSURANCE: FOLLOW THE SETTLEMENTS CLAUSE: NOTICE: CLAIMS CONTROL CLAUSE: CLAIMS CO-OPERATION CLAUSE: OPTION: CONDITION PRECEDENT: INTERPRETATION OF CONFLICTING CLAUSES: TYPED CLAUSES: PRINTED CLAUSES


David George King and Others v Brandywine Reinsurance (UK) Ltd (formerly Cigna Re Co (UK) Ltd
English Commercial Court: Colman J: 10 May 2004
INSURANCE POLICIES: OIL POLLUTION: PROPER LAW OF UNDERLYING PRIMARY POLICIES: REINSURANCE CONTRACTS : SCOPE OF COVERAGE: RECOVERY OF CLEAN UP COSTS INCURRED BY OIL CARGO OWNER AND TANKER OWNER AFTER OIL SPILL: MEANING OF "DEBRIS": DIVISION OF RISKS BETWEEN POLICY SECTIONS: EXCLUSION OF LIABILITIES COVERED UNDER ITIA RULES: EXCLUSION OF LIABILITIES ARISING OUT OF OWNERSHIP OF WATERCRAFT: MEANING OF "TRANSPORTATION ACTIVITIES": SEEPAGE AND POLLUTION EXCLUSION: MEANING OF "ON LAND"

Ramco (UK) Ltd & Ors v International Insurance Company of Hannover Ltd & Anor
English Court of Appeal: Waller, Jonathan Parker and Longmore LJJ.: 27 May 2004
INSURANCE: GOODS IN WAREHOUSE: LOSS BY FIRE: BAILEE: BASIS OF INDEMNITY: WHETHER FULL VALUE OF GOODS OR AMOUNT OF BAILEE’S RESPONSIBILITY FOR THE GOODS, IF ANY

Kastor Navigation Co Limited & Anor v AXA Global Risks (UK) Limited and Ors 
English Court of Appeal: Tuckey, Rix and Neuberger LJJ.: 10 March 2004
SHIPPING: INSURANCE: CONSTRUCTIVE TOTAL LOSS: ACTUAL TOTAL LOSS: INSURED TOTAL LOSS IMMEDIATELY FOLLOWED BY UNINSURED TOTAL LOSS: PROXIMATE CAUSE: NOTICE OF ABANDONMENT NOT SERVED: WHETHER SERVICE OF NOTICE A CONDITION PRECEDENT: DECISION TO ABANDON: INSURED’S CONDUCT: SUCCESSIVE LOSSES: UNREPAIRED DAMAGE: PARTIAL LOSS: COSTS

Paul Toomey of Syndicate 2021 v Banco Vitalicio De Espana SA De Seguros y Reaseguros 
English Court of Appeal: Sir Andrew Morritt, Dyson and Thomas LJJ. 18 May 2004
REINSURANCE: MISMATCH OF INSURED INTEREST: ORIGINAL INSURANCE A VALUED POLICY: REINSURANCE POLICY UNVALUED: MATERIALITY:: WARRANTY OF INSURED INTEREST: BREACH: FULL REINSURANCE CLAUSE 

Royal & Sun Alliance Insurance Plc v Dornoch Ltd & Others
English Commercial Court: Aikens J.: [2004] EWHC 803 (Comm): 22 April 2004
 INSURANCE: REINSURANCE: CLAIMS CONTROL CLAUSE: 72-HOUR NOTICE CLAUSE: "KNOWLEDGE OF ANY LOSS": MEANING OF "LOSS": MEANING OF "KNOWLEDGE"

Horbury Building Systems Ltd v Hampden Insurance NV
English Court of Appeal: Peter Gibson, Mance and Keene LJJ.: 7 April 2004
INSURANCE: PRODUCT LIABILITY INSURANCE: COVER "IN RESPECT OF DAMAGE" TO PROPERTY: CONSEQUENTIAL LOSS: EXTENT TO WHICH LIABILITY FOR CONSEQUENTIAL LOSS COVERED

Glencore International v. Alpina Insurance Co. Ltd
English Commercial Court: Moore-Bick J.: [2003] EWHC 2792 (Comm): 20 November 2003
INSURANCE: NON-DISCLOSURE: AVOIDANCE: MATERIALITY: MISREPRESENTATION: INDUCEMENT: RELIANCE

W.I.S.E Underwriting Agency Ltd & Dornoch Ltd v. Grupo Nacional Provincial S.A
English Commercial Court: Simon, J.: [2003] EWHC 3038 (Comm): 1 October 2003
INSURANCE: REINSURANCE: NON-DISCLOSURE: KNOWLEDGE: MEANING OF "CLOCKS": MATERIALITY: WAIVER: INDUCEMENT/RELIANCE: AFFIRMATION

Assicurazioni Generali SpA -v- CGU International Insurance Plc and Others
English Court of Appeal: Peter Gibson LJ, Tuckey LJ, Sir Martin Nourse: [2004] EWCA Civ 429: 6 April 2004
REINSURANCE: ‘FOLLOW THE SETTLEMENTS’ CLAUSES: BACK-TO-BACK POLICIES: SETTLEMENTS TO BE FOLLOWED ‘WITHOUT QUESTION’: APPLICATION OF THE ‘SCOR PROVISOS’

Lagden v O'Connor
UK House of Lords: Lords Nicholls, Slynn, Hope, Scott and Walker: [2003] UKHL 64: 4 December 2003
CAR ACCIDENT: MEASURE OF DAMAGES: REPLACEMENT CAR: WHETHER CREDIT HIRE COMPANY FEE RECOVERABLE: IMPECUNIOSITY OF VICTIM: FORSEEABILITY: THE RULE IN THE LIESBOSCH DREDGER CASE [1933] AC 449 RE-CONSIDERED

Hua Seng Sawmill v. QBE Insurance (Malaysia) BHD
[2003] 4 SLR 449
Singapore High Court: Justice Belinda Ang: 9 October 2003
MARINE INSURANCE: Institute Cargo Clauses (C): LOSS OF CARGO FROM BARGE : WHEN LOST: WHETHER INSURABLE INTEREST: PROXIMATE CAUSE: "REASONABLY ATTRIBUTABLE TO": WHETHER COVERED UNDER "WASHING OVERBOARD" PERIL: MEANING OF "WASHING OVERBOARD": BURDEN OF PROOF

Miruvor Ltd v. National Insurance Co Ltd
Hong Kong Court of Appeal: Rogers VP, Le Pichon and Yuen JJA.: 21 February 2003
INSURANCE: INSTITUTE CARGO CLAUSES (A) – ALL RISK: WHETHER LOSS IN STORAGE EXCLUDED UNDER DURATION CLAUSE 8: WHETHER SUFFICIENT ATTEMPT TO SAFEGUARD GOODS UNDER MINIMISING LOSSES CLAUSE 16

Dickinson v National Mutual Life Association of Australasia Ltd (trading as AXA Australia)
Australia; Supreme Court of Victoria; Smith J; [2003] VSC 325; 5 September 2003
Insurance contract: alleged non-disclosure: duties of broker: loss of opportunity to impose exclusion clause

Tanevski v Trenwick International Limited
Australia: New South Wales Court of Appeal: Tobias JA, Young CJ In Eq, Davies AJA: [2003] NSWCA 303: 17 October 2003
Insurance: Whether public liability cover obtained: whether insurance broker arranged cover under its binder with unauthorised overseas insurer: whether there could be an insurance contract when broker represented and insured understood that cover was with different underwriters: what was effect of misleading insurance certificate: whether insurance agents were negligent: whether breach of Trade Practices Act

Gibbs & Another v Mercantile Mutual Insurance
High Court of Australia; Gleeson CJ, McHugh, Kirby, Hayne & Callinan JJ; [2003] HCA 39
Insurance: Contracts : Insurance cover against liability to third parties arising from use of marine pleasure craft for commercial para-flying: Where para-flying to be conducted in estuarine waters: Whether policy a contract to which Marine Insurance Act 1909 (Cth) applied: Whether policy a contract of marine insurance

Drake Insurance Plc (in provisional liquidation) v Provident Insurance Plc
English Court of Appeal; Pill, Clarke and Rix LJJ. ; 17 December 2003
INSURANCE: NON-DISCLOSURE: AVOIDANCE: INFORMATION KNOWN AT TIME OF CONTRACT: TRUE FACTS AS LATER APPEAR: INSURER’S DUTY O F GOOD FAITH: WAIVER: DOUBLE INSURANCE: RATEABLE CONTRIBUTION CLAUSES: VOLUNTARY PAYMENTS: PAYMENTS UNDER PROTEST: PAYMENTS WITHOUT PREJUDICE

Ramco (UK) Ltd and others v International Insurance Company of Hannover Ltd and another
English High Court: Andrew Smith J.: 15 October 2003
INSURANCE: GOODS IN WAREHOUSE: BAILEE: WHETHER BASIS OF INDEMNITY FULL VALUE OF GOODS OR AMOUNT OF BAILEE’S RESPONSIBILITY FOR THE GOODS

Frans Maas (UK) v Sun Alliance and London Insurance Plc
English Commercial Court: David Steel, J.: 22 July 2003
INSURANCE POLICY: RELEASE OF GOODS WITHOUT PRODUCTION OF BILLS OF LADING: LIABILITY TO THIRD PARTIES: NO CONTRACT BETWEEN INSURED AND CLAIMANTS: POLICY CONDITIONS: COVER WHERE INSURED’S TRADING CONDITIONS "UNENFORCEABLE": MEANING OF "UNENFORCEABLE": INSURED’S FAILURE TO TAKE REASONABLE PRECAUTIONS: LOSS BY INSURED’S WILFUL ACT

Chris O'Kane v Jonathan Jones and others
English High Court: Richard Sibery, QC J.: 30 July 2003
MARINE INSURANCE: DOUBLE INSURANCE: ASSUREDS: UNDISCLOSED PRINCIPAL: CANCELLATION OF POLICY FROM INCEPTION AFTER LOSS OCCURRED: TIME WHEN RIGHT TO CONTRIBUTION ARISES - DATE OF PAYMENT BY FIRST INSURER OR TIME OF LOSS: CALCULATION OF CONTRIBUTION: INDEPENDENT LIABILITY METHOD: MAXIMUM LIABILITY METHOD: COMMON LIABILITY/DOUBLE LIABILITY METHOD: NON-DISCLOSURE OF UNPAID PREMIUMS UNDER FIRST POLICY: WHETHER A MATERIAL FACT: WHETHER POLICY VOID FOR MISTAKE

Lloyds TSB General Insurance Holdings Ltd and Others v The Lloyds Bank Group Insurance Co Limited: Abbey National Plc v Alan Godfrey Lee & Others (2001)
English House of Lords: Lords Nicholls, Hoffmann, Hobhouse, Millet and Walker: 31 July 2003
BANKERS’ COMPOSITE INSURANCE POLICY: LIABILITY FOR MIS-SELLING: WHETHER RESULTING FROM “any single act or omission (or related series of acts or omission)”: aggregation: aggregation clause: single underlying cause or common origin: whether equivalent to single “originating cause”

Assicurazioni Generali SpA -v- CGU International Insurance Plc and Others
English High Court: Commercial Court: Gavin Healey QC: 2 May 2003
REINSURANCE: REINSURERS TO "FOLLOW THE SETTLEMENTS WITHOUT QUESTION: REINSURERS TO "PAY AS MAY BE PAID THEREON": EXCLUSION OF "EX GRATIA" PAYMENTS: CLAIM WITHIN REINSURANCE POLICY AS A MATTER OF LAW: INSURERS’ DUTY TO ACT HONESTLY: INSURERS’ DUTY TO TAKE PROPER AND BUSINESS-LIKE STEPS IN SETTLING CLAIMS: MEANING OF "EX GRATIA"

QBE Insurance Limited v MGM Plumbing Pty Limited
Supreme Court of Queensland; B W Ambrose J;
[2003] QSC 27; 19 February 2003
INSURANCE: Public Liability: Products liability: Construction of policy: application for declarations: consideration of use of words "occurrence" and "event" in policy: whether single excess payable for series of incidents resulting in damage or excess payable for each incident of damage

Permanent Trustee Company of Australia Limited & Anor v FAI General Insurance Co Limited (in liquidation)
High Court of Australia; McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 25; 8 May 2003
Insurance: Obligations of insured to disclose to insurer: extension granted Where insured had decided "probably not" to renew policy for following year: Whether non-disclosure of intention not to renew amounted to failure to disclose a "matter relevant to the decision of the insurer whether to accept the risk" to extend policy under s 21(1)(a) of the australian Insurance Contracts Act 1984: Whether non-disclosure was a misrepresentation in breach of s 26(2) oF THE ACT

Paul Toomey of Syndicate 2021 -v- Banco Vitalicio de Espana SA de Seguros y Reaseguros
English Commercial Court: Andrew Smith, J: 20 May 2003
REINSURANCE: MISMATCH OF INSURED INTEREST: VALUED POLICIES: MATERIALITY: MISREPRESENTATION: INDUCEMENT: FULL REINSURANCE CLAUSE: WARRANTY OF INSURED INTEREST: BREACH

Brotherton and others -v- Aseguradora Colseguros SA and another
English Court of Appeal: Buxton, Mance and Ward LJJ.: 22 May 2003
Insurance/reinsurance: Whether materiality of non-disclosure can be assessed in light of subsequent events: RIGHT OF AVOIDANCE: TIME OF EXERCISE: NO POWER OF COURT TO INTERVENE TO CONTROL ITS USE RETROSPECTIVELY

Peter Malcolm Brotherton and Others v. Aseguradora Colseguros and another
English Commercial Court: Moore-Bick J.: 26 February 2003
Insurance/reinsurance: Whether materiality of non-disclosure can be assessed in light of subsequent events

Groupama Insurance Company Limited v Overseas Partners Re Limited and Aon Limited
English Commercial Court: Morison, J.: 24 January 2003
INSURANCE: REINSURANCE: DUTY OF DISCLOSURE: MEANING OF "INCURRED LOSSES": WHETHER DUTY TO DISCLOSE CLAIMS UNDER ORIGINAL POLICY NOT DECLARED TO REINSURER

HIH Casualty & General Insurance Limited & Others -v- Chase Manhattan Bank & Others
English House of Lords: Lords Bingham, Hobhouse, Hoffmann, Scott and Steyn: 20 February 2003
INSURANCE: FILM FINANCE: PRELIMINARY ISSUES: CONSTRUCTION OF TRUTH OF STATEMENT CLAUSE: WAIVER OF DUTY OF UTMOST GOOD FAITH: WAIVER OF BROKER'S DUTIES: FRAUDULENT MISREPRESENTATION: PUBLIC POLICY

Drake Insurance Plc -v- Provident Insurance Plc
English High Court: Moore-Bick J.:3 February 2003
MOTOR INSURANCE: CONTRIBUTION FROM ANOTHER INSURER: ACCIDENT DECLARED AT INCEPTION INCORRECTLY AS "FAULT" ACCIDENT: SPEEDING CONVICTION NOT DECLARED ON RENEWAL: INSURERS AVOID POLICY FOR NON-DISCLOSURE: COMBINATION OF FAULT ACCIDENT AND SPEEDING CONVICTION WOULD HAVE LED TO INCREASED PREMIUM: HAD FAULT ACCIDENT BEEN CORRECTLY DECLARED AS "NO FAULT", SPEEDING CONVICTION ALONE WOULD NOT HAVE LED TO INCREASED PREMIUM: DUTY OF UTMOST GOOD FAITH: WHETHER INSURERS OBLIGED TO REINSTATE POLICY ONCE TRUTH KNOWN

Elilade Pty Limited v Nonpareil Pty Limited
Australia: Federal Court of Australia, Northern Territory District Registry: Mansfield J; (2002) 12 ANZ Ins Cas 61-535: 31 July 2002
INSURANCE — INSURANCE POLICY HAD "FLOOD" EXEMPTION — LOSS CAUSED BY WATER DAMAGE BEING AN INSURED EVENT — LOSS SUBSEQUENTLY CAUSED BY FLOOD BEING AN EXEMPTED EVENT — INSURANCE BROKER — WHETHER INSURANCE BROKER OWED INSURED DUTY TO ADVISE INSURED OF AVAILABILITY OF INSURANCE INCLUDING FLOOD COVER — WHETHER INSURANCE BROKER OWED INSURED DUTY TO INFORM INSURED OF FLOOD EXEMPTION IN POLICY — WHETHER DUTY DISCHARGED BY CORRESPONDENCE REQUESTING INSURED TO CHECK SCHEDULE OF INSURANCES WHICH CLEARLY IDENTIFIED FLOOD EXEMPTION

Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liquidation  (No 5)
Australia; Supreme Court of Victoria, Eames J: (2002) 12 ANZ Ins Cas 61-519: 7 March 2002
INSURANCE — PUBLIC LIABILITY POLICY — CONSTRUCTION OF CONTRACT — CLAIMANT A SUBSIDIARY COMPANY AND PROJECT MANAGER FOR PROPERTY DEVELOPMENT BY GROUP — COMPANIES IN GROUP OWN PROPERTY WHICH IS SUBJECT OF DEVELOPMENT — WHETHER COVER "IN CONNECTION WITH THE BUSINESS" IS CONFINED TO COMPANIES IN GROUP OWNING AND OCCUPYING PROPERTIES — EXCLUSION CLAUSE — NO COVER FOR "BREACH OF A DUTY OWED IN A PROFESSIONAL CAPACITY" — WHETHER FINDING OF VICARIOUS LIABILITY INCLUDED FINDING THAT PROJECT MANAGER IN BREACH OF ITS OWN DUTY OF CARE — WHETHER PROJECT MANAGER AND/OR EMPLOYEE ACTING IN A "PROFESSIONAL CAPACITY"

Bakerland Pty Ltd v Coleridge
Australia: New South Wales Court of Appeal; Giles, Heydon JJA and Grove J; (2002) 12 ANZ Ins Cas 61-521;25 March 2002
INSURANCE — GENERAL INSURANCE — STORM DAMAGE — INDEMNITY — COLLAPSE OF PART OF BUILDING — WHETHER INSURED ENTITLED TO INDEMNITY VALUE OF BUILDING VIEWED ALONE AS DISTINCT FROM TOGETHER WITH THE LAND ON WHICH IT STOOD — WHETHER INSURED WORSE OFF AS RESULT OF THE COLLAPSE — WHETHER INSURED HAD PROVED COSTS OF REMOVAL OF DEBRIS 

Nima Sarl v Deves Insurance Public Co Limited
English Court of Appeal: Potter and Keene, LJJ., and Summer J.: 30 July 2002
INSURANCE: MARINE INSURANCE ACT 1906: PHANTOM VESSEL: VESSEL SAILED FOR DESTINATION OTHER THAN POLICY DESTINATION: WAREHOUSE-TO-WAREHOUSE CLAUSE: WHETHER RISK ATTACHED UNDER s.44 MIA

Sunport Shipping Limited and Others v Tryg-Baltica and Others; The "Kleovoulos of Rhodes" 
English Court of Appeal: Clarke, Peter Gibson and Scott Baker LJJ.: 24 January 2003 
INSURANCE: TOTAL LOSS BY DETAINMENT: INFRINGEMENT OF CUSTOMS REGULATIONS:WHETHER EXCLUSION LIMITED TO DUTIES LEVIED ON IMPORTS: WHETHER INCLUDES IMPORT/EXPORT OF PROHIBITED GOODS

Mitsui Marine and Fire Insurance Co Limited & Others v Bayview Motors Limited
English Court of Appeal: Tuckey, Hale and Henry LJJ
: 7 November 2002
ALL RISKS CARGO INSURANCE POLICIES: INSTITUTE CARGO CLAUSES 1/1/63: MOTOR VEHICLES: STOLEN BY CUSTOMS OFFICERS: TRANSIT CLAUSE: DESTINATION: FINAL PLACE OF STORAGE: SEIZURE: CESSATION OF COVER: TIMING OF LOSS

Kastor Navigation Co Ltd. and Atlantic Bank of New York v. AGF M.A.T & Others
Commercial Court: Tomlinson J.: 4 December 2002
SHIPPING: INSURANCE: CONSTRUCTIVE TOTAL LOSS: ACTUAL TOTAL LOSS: ACCIDENTAL FIRE IN ENGINE ROOM: VESSEL SUNK SHORTLY AFTERWARDS: FIRE NOT PROXIMATE CAUSE OF SINKING: SINKING CAUSED BY WATER ENTERING VESSEL IN UNKNOWN MANNER: NOTICE OF ABANDONMENT NOT SERVED: WHETHER SERVICE OF NOTICE A CONDITION PRECEDENT: NO CONCEIVABLE BENEFIT TO UNDERWRITERS: S.62(7) MARINE INSURANCE ACT 1906: TRANSFER BY OPERATION OF LAW

Nam Kwong Medicines & Health Products Co. Ltd. v China Insurance Co. Ltd.
Hong Kong High Court: Stone J: 28th June 2002
MARINE INSURANCE: LOSS OF CARGO: ‘PHANTOM’ SHIP: INSTITUTE CLASSIFICATION CLAUSE: S.44 MARINE INSURANCE ACT 1906 OF THE UK: WAREHOUSE TO WAREHOUSE CLAUSE

Direct Line Insurance Plc v. Khan & Another
English Court of Appeal: The Vice-Chancellor, Buxton LJ and Lady Justice Arden: 11 October 2001
HOUSE INSURANCE POLICY IN NAMES OF HUSBAND AND WIFE: CLAIM AGAINST UNDERWRITERS FOR DAMAGE TO HOUSE AND CONTENTS CAUSED BY FIRE: ALSO FOR RENT OF ALTERNATIVE ACCOMMODATION: RENTAL CLAIM FRAUDULENT: CLAIM MADE BY HUSBAND ON WIFE’S BEHALF: CLAIM BY INSURERS FOR REPAYMENT OF ALL SUMS PAID IN RESPECT OF FIRE: WHETHER POLICY JOINT OR SEVERAL: WHETHER WIFE’S CLAIM TAINTED BY HUSBAND’S FRAUD

Budgett Sugars v Norwich Union Insurance Limited
English Commercial Court: Moore-Bick J.: 15 May 2002
INSURANCE: STANDARD FORM PUBLIC AND PRODUCT LIABILITY POLICY: CONSTRUCTION OF "EVENT" IN POLICY: EVENT DEFINED AS LOSS OF OR DAMAGE TO PROPERTY: THIRD PARTY CLAIMS FOR CONSEQUENTIAL LOSS NOT COVERED

George Hunt Cranes Limited v Scottish Boiler and General Insurance Co Limited
English Court of Appeal: Potter LJ, Morland J: 3 December 2001
INSURANCE POLICY: CLAIM FOR DAMAGE TO HIRED EQUIPMENT: NOTIFICATION CLAUSE: WHETHER COMPLIANCE WITH NOTIFICATION CLAUSE A CONDITION PRECEDENT TO INSURERS’ LIABILITY

Bayview Motors Ltd. v. Mitsui Marine & Fire Insurance Co Ltd. and Others
English Commercial Court: Steel J.: [2002] EWHC 21 (Comm): 23 January 2002
ALL RISKS CARGO INSURANCE POLICIES: INSTITUTE CARGO CLAUSES 1/1/63: MOTOR VEHICLES: STOLEN BY CUSTOMS OFFICERS: CONVERSION: CONFISCATION: SEIZURE: FINAL PLACE OF STORAGE AT DESTINATION: TIMING OF LOSS: CONSTRUCTIVE TOTAL LOSS: CESSATION OF COVER

Jan de Nul (UK) Ltd v Axa Royale Belge SA
English Court of Appeal: Scheimann, Hale and Rix: 20 February 2002

INSURANCE POLICY : LIABILITY TO THIRD PARTIES : CAPITAL DREDGING OPERATIONS: SILTATION: NEGLIGENCE: PRIVATE NUISANCE: PUBLIC NUISANCE: INTERESTS IN LAND: SCOPE OF COVER : CONSTRUCTION OF POLICY : ELIGIBLE CLAIMS: EXTRA CONTRACTUAL:OBLIGATIONS: EXCLUSION CLAUSES: PURE ECONOMIC LOSS

Project Asia Line Inc of Delaware and United Shipping Services Limited v Andrew Shone & Others ("The Pride of Donegal") 
English High Court, Commercial Court: Andrew Smith, J.: 24 January 2002 
FREIGHT INSURANCE UNDER VOYAGE POLICY: SHIP BREAKS DOWN IN COURSE OF VOYAGE: WARRANTY OF SEAWORTHINESS AT COMMENCEMENT OF VOYAGE: CLASSIFICATION WARRANTY: IN CLASS AT TIME OF EVENTS GIVING RISE TO CLAIM

Agapitos and Laiki Bank (Hellas) SA, v, Agnew and Others1
English Commercial Court: Moore-Bick J.: 24 July 2002
MARINE INSURANCE POLICY: CLAIM AGAINST HULL UNDERWRITERS FOR TOTAL LOSS OF VESSEL ‘AEGEON’ CAUSED BY AN INSURED PERIL: DEFENCE OF BREACH OF WARRANTY

Miruvor Ltd v. National Insurance Co Ltd
Hong Kong Court of First Instance: Stone J.: [2002] HKEC 1033: October 2001
INSURANCE: INSTITUTE CARGO CLAUSES (A) – ALL RISK: WHETHER LOSS IN STORAGE EXCLUDED UNDER DURATION CLAUSE 8: WHETHER SUFFICIENT ATTEMPT TO SAFEGUARD GOODS UNDER MINIMISING LOSSES CLAUSE 16

Handelsbanken v. Dandridge and Others
English Court of Appeal: Lord Phillips MR, Potter and Arden LJJ: 30 April 2002
MARINE INSURANCE POLICIES: INSTITUTE WAR AND STRIKES HULLS-TIME CLAUSES 1983 EDITION: ILLEGAL FISHING: SEIZURE AND  DETENTION OF VESSEL UNDER FISHERIES MANAGEMENT ACT 1991 OF AUSTRALIA: WARRANTY OF NO ILLEGAL FISHING: POTENTIAL FORFEITURE OF VESSEL: FORECLOSURE PROCEEDINGS: SALE OF VESSEL: INFRINGEMENT OF TRADING REGULATIONS: NATURE AND PURPOSE OF REGULATIONS: NATURE OF VESSEL: ORDINARY JUDICIAL PROCESS: CIVIL PROCEEDINGS: EXECUTIVE ACTS: EFFECTIVE DOMINANT CAUSE: FAILURE TO PROVIDE SECURITY: ANY FINANCIAL CAUSE: CONCURRENT CAUSES OF LOSS OF USE: INSURED VALUE: SECURITY EXCEEDING VALUE OF VESSEL: REASONABLENESS OF AMOUNT: LIKELIHOOD OF RECOVERY

Strive Shipping Corporation and Royal Bank of Scotland plc v Hellenic Mutual War Risks Association (The Grecia Express)
English Commercial Court: Colman J.: 25 March 2002
Summary
This unusual case involved allegations by war risks insurers that the person controlling the shipowner company, Mr Ventouris, not only caused the vessel to be fraudulently cast away but failed to disclose (amongst other things) that he had fraudulently cast away his own luxury power boat, the Coha II, two months beforehand.

The court had no hesitation in clearing Mr Ventouris of any involvement in either the loss of the Grecia Express or the other losses relied on by insurers and held that there had been no non-disclosures entitling insurers to avoid the policy. Nor had there been any breach of the duty to act reasonably to avert the loss under section 78(4) of the Marine Insurance Act. The judgment, however, raises some interesting points on the nature of moral hazard and the duty of disclosure.

Eurodale Manufacturing Limited v. Ecclesiastical Insurance Office Plc 
English High Court: Andrew Smith J: April 2002 
INSURANCE: TRANSIT COVER: INSTITUTE CARGO CLAUSES (A) 1/1/82: TERMS INCORPORATED BY REFERENCE: STANDARD TERMS OVERRIDDEN BY CLAUSES 

New Hampshire Insurance Co v Oil Refineries Limited 
English Commercial Court: Judge Chambers QC: April 2002 
INSURANCE: MATERIAL NON-DISCLOSURE: CLAIMS HISTORY: WAIVER: SILENCE

GIO General Ltd v Wallace
New South Wales, Australia, Court of Appeal: Priestley, Heydon and Hodgson, JA: [2001] NSWCA 299: October 2001
General insurance: Insurance contracts: Duty of disclosure: Residential premises insured: increased used of Business premises led to increased risk: Whether insured breached duty of disclosure: Whether insurer breached duty to inform insured of duty of disclosure

General Accident Insurance Asia Limited v Sakr & Others
New South Wales, Australia, Court of Appeal: Giles, Hodgson JJA and Sperling J : [2001] ACL Rep 235 NSW 15: November 2001
INSURANCE: Duty of disclosure: unoccupied property damaged by fire: Insurer previously asked to remove loss of rent and public liability cover because building vacant: insurer failed to inquire about occupancy when building insurance policy renewed: Whether waiver of further compliance with duty of disclosure

Gan Insurance Company Limited v The Tai Ping Insurance Company Limited 
English Court of Appeal: Brooke, Mance and Park LJJ.: March 2002 
REINSURANCE: CLAIMS COOPERATION CLAUSE: "investigation and assessment of any loss": FAILURE TO act in a "proper and business-like manner": relevance and purpose of enquiries: SUFFICIENCY OF INFORMATION SUPPLIED IN ANSWER: investigation of all matters relevant to a claim IncludES coverage issues: conduct over settlement unbusinesslike: AMENDMENT OF PLEADINGS

Sunport Shipping Limited and Others v Atkin and Others; The ‘Kleovoulos of Rhodes’  
English High Court: Cresswell J.: February 2002 
INSURANCE: TOTAL LOSS BY DETAINMENT: INFRINGEMENT OF CUSTOMS REGULATIONS:WHETHER LIMITED TO DUTIES LEVIED ON IMPORTS: WHETHER INCLUDES IMPORT/EXPORT OF PROHIBITED GOODS: REASON FOR DETAINMENT 

Cornhill Insurance Plc v. D E Stamp Felt Roofing Contractors Ltd.
English Court of Appeal: Pill and Longmore LJJ, Sir Denis Henry: March 2002
INSURANCE: PUBLIC LIABILITY INSURANCE POLICIES: FLAT ROOFING BUSINESS: FIRE:
POLICY CONDITIONS: BREACH OF CONDITIONS: REFUSAL TO INDEMNIFY: ARRANGING FOR PRECAUTIONS TO BE TAKEN: UNDERTAKING THAT PRECAUTIONS HAD BEEN TAKEN: ABSOLUTE OBLIGATIONS

Caledonia North Sea Limited v London Bridge Engineering Limited and Others
UK House of Lords: Lords Bingham, Mackay, Nicholls, Hoffmann and Scott: February 2002 
INSURANCE: CONTRACT: GUARANTEE AND INDEMNITY: DISASTER ON OIL PLATFORM: EMPLOYEES OF CONTRACTORS INJURED AND KILLED: CLAIMS SETTLED BY OPERATOR'S INSURERS : INDEMNIFIED BY INSURERS: RIGHTS OF SUBROGATION AND CONTRIBUTION: INDEMNITY CLAUSES: OIL INDUSTRY PRACTICE : RECOVERY OF SCOTTISH OR TEXAN LEVELS OF DAMAGES

Pacific Dunlop (Asia) Ltd. & Grosby (China) Ltd. v. Inchcape Insurance Brokers (HK) Ltd.

Hong Kong Court of First Instance: Stone J.: [2001] HKEC 806: June 2001
INSURANCE: INCREASE OF INSURED VALUES DISPUTED: SETTLEMENT BY PRIMARY UNDERWRITERS ON PRE-RENEWAL VALUES: CONSEQUENT CLAIM ON ‘TOP-UP’ INSURERS: TOP-UP INSURERS CLAIM IN SUBROGATION: AUTHORITY OF BROKERS TO ISSUE UNDER-LYING POLICY: PRIMARY INSURERS NOT LICENSED TO DO BUSINESS IN HONG KONG: ISSUE OF POLICY IN HONG KONG ILLEGAL: EFFECT OF ILLEGALITY: CLAIMANTS’ AFFIRMATION OF POLICY:

Konstantinos Agapitos v. Agnew and Others
English Court of Appeal: Brook, Mance and Park LJJ: March 2002
INSURANCE POLICY: AVOIDANCE: BREACH OF WARRANTY: MISREPRESENTATION DURING LITIGATION: USE OF FRAUDULENT MEANS OR DEVICES TO PROMOTE A CLAIM: CLAIM OTHERWISE VALID: SCOPE OF COMMON LAW RULE REGARDING FRAUDULENT CLAIMS: DURATION: SUPERSEDED OR EXHAUSTED BY RULES OF LITIGATION: S.17 UK MARINE INSURANCE ACT 1906 (‘MIA’)

K/S Merc-Scandia V. Lloyd's Underwriters (The ‘Mercandian Continent)

English Court of Appeal: Walker and Longmore LJJ; Carnwarth J: [2001] 2 Lloyd’s Rep. 563:
INDEMNITY UNDER A LIABILITY INSURANCE POLICY: SHIP-REPAIRERS INSURED FOR NEGLIGENT REPAIRS TO VESSELS:CLAIM BY THE OWNER OF THE NEGLIGENTLY REPAIRED SHIP: ASSURED PRODUCED FORGED DOCUMENT DURING THE LIABILITY LITIGATION: ASSURED IN LIQUIDATION: OWNER SUED LIABILITY UNDERWRITERS: UNDERWRITERS DENIED LIABILITY UPON DISCOVERY OF FORGERY BY ASSURED: WHETHER BREACH OF S. 17 MARINE INSURANCE ACT (1906) (‘MIA’) OR BREACH OF A TERM IN POLICY

Manifest Shipping Ltd. v. Uni-Polaris Insurance Co. Ltd – (The ‘Star Sea’
)

English House of Lords: Lords Steyn, Hoffmann, Clyde, Hobhouse and Scott: [2001] 1 Lloyd’s Rep. 1:
MARINE INSURANCE: TIME POLICY: VESSEL CONSTRUCTIVE TOTAL LOSS BY FIRE:
 
1.UNSEAWORTHINESS (SECTION 39(5) OF THE MARINE INSURANCE ACT (‘MIA’) 1906): WAS THE VESSEL SENT TO SEA IN AN UNSEAWORTHY CONDITION WITH THE PRIVITY OF THE ASSURED?
2.UTMOST GOOD FAITH: IS THE DUTY CONTINUING AFTER THE CONTRACT HAS BEEN MADE? IF IT IS, COULD THE DUTY APPLY AFTER LITIGATION HAS COMMENCED? WAS THE ASSURED IN BREACH OF THE DUTY UNDER SECTION 17 OF THE MIA 1906?


Wong Shu Kuen v.Vianet International & Services Co. and China Insurance Co Ltd Hong Kong, as third party

Hong Kong District Court: Carlson J: [2001] HKEC 570: March 2001
EMPLOYEE COMPENSATION CLAIM: EMPLOYER SEEKS JOINDER OF INSURER AS PERSON APPEARING TO BE INTERESTED IN THE PROCEEDINGS: HONG KONG EMPLOYEES’ COMPENSATION ORDINANCE: LIABILITY OF INSURERS UNDER SECTIONS 43(1) AND 44(1) OF ORDINANCE: DISPUTE UNDER EMPLOYEES’ COMPENSATION POLICY: MOTIVES FOR JOINDER: WHETHER JOINDER RELEVANT TO ISSUES IN COMPENSATION PROCEEDINGS

B+B Construction Co Ltd v. Sun Alliance and London Insurance plc
Hong Kong Court of Final Appeal: Judgment given by Sir Anthony Mason NPJ: [2001] HKEC 704: June 2001
INSURANCE: EMPLOYEES COMPENSATION INSURANCE POLICY: INSUREDS: EMPLOYEES IN INSURED’S IMMEDIATE SERVICE: EXCLUSION OF LIABILITY TO EMPLOYEES OF INSURED’S CONTRACTORS: PRINCIPAL CONTRACTOR AND SUB-CONTRACTOR INSURED: WHETHER PRINCIPAL CONTRACTOR INSURED FOR INJURY TO EMPLOYEE OF SUB-CONTRACTOR CAUSED BY NEGLIGENCE OF EMPLOYEE OF PRINCIPAL CONTRACTOR

Brotherton and others v Aseguradora Colseguros SA and another
REINSURANCE CONTRACT: SERVICE OUT OF THE JURISDICTION: SETTING ASIDE: JURISDICTION: FORUM NON CONVENIENS : FACULTATIVE REINSURANCE CONTRACTS: CHOICE OF LAW CLAUSE: EXCLUSIVE JURISDICTION CLAUSES: GENERIC JURISDICTION CLAUSES: COLOMBIA : CIVIL PROCEDURE RULES: SERVICE ON AGENTS: OVERSEAS PRINCIPALS: STILL IN BUSINESS RELATIONS

HIH Casualty & General Insurance Ltd. V (1) Axa Corporate Solutions (Formerly Axa Reassurance SA) (2) New Hampshire Insurance Co

English High Court: Jules Sher QC: Unreported: 21 December 2001
COMMERCIAL: REINSURANCE: ESTOPPEL: PROMISSORY ESTOPPEL: CLEAR AND UNEQUIVOCAL REPRESENTATION REQUIRED: FOREGO RIGHTS: RELIANCE ON REPRESENTATION

Lloyds TSB General Insurance Holdings Ltd V Lloyds Bank Group Insurance
Abbey National Plc V Alan Godfrey Lee & Others

English Court of Appeal: Potter, Longmore LJJ, Lady Justice Hale: Unreported: 8 November 2001
INSURANCE POLICIES: CONSTRUCTION: PENSIONS MIS-SELLING: LARGE NUMBER OF CLAIMS: DEDUCTIBLE AGGREGATION CLAUSE: SERIES OF CLAIMS RESULTING FROM RELATED SERIES OF ACTS OR OMISSIONS: UNDERLYING CAUSE: COMMON ORIGIN

CGU International Insurance Plc v. Ashleigh Szabo & Others

English High Court: Toulson J.: Unreported: 6 November 2001
GLOBAL LIABILITY POLICY: ISSUED IN LONDON: OHIO LAW: EXTENSION OF COVER TO EMPLOYEE’S FAMILY: EXTENSION OF COVER TO UNINSURED DRIVERS: MEANING OF INSURED: GOVERNING LAW: JURISDICTION: NEGATIVE DECLARATIONS: COMITY


Tai Ping Insurance Co. Ltd. v. Tugu Insurance Co. Ltd

Hong Kong: Court of First Instance: Stone J: [2001]HKC 401: April 2001
INSURANCE: DOUBLE INSURANCE: WHETHER DOUBLE INSURANCE EXISTED: THE FOUR TESTS FOR DOUBLE INSURANCE: BASIS OF CONTRIBUTION: MAXIMUM LIABILITY BASIS: INDEPENDENT LIABILITY BASIS: EFFECT OF UNDER-INSURANCE: WHETHER UNDER-INSURANCE EXISTED

GAN Insurance Company v.Tai Ping Insurance Company 
English Court of Appeal: Mance and Latham LJJ; Sir Christopher Staughton; July 2001: 2001 CLC 1133
REINSURANCE: CLAIMS CO-OPERATION CLAUSE (‘CCC’): CCC A CONDITION PRECEDENT: INTERPRETATION OF ‘AND’: BREACH OF CLAUSE OVERRIDES ‘FOLLOW SETTLEMENTS CLAUSE: REINSURERS MUST NOT WITHHOLD SETTLEMENT APPROVAL UNREASONABLY

Great North Eastern Railway (GNER) v Avon Insurance Plc 
English Court of Appeal: Judgment delivered by Longmore LJ:[2001] Civ 780; May 2001
INSURANCE POLICY: APPLICABLE CONTRACTUAL TERMS: BUSINESS INTERRUPTION INSURANCE: EXCLUSION CLAUSES: WIDE OR NARROW VERSION: CHANGE INTRODUCED ON RENEWAL: NOT DRAWN TO UNDERWRITERS' ATTENTION: EXCEPTION: COVER FOR BREAKDOWN: REPUGNANCY

Glowrange Ltd v. CGU Insurance Plc
English High Court: QBD Commercial Court: Colman J:
Unreported: 26 June 2001
HULL FAILURE : UNEXPLAINED : TOTAL LOSS : INSTITUTE YACHT CLAUSES 1.11.85 : CAUSATION : INSURED PERIL : PERILS OF THE SEAS : VESSEL IN GOOD CONDITION : BALANCE OF PROOF : THE POPI M : THE MAREL : REASON FOR WATER INGRESS : SUMMARY JUDGMENT

Seashore Marine SA v. The Phoenix Assurance Plc and Others
English High Court, Queen’s Bench Division, Commercial Court: Aikens J.
May 2001: Unreported
HULL INSURANCE: LIABILITY TO PAY SALVAGE: INSTITUTE TIME CLAUSES (HULLS) 1.10.83: INSURED PERILS: PROXIMATE CAUSE: BURDEN OF PROOF

Everbright Commercial Enterprises Pte Ltd v. AXA Insurance Singapore Pte Ltd
the ‘Sirena I’

Singapore Court of Appeal; LP Thean JA; [2001] 2 SLR 316; April 2001
Case Note contributed by Ang & Partners, International Contributors for Singapore
MARINE INSURANCE: CARGO ALL RISKS INSURANCE COVER NOTE: ‘APPROVED VESSEL’: INSTITUTE CLASSIFICATION CLAUSE: CHARTERED VESSELS: HELD COVERED PROVISIONS: FACTS TO BE TAKEN INTO ACCOUNT

Scottish Equitable plc v. Derby
ILR 7 May 2001: March 2001: English Court of Appeal
MONEY PAID UNDER A MISTAKE OF FACT: EFFECT OF CARELESSNESS: DEFENCE OF CHANGE OF POSITION

Although this case was set in an insurance context, it concerned recovery of money paid under a mistake of fact. An insurance company had paid the holder of one of its pension policies some £172,000 more than he was actually entitled to. In defence to the claim for recovery of the money, the policyholder claimed that he had ‘changed his position’ in reliance on the payment and that it would not be equitable to require him to repay it. He also claimed that the carelessness of the insurance company – which had given rise to the overpayment in the first place – precluded it from recovering the overpayment.

The court held that carelessness was not a bar to the recovery of money paid under a mistake of fact. The court also held that the defence of ‘change of position’ was not available to the policyholder in respect of policy proceeds spent in reducing his mortgage, on the grounds that the mortgage would, in any event, have had to be repaid in accordance with its terms. The policyholder had not therefore acted to his detriment in paying it off early. The court did allow the defence in reference to some £9,700 which the policy holder had spent in making modest – but unvouched – improvements to his life-style. There was no issue regarding the remainder of the overpayment. This had been spent in procuring a pension from another pension provider, which was willing to unwind its position. In consequence, the policyholder would receive the pension to which he would have been entitled, had no mistake been made, and (presumably) the balance of the funds representing the overpayment would be returned to the original insurance company.

DMC Rating Category: Developed

 

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