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El. knyga: Insurance Disputes

Edited by (University of Reading; Duncan Cotterill), Edited by (The Supreme Court, UK), Edited by
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Written by an impressive team of specialist contributors, Insurance Dispute is the authoritative guide to litigation for both the insurer and the insured. Divided into two parts – principles of law and their practical use in individual types of insurance, it aims to identify and resolve questions such as: • How should the claimant handle a dispute? • Is the claim within the cover? • When should an insurer dispute cover? • What steps can an insurer take to deny cover? Updated and revised to include new chapters on marine insurance, the Financial Ombudsman Service and ATE insurance, Insurance Disputes is essential reading for anyone involved in insurance law and litigation.

Recenzijos

This both succeeds in both its writers and editors: the quality and reputation of its editors in insurance law doubtless made it easier to gather together such a fine squad of writers - Philip Rawlings for International Company and Commercial Law Review (2013)

Preface v
Outline table of contents vii
Contributors xxxix
Contributors' biographies xli
Table of cases
xlvii
Table of legislation
lxxxiii
PART 1 GENERAL CONTRACTS
Chapter 1 Binding Authorities And Line Slips
1 Introduction
1(4)
What are binding authorities and line slips?
1(2)
Who owes what duties and to whom?
3(2)
2 History of binding authorities
5(3)
The era of reports: Fisher and others
6(2)
3 Legislation governing binding authorities and coverholders
8(12)
European Union
9(1)
Financial Services and Markets Act 2000 and the FSA Handbook of Rules and Guidance
10(3)
Contract certainty
13(2)
Conflicts of interest
15(1)
Solvency II
16(4)
4 Lloyd's rules
20(26)
Structure
20(2)
Lloyd's Act 1982
22(1)
The current legislation
23(1)
Intermediaries Byelaw (No.3 of 2007)
24(2)
Underwriting Requirements (version 6), made 7 December 2005
26(2)
The Delegated Authority Minimum Standards
28(2)
Code of Practice---Delegated Underwriting, 21 December 2009
30(8)
Market Reform Contract (Binding Authority) Implementation Guide, version 1.4, October 2011
38(4)
Consequences of breaching Lloyd's rules
42(4)
5 Forms of binding authorities
46(18)
Model binding authority agreements
46(3)
LMA 3019
49(12)
TUPE
61(1)
Dispute resolution procedures in binders
62(2)
6 Some issues, some cases
64(14)
7 Line slips
78(12)
Why are they used?
78(4)
Legislation and rules applicable to line slips
82(2)
Line slip and off slip templates
84(3)
Consortia
87(1)
The legal effect of a line slip
88(2)
8 Binding authority and line slip disputes --- checklist
90
Chapter 2 The Lloyd's Market
1 Structure
2(16)
Lloyd's
2(1)
Members of Lloyd's
3(2)
Syndicates
5(4)
Members: financial requirements and trust funds --- the Lloyd's "chain of security"
9(5)
Broker market
14(4)
2 Open market business: the ordinary course
18(27)
Market Reform Contract and "contract certainty"
21(2)
Placing: market practice
23(5)
Competition law concerns
28(3)
The Zephyr
31(12)
Relationship between policy and slip
43(2)
3 Leaders and followers
45(13)
Leaders and followers: General Underwriters Agreement
49(4)
Leaders' duties of care in placing process
53(2)
Leaders and followers: disclosure and representations by the broker to the leader
55(3)
4 Claims procedure
58(16)
2006 Claims Scheme
63(2)
2010 Pilot Scheme
65(7)
Claims Management Principles and ICOBS
72(1)
Other claims settling authorities
73(1)
5 Accounting, payment and collection of premiums and claims
74(2)
6 Responsibilities of Lloyd's brokers
76(6)
Lloyd's brokers: dual capacity
77(3)
Payments to brokers
80(2)
7 "Lloyd's litigation"
82
Case management
84(1)
LMX
85(1)
Long tail cases and duties of managing agents and members' agents generally
86(3)
Portfolio selection
89(1)
First past the post?
90(1)
Duties of Lloyd's
91(1)
Cash calls, deposit drawdowns and Central Fund
92(2)
PTF litigation
94(1)
Reconstruction and Renewal: Lloyd's powers
95
Chapter 3 Insurable Interests
1 Rationale
3(3)
2 The statutory provisions
6(5)
The Life Assurance Act 1774
7(1)
The Marine Insurance Act 1906
8(1)
The Gambling Act 2005
9(2)
3 What is an insurable interest
11(12)
4 Who must have the insurable interest
23(2)
5 When must the insurable interest exist
25(1)
6 The absence of an insurable interest
26
Chapter 4 Defences
1 Defences external to the policy
2(84)
Statutory invalidity
2(1)
Insurance Companies Act and Regulations
2(1)
How insurers obtain authorisation
3(4)
Effect of failure to obtain statutory authorisation
7(3)
Other circumstances of illegality
10(1)
Category 1
11(1)
Category 2
12(2)
Category 3
14(4)
Category 4
18(1)
Category 5
19(1)
Invalidity defence and arbitration clauses
20(4)
Non-disclosure and misrepresentation
24(1)
Concept of utmost good faith
24(1)
Marine Insurance Act 1906, ss. 17-20
25(1)
Applicability to non-marine insurance
26(2)
Good faith must be observed by insurer as well as insured
28(1)
Facts of the Gemstones case
29(1)
Judgment at first instance
30(1)
Decision of the Court of Appeal
31(1)
House of Lords' decision
32(1)
Implications for insureds
33(4)
What is material for an insurer to disclose?
37(1)
Other aspects of insurers' duty of good faith
38(4)
Duration of duty of utmost good faith
42(3)
Misrepresentation
45(1)
What is misrepresentation?
45(2)
Misrepresentation must be material
47(1)
Necessity for inducement
48(1)
Remedy for misrepresentation
49(1)
Procedure for procuring avoidance
50(2)
Non-disclosure
52(1)
What disclosure is an insured required to make?
52(4)
Duration of duty to disclose and not to misrepresent
56(1)
Renewals
57(3)
Facts not disclosed must be material
60(1)
Proving inducement
61(1)
Does a material misrepresentation or non-disclosure give rise to a presumption of inducement?
62(3)
Remedy for non-disclosure
65(1)
Materiality
66(1)
Definition of material fact
66(3)
Pan Atlantic v Pine Top
69(1)
Avoidance
70(1)
Avoidance the only remedy for non-disclosure
70(1)
Damages as a remedy for misrepresentation?
71(4)
The court's discretion with regard to damages
75(1)
Highlands v Continental
76(1)
Damages not available for innocent misrepresentation
77(1)
Return of premium and claims on avoidance
78(1)
Loss of right of avoidance
79(2)
Modification of law by insurance practice in relation to consumers and small businesses---the Financial Ombudsman Service
81(2)
Reform
83(3)
2 Defences intrinsic to the policy
86(19)
Policy construction---claim not covered
86(1)
Breach of warranty
87(1)
Warranties defined: essential characteristics
87(1)
Warranties in general contract law
87(1)
Warranties in insurance contrasted
88(1)
Creation of warranties
89(2)
Section 33 of the Marine Insurance Act
91(1)
Consequences of breach of warranty
92(2)
The Good Luck
94(1)
Facts of the case
95(1)
Judgments
96(1)
Effect on premium paid and received
97(1)
Reform
98(1)
Breach of other policy terms
99(1)
"Innominate" terms
99(3)
Conditions precedent
102(1)
Suspensive conditions
103(2)
3 Defences arising from the presentation of claims
105(63)
Procedures relating to notification of claims
105(2)
No express notification clause
107(1)
Breach of duty of good faith
108(2)
An implied term?
110(1)
Express clause---how quickly must the insured notify the insurer?
111(1)
Specified periods
112(1)
"Immediate" notice
113(2)
Notice "as soon as reasonably practicable"
115(2)
What facts must the insured notify?
117(1)
Liability policies
118(1)
Property damage policies
119(1)
Professional indemnity policies
120(1)
Reinsurance contracts
121(1)
What is the effect of breach of a notification clause?
122(1)
Little effect unless clause interpreted as a condition precedent
122(4)
When will the courts interpret a notification clause as a condition precedent?
126(3)
To whom should notice be given?
129(4)
Notice from another source
133(2)
Good faith in relation to claims
135(2)
Self-induced loss
137(3)
Fraud in making the claim
140(1)
Difficulty of proof
140(1)
Substantial falsehood: Can fraud be distinguished from exaggeration of claim?
141(2)
Materiality of falsehood
143(1)
Remedy for fraud
144(1)
Express policy provisions relating to fraud
145(1)
Does the continuing duty of good faith exist?
146(2)
The Litsion Pride
148(2)
The Captain Panagos
150(2)
Further cases
152(3)
Scope of the duty
155(1)
Bucks Printing Press v Prudential---reckless misrepresentation
155(1)
The Star Sea---only fraud will do
156(1)
Duration of the duty
157(2)
The effect of fraud on claims
159(4)
Commentary on the continuing duty of good faith
163(3)
Reform
166(2)
4 Aggregation of claims
168(35)
"Accident"
171(1)
"Occurrence"
172(5)
"Loss"
177(1)
"Claim"
178(5)
"Originating cause"
183(4)
"Event"
187(6)
"One person" or "sole judge" clauses
193(6)
Aggregation by reference to an aggregate extension clause
199(4)
5 Checklist
203
Chapter 5 Preservation Of Defences
1 General principles
1(10)
Introduction
1(2)
Waiver and estoppel distinguished
3(1)
Waiver by election
4(1)
Waiver
4(2)
Waiver by estoppel
6(1)
Estoppel
6(4)
Affirmation
10(1)
2 Claims by insured against insurers: Particular defences that can be lost
11(21)
Common defences available to insurers
11(1)
The Insurance: Conduct of Business Sourcebook
12(1)
Examples of breach of condition and waiver in each case
13(1)
Notice of claim
13(1)
Giving notice of claim---time and place
14(1)
Sending of a claim form
15(1)
Demanding proofs of loss in accordance with policy conditions
16(2)
Does denial on one ground only constitute waiver of subsequent performance of policy conditions by the insured?
18(1)
Following procedures other than those in policy
19(2)
Insurer acting under powers given by the policy
21(2)
Notices of intended prosecution
23(1)
Waiver by conduct of claim
24(1)
Conduct by insurer of insured's defence
25(3)
Breach of warranty
28(4)
3 Consequences of insurer's conduct
32(6)
General consequences of insurer's conduct
32(1)
Can it create a new right?
33(1)
Liability of insurer in maintenance
34(1)
Can an insurer waive illegality of subject-matter?
35(1)
Sums paid by mistake, and recovery thereof
36(1)
Potential liabilities to third parties
37(1)
4 Losing the right to avoid---for non-disclosure and misrepresentation
38(18)
What is affirmation?
39(2)
Knowledge
41(6)
Conduct of the insurer must be consistent with the choice
47(1)
Silence of the insurer
48(2)
Insurer's delay
50(1)
Acts of affirmation
51(1)
Reliance upon an arbitration clause in a policy
52(1)
Making use of inspection of records clauses
53(1)
The effect of silence and inaction on the part of insurers
54(2)
5 How an insurer can lose rights to defend prior to a claim arising
56(12)
Limitation of scope of enquiries by underwriters
56(4)
The nature of questions asked in the proposal form
60(1)
By agreement as to the person giving disclosure
61(1)
Major commercial insured---agreement on who is agent to receive knowledge on behalf of the insured---the "agent to know"
61(1)
Format of proposal form
62(1)
Non-disclosure clauses
63(2)
Imputed, actual and constructive knowledge by insurers of information when being tendered a risk
65(1)
Standards in personal insurances
66(1)
Adherence to ICOBS/COBS
66(1)
Financial Services Ombudsman's (FOS) practice
67(1)
6 The position of the agent---broker, loss adjuster, solicitor etc.
68(8)
Action or inaction on the part of an agent can lead to waiver, estoppel or affirmation
68(4)
Who represents the insurer's mind?
72(2)
Loss adjusters
74(2)
7 What steps can be taken to protect the insurer's or insured defendant's position
76
Reservation of rights by the insurer
76(5)
General procedures
81(1)
Joinder of insurer at insurer's own request as defendant to proceedings brought by a third party against an insured
81(2)
Negative declaratory relief
83
Chapter 6 Construction Of The Policy
1 Introduction
1(1)
2 Identifying the relevant materials
2(25)
The policy
3(4)
Market Reform Contract/Slip
7(6)
The proposal
13(4)
The insurer's prospectus/illustration/advertisement
17(3)
Documents incorporated by reference
20(5)
Line slips
25(1)
Endorsements
26(1)
3 The approaches to construction
27(14)
Judicial precedent
29(3)
Technical meaning
32(2)
Ordinary meaning
34(2)
Contextual meaning
36(2)
Contra proferentem
38(3)
4 Adopting the right approach
41(48)
The application of judicial precedent
44(11)
Words having a technical meaning
55(8)
Ascertaining the ordinary meaning
63(6)
The contextual approach
69(13)
Construction contra proferentem
82(4)
Rectification
86(1)
Regulation of terms
87(2)
5 Summary
89
Chapter 7 Loss, Causation And Burden Of Proof
1 The loss
1(13)
The nature of a loss claimable under an indemnity policy
1(7)
When must the loss occur?
8(4)
Physical damage and deprivation
12(2)
2 Causation
14(10)
Loss must be proximately caused by an insured peril
14(1)
The meaning of proximate cause
15(3)
Two proximate causes
18(3)
Identifying the proximate cause in a sequence of events
21(2)
The relevance of negligence or wilful misconduct on the part of the insured
23(1)
3 The burden of proof
24
The burden of proof generally
24(2)
The burden of proof in relation to exceptions
26
Chapter 8 Intermediary Responsibility
Introduction
1(1)
1 Definition and classification
2(7)
2 Responsibilities owed by intermediaries
9(94)
The basic duty
9(2)
Selecting a suitable insurer
11(8)
The payment of the premium
19(1)
Lien over the policy
20(1)
Right to commission
21(4)
Acting on whose behalf? A danger area?
25(8)
Reinsurance and the broker
33(1)
What is the extent of the duty of care owed by the intermediary?
34(10)
Responsibilities may vary from client to client
44(7)
A guiding principle for determining professional negligence
51(1)
The problem of binding authorities
52(3)
Responsibilities in a complex commercial situation
55(3)
A continuing duty of care
58(1)
Responsibility and claims handling
59(2)
Responsibility and record keeping
61(4)
Is it possible for the intermediary to come under a duty of care and thus owe responsibilities to a third party?
65(2)
A limitation on the duty to third parties
67(1)
If an intermediary is in breach of his obligations to his client can it be argued that the client is contributorily negligent?
68(4)
Involvement of more than one intermediary---the producing and the placing broker
72(10)
Causation and liability
82(7)
The importance of section 19 of the Marine Insurance Act 1906 on liability
89(5)
Negligence and limitation
94(6)
Will compulsory professional indemnity insurance mean that the claimant will recover his damages?
100(3)
3 Codes of conduct
103(13)
The Codes of Conduct/Practice and ICOBS for insurance intermediaries
104(1)
FSA and the Insurance Conduct of Business Rulebook (ICOBS)
105(4)
Independent intermediaries and the employee/agent of insurers
109(1)
Agents acting beyond scope of authority
110(1)
Helping to complete proposal forms
111(5)
4 The Financial Ombudsman Service and intermediaries
116(1)
5 Unfair Terms in Consumer Contracts Regulations 1999
117(2)
6 The Law Commission 2006
119
Chapter 9 Subrogation
1 The principles of subrogation
1(15)
Legal basis
1(3)
Rights acquired against third parties
4(5)
Obligations between underwriters and the assured
9(1)
Subrogation distinguished from abandonment
10(3)
Subrogation distinguished from assignment
13(3)
2 The extent of the right of subrogation
16(11)
Claims in tort
16(1)
Claims in contract
17(4)
Statutory claims
21(1)
Claims for discretionary remedies---interest and costs
22(5)
3 Limits on the right of subrogation
27(14)
Underwriters can recover no more than the amount of their indemnity
27(2)
Underwriters' rights are no more extensive than those of the assured
29(9)
Waiver by agreement
38(3)
4 Joint and composite insurance
41(40)
Joint insurance
42(1)
Composite insurance
43(3)
Composite property insurance---circuity of action/"one" assured/implied term in the policy/implied term in the underlying contract
46(1)
Circuity of action
46(3)
"One" assured
49(1)
Implied term---insurance policy
50(1)
Implied term---underlying contract between the parties
51(5)
Breaches by the "negligent" co-assured
56(3)
Is the participant a "co-assured"?
59(1)
Stone Vickers v Appledore
59(4)
National Oilwell v Davy Offshore
63(4)
Insurable interest of co-assured
67(1)
The Contracts (Rights of Third Parties) Act 1999
68(1)
Scope of the cover
69(1)
National Oilwell v Davy Offshore
69(3)
Waiver of subrogation rights clauses
72(1)
Mark Rowlands Ltd v Berni Inns Ltd
73(2)
Checklist---practical points for insurers relating to "co-assureds"
75(1)
Scope of cover
75(1)
Declarations re future co-assureds
76(1)
Contracts between co-assureds
77(1)
Waiver of subrogation rights clauses
78(1)
Subrogated claims
79(2)
5 Exercising the right of subrogation
81(32)
Control of the recovery
81(4)
The costs of the recovery
85(2)
Protecting a recovery before cover is confirmed
87(4)
Subrogating against the insurers of an insolvent third party
91(9)
Subrogating against compulsory motor insurers
100(6)
The Uninsured Drivers Agreement 1999
106(4)
Untraced Drivers Agreement 2003
110(3)
6 The Application of recovery monies
113(19)
The top-down principle
113(9)
The application of recovery monies in the case of double insurance
122(1)
The application of recovery monies in the case of underinsurance
123(5)
Underwriters' proprietary rights in respect of recovery monies
128(4)
7 The subrogation agreement
132
Chapter 10 Double Insurance
1 When does double insurance occur?
2(18)
Introduction and definition
2(5)
The same assured
7(1)
The same subject-matter
8(2)
The same interest
10(3)
The same peril or risk
13(3)
Policy validity and coverage
16(2)
Checklist
18(2)
2 The rights of the assured
20(12)
The principle
20(2)
Non-contribution and excess clauses
22(2)
Conflicts where there are multiple non-contribution or excess clauses
24(3)
Rateable contribution clauses
27(3)
Precedence between non-contribution, excess and rateable contribution clauses
30(1)
Checklist
31(1)
3 The rights of insurers to contribution
32(18)
The principle
32(2)
The circumstances which give rise to the right to contribution
34(1)
The time at which double insurance must exist for contribution
35(2)
Calculation of an insurer's liability for contribution
37(2)
Maximum liability
39(1)
Independent liability
40(1)
Common liability
41(7)
Checklist
48(2)
4 The foreign element
50
Categorisation of the problem
50(2)
Checklist
52
Chapter 11 Insurance Litigation
1 The relationship between the legal adviser and the insurer, the assured and third parties
1(32)
Role of the legal adviser
1(1)
Retainer
1(1)
The scope of the retainer
1(7)
The contractual relationship between the solicitor, the assured and the insurer
8(2)
Temination of the retainer
10(2)
Problems facing the legal adviser acting for more than one party
12(1)
Conflicts of interest
12(1)
The solicitor's general duty not to act for parties with conflicting interests
12(2)
Conflict arising between two or more current clients
14(5)
Consequences of an existing conflict
19(3)
Confidentiality
22(1)
The solicitor's general duty of confidentiality
22(3)
Acting for more than one client jointly
25(8)
2 Procedural aspects of insurance litigation
33(111)
Starting a claim and statements of case
38(3)
Adding parties to proceedings
41(1)
General principle
41(4)
Practical issues
45(5)
Adding parties to proceedings in the context of insurance disputes
50(2)
Representative actions and Group Litigation Orders (GLO)
52(2)
Assignment
54(8)
Effect of assignment on insurance litigation
62(1)
Insurance insolvency
63(1)
The Financial Services Compensation Scheme
63(1)
Circumstances in which the assured or third party may seek recovery from the FSCS
64(5)
Circumstances in which the FSCS's liability to the claimant is reduced
69(1)
How much compensation will a claimant be offered?
70(1)
Assignment of rights to the FSCS
71(2)
Disclosure
73(1)
Introduction
73(3)
The solicitor's and client's obligations on disclosure
76(1)
The solicitor's obligations
76(2)
The party's obligations
78(4)
"Documents"
82(2)
Relevance
84(2)
Scope of disclosure
86(3)
Inspection of documents
89(2)
Disclosure before action or by a non-party
91(4)
Failure to comply with disclosure
95(1)
Privilege
96(2)
Legal advice privilege
98(2)
Litigation privilege
100(1)
Waiver of privilege
101(6)
Privilege against self-incrimination
107(1)
Public interest immunity
108(1)
"Without prejudice" statements
109(4)
Relevance of privilege to insurance litigation
113(1)
Use of witness evidence in insurance litigation
114(4)
Instruction of experts
118(1)
Circumstances in which it is appropriate to instruct an expert in insurance litigation
118(2)
When and how to instruct an expert
120(3)
The role of the expert in insurance litigation
123(2)
Factors relevant to choosing an expert to give evidence in insurance litigation
125(1)
Procedure governing the use of expert evidence at trial
126(3)
Expert evidence given at trial
129(2)
Alternative dispute resolution ("ADR")
131(3)
Case management
134(4)
Case management in the Commercial Court
138(3)
The trial
141(3)
3 Settlement/compromise
144(14)
Settlement agreements
144(1)
The effect of settlement
144(3)
Effect of settlement payments between insurer and assured on subsequent litigation with third parties
147(1)
Circumstances in which the settlement may be avoided
148(1)
Undue influence
148(2)
Mistake
150(3)
Non-disclosure
153(2)
Economic duress
155(1)
Conditional payments
156(1)
Ex gratia payments
157(1)
4 Checklist of insurance litigation points
158
Chapter 12 After-The-Event Insurance
1 Comparison with before-the-event insurance
1(11)
Recoverability
9(3)
2 Government proposals
12(12)
The consultation paper
18(3)
Clinical negligence
21(3)
3 The legislation
24(14)
The effects
25(5)
Membership organisations
30(2)
Qualified One Way Costs Shifting (QOCS)
32(6)
4 The typical policy
38(9)
Underwriting principles
43(2)
Changing the basket
45(2)
5 Regulatory issues
47(16)
Notice of funding
47(2)
Relief from sanctions
49(3)
The arguments
52(3)
Judgment
55(6)
Defamation cases
61(1)
Demands and needs statement
62(1)
6 Limitations to ATE
63(31)
Challenging the premium
65(1)
Part premium
66(2)
Unreasonably high premiums
68(11)
Staged premiums
79(3)
The different stages
82(2)
Liability admitted prior to policy inception
84(3)
Deafness Compensation Scheme
87(2)
Limitation
89(5)
7 Declaring an Interest
94(84)
"CFA --- Lite"
103(4)
Solicitors' Rule 2 letters
107(9)
Adequacy of Insurance
116(1)
Termination of Agreement
117(2)
Costs capping
119(3)
ATE as security for costs
122(3)
Disclosure
125(1)
Level of premium
126(2)
Commission
128(2)
Publication proceedings
130(2)
Self-insurance
132(2)
Indemnifying client re adverse costs
134(44)
8 Privy Council appeals and after-the-event insurance
178
Costs capping orders
182
Chapter 13 The Financial Ombudsman Service
1 History and formation of the FOS
1(4)
IOB and FOS
1(1)
DISP and ICOBS
2(1)
The FOS as an organisation
3(1)
Aims and values
4(1)
2 The workings of the FOS
5(25)
Jurisdiction
5(1)
Relevant complaints
6(1)
Eligible complainants
7(1)
Intermediaries
8(1)
Group schemes
9(1)
Claims management services
10(1)
Legal proceedings and commercial judgement
11(1)
Funding: levies and case fees
12(1)
Insurers' complaints handling obligations
13(1)
Time limits
14(3)
The FOS complaints process
17(1)
Technical advice desk
17(1)
Customer Contact Division
18(1)
Adjudicators
19(1)
Ombudsman
20(1)
Oral hearings
21(1)
Dismissal without consideration of merits
22(1)
The independent assessor
23(1)
Referral to court
24(1)
FOS decision-making: fair and reasonable
25(1)
Judicial review
26(1)
Dealings with customers while the FOS considers the complaint
27(1)
The relationship between the FOS and the FSA
28(2)
3 Awards and interest
30(11)
Money awards
30(1)
Limits on money awards
31(1)
Distress and inconvenience
32(1)
Pain and suffering
33(1)
Damage to reputation
34(1)
Complainant's costs
35(1)
Other awards/directions
36(1)
Interest
37(1)
Enforceability of awards
38(1)
The Financial Service Compensation Scheme ("FSCS")
39(1)
Is compensation taxable
40(1)
4 Evidence
41(8)
Requests for information
42(1)
Admissibility
43(1)
Standard of proof
44(1)
Confidentiality
45(1)
Recordings
46(1)
Oral evidence
47(1)
Expert evidence
48(1)
5 Policy construction
49(8)
Precedent
49(1)
Ordinary and natural meaning within the factual or contextual matrix
50(1)
Technical terms and definitions
51(1)
Reasonable construction
52(1)
Contra proferentem
53(1)
Onerous and unfair terms
54(3)
6 Sales conduct
57(4)
7 Travel
61(3)
8 Life and personal accident
64(8)
Significant onerous terms
64(1)
Experimental treatment
65(1)
Mental illness
66(1)
Approved list of doctors or hospitals
67(1)
Pre-existing medical conditions
68(1)
Concurrent causes of loss
69(1)
"Any occupation" cover against disability
70(1)
Calculation of benefits
71(1)
9 Household insurance
72(10)
Storm
72(1)
Flood
73(1)
Subsidence
74(2)
Unoccupied
76(1)
Preventative damage
77(1)
Buildings or contents cover
78(1)
Double insurance
79(1)
Accidental damage
80(1)
Wear and tear
81(1)
10 Keys in vehicles/unattended vehicles
82(5)
Compliance with a sales/marketing code
82(1)
Recklessness
83(1)
Unattended vehicle exclusion
84(3)
11 Measurement of loss
87(5)
Repair and reinstatement
88(1)
Replace or offer a cash settlement
89(1)
Vehicle valuation
90(1)
Abandonment and salvage
91(1)
12 Premiums
92(2)
13 Fraud
94(4)
Proof of fraud
95(1)
Immaterial fraud
96(1)
Costs
97(1)
14 Non-disclosure and misrepresentations
98(14)
The duty of disclosure
98(1)
Remedies for non-disclosure
99(1)
Fraudulent and deliberate non-disclosure
100(1)
Innocent non-disclosure
101(1)
Reckless non-disclosure (without care)
102(1)
Inadvertent non-disclosure (negligent)
103(2)
Non-disclosure by an intermediary
105(1)
Distress and inconvenience
106(1)
Previous loss becoming spent
107(1)
Renewals
108(1)
Insurers may refuse to renew
109(1)
Continuing duties of disclosure after inception
110(1)
New terms on renewal or on change of insurer
111(1)
15 Breach of warranties and other terms
112(3)
Causal connection for consumers
112(1)
Basis of the contract clauses
113(1)
Notification of claims conditions
114(1)
16 Legal expenses insurance
115(2)
17 Conclusion
117
Chapter 14 Jurisdiction And Arbitration
1 Jurisdiction of the English courts
3(24)
When can an insurer be sued as of right in England?
6(1)
Jurisdiction at common law: presence
6(1)
United Kingdom companies
7(1)
Overseas companies
8(1)
Jurisdiction under the Brussels Regulation and the Lugano Convention
9(1)
Domicile
10(4)
Special jurisdiction
14(1)
When can a policyholder, insured or beneficiary be sued as of right in England?
15(1)
Jurisdiction at common law: presence
15(1)
United Kingdom and overseas companies
16(1)
Individuals
17(1)
Partnerships
18(1)
Jurisdiction under the Brussels Regulation and the Lugano Convention
19(1)
Domicile
20(3)
Special jurisdiction
23(1)
When will the English court give permission for proceedings to be served out of the jurisdiction on an insurer or an insured?
24(3)
2 Challenging the jurisdiction of the English courts
27(14)
Lis pendens in another member state
29(2)
Are the courts of a different member state first seised?
31(1)
Do the two sets of proceedings involve the same parties?
32(1)
Do the two sets of proceedings involve the same cause of action?
33(1)
Regulation jurisdiction
34(2)
Common law jurisdiction
36(5)
3 Stay of English proceedings
41(17)
When does the discretion to stay arise?
41(3)
Related actions: article 28
44(1)
Foreign exclusive jurisdiction clauses
45(4)
Lis alibi pendens in non-member states
49(3)
The appropriate forum
52(1)
Is there another available forum?
53(1)
Is the available forum clearly or distinctly more appropriate?
54(2)
Would it be unjust to stay the proceedings in favour of the natural forum?
56(2)
4 Challenging the jurisdiction of foreign courts
58(5)
5 Arbitration
63
Is there an arbitration agreement?
65(2)
Is the arbitration agreement enforceable?
67(1)
Stay of proceedings
67(2)
Anti-suit injunction
69(4)
How to commence an arbitration
73
Chapter 15 Applicable Law
1 Overview
1(2)
2 The common law
3(8)
3 The modern regimes
11
Introduction
11(3)
Where a risk is situated
14(1)
Contracts made before 17 December 2009
14(7)
Contracts entered into on or after 17 December 2009
21(3)
Where the risk is situated outside the EU
24(1)
Contracts not subject to the Rome I Regulation
25(3)
Applicability of the Rome I Regulation
28(1)
Rome Convention: choice of law
29(3)
Rome Convention: presumption as to governing law in absence of choice
32(4)
The Rome Convention: consumer contracts
36(4)
Limitations on choice under the Rome Convention
40(3)
Rome Convention: assignment
43(1)
The Rome I Regulation
44(1)
Rome I Regulation: "large risks"
45(4)
Rome I Regulation: risks which are not "large risks" and which are outside the EU
49(2)
Rome I Regulation: consumer contracts
51(2)
Insurance of risks situated in the territory of EEA states
53(1)
Applicable rules
53(7)
Contracts of general insurance entered into before 17 December 2009
60(1)
Choice of law: large risks
61(1)
Choice of law: other contracts
62(1)
Choice of law: to be demonstrated with reasonable certainty
63(1)
Presumption applicable in the absence of choice of law
64(1)
General provisions
65(1)
Contracts of life assurance and other long-term insurance entered into before 17 December 2009
66(2)
Contracts entered into on or after 17 December 2009
68(1)
Applicable law: large risks
69(3)
Choice of law: other contracts including life assurance
72(1)
Choice of law: to be made expressly or clearly demonstrated
73(1)
Presumption applicable in the absence of choice of law
74(1)
Compulsory insurance
75(1)
General provisions
76(3)
Reinsurance
79
Chapter 16 Third Party Risks
1 What are third party risks?
1(1)
2 What is a "loss" under a liability policy?
2(23)
The general rule
2(4)
Nature of legal liability
6(4)
Limitation of actions
10(3)
Mitigation of loss
13(2)
Illegality
15(10)
3 Forms of liability insurance
25(15)
Claims made and losses occurring policies
25(4)
The class of liability insured
29(8)
Co-insurance
37(3)
4 Problematic terms in liability policies
40(22)
Notice of loss clauses
40(9)
Aggregate limits
49(2)
Drop down clauses
51(1)
Admission of liability
52(1)
Reasonable care provisions
53(2)
Duty to co-operate
55(7)
5 Defence and settlement of claims
62(16)
Contractual obligations
62(1)
Conduct of the defence by the insurer
63(2)
Refusal to defend
65(1)
Liability for defence costs
66(3)
Allocation of defence costs
69(2)
Liability for the claimant's costs
71(7)
6 Third party rights against insurers
78
The problem of third party claims
78(1)
Statutory transfer of rights
79(16)
The right to information
95(3)
Competing claims
98(1)
Territorial scope
99(2)
Arbitration
101(1)
Legal Services Commission
102
PART 2 SPECIFIC CONTRACTS
Chapter 17 Life Assurance
1 Introduction
1(1)
2 Areas of dispute regarding life assurance policies
2(56)
Suicide
2(10)
Unlawful killing and the Forfeiture Act 1982
12(6)
Non disclosure
18(6)
Disclosure and the Statement of Long-Term Insurance Practice
24(2)
Effects of non-disclosure
26(3)
Misrepresentation
29(1)
Proposals for reform
30(4)
Insurable interest
34(9)
The effects of lack of an insurable interest
43(2)
Modern practice
45(3)
Proposals for reform
48(3)
Advertising and mis-selling issues
51(4)
Other non-insurance aspects
55(3)
3 Discharge of the life assurance contract
58(40)
Agreement
59(1)
Novation
60(1)
Breach
61(2)
Performance
63(2)
Assignments
65(8)
Trustees in bankruptcy and mortgagees
73(2)
Payment to third parties
75(1)
Mode of discharge
76(6)
Statute of limitation
82(2)
Payment into court
84(3)
Loss of policy
87(1)
Proof of death
88(5)
No direct evidence of death
93(5)
4 Fuji v Aetna
98(7)
5 Financial Ombudsman Service
105(7)
6 Unfair Contract Terms Directive
112
Chapter 18 Personal Accident
1 Introduction
1(20)
The claimant
2(1)
Is it the insured?
3(1)
If not, is he named?
4(1)
Does he have an insurable interest?
5(1)
Summary
6(1)
The policy
7(1)
What is the insured event?
8(1)
What is covered?
9(1)
What is excluded?
10(2)
Summary
12(1)
The cause of the injury
13(1)
The meaning of "cause"
14(1)
The meaning of "sole" cause
15(1)
Summary
16(1)
The distinction between the cause and the result
17(1)
Was the cause or the result accidental?
18(1)
The importance of causation
19(1)
Summary
20(1)
2 The meaning of "accident"
21(31)
Intentional injury
22(1)
The intention of the insured
23(1)
When the insured does not know what he is doing
24(1)
When the explanation for the injury is improbable
25(1)
The intention of some other person
26(1)
Summary
27(1)
Injury not intended but likely to result
28(1)
An intentional act leading to a natural and probable injury
29(2)
An intentional act leading to an unforeseeable injury
31(1)
An intentional act performed with too much effort
32(1)
Summary
33(1)
Drugs and alcohol
34(1)
Intentional consumption resulting in injury
35(1)
Intentional consumption implicated in the events leading to the injury
36(1)
Exclusion clauses referring to alcohol or drugs
37(1)
Summary
38(1)
Crime and public policy
39(1)
What is illegality?
40(1)
What is public policy?
41(1)
When does illegality or public policy prevent payment under the policy?
42(1)
Summary
43(1)
Can disease be accidental?
44(1)
Disease occurring naturally
45(1)
Disease caused by an unintended act
46(1)
Summary
47(1)
Negligence
48(1)
Does negligence by the insured prevent recovery under the policy?
49(1)
The effect of recklessness
50(1)
Summary
51(1)
3 The meaning of "injury"
52(13)
The definition of injury
53(1)
The meaning of "bodily injury"
54(1)
Psychiatric injury
55(1)
Disease or injury?
56(1)
Summary
57(1)
What is permanent disablement?
58(1)
What is permanent disablement and how bad is it
59(2)
What does "any" profession or occupation mean?
61(1)
What if the insured can do some work?
62(1)
What does "usual" profession or occupation mean?
63(1)
Summary
64(1)
4 The role of doctors
65(32)
The purpose of medical evidence
66(1)
The diagnosis
67(1)
Causation
68(1)
Was the injury caused by the events alleged to have led to it?
69(1)
Were there other contributory causes?
70(1)
The extent of the disability?
71(1)
Is it permanent?
72(1)
What does the disability prevent the claimant from doing?
73(1)
Summary
74(1)
Choosing a doctor
75(1)
The correct specialism
76(1)
Orthopaedics
77(1)
Neurology and neurosurgery
78(1)
Ophthalmology
79(1)
Otorhinolaryngology
80(1)
Rheumatology
81(1)
Pathology
82(1)
Occupational medicine
83(1)
The need for an authoritative opinion
84(1)
Objectivity
85(1)
Summary
86(1)
Instructing a doctor
87(1)
The importance of detailed instructions
88(1)
Deciding on the questions
89(1)
Physical injury, or loss of senses, specified in the policy
90(2)
Injury resulting in permanent disablement but not specified in the policy
92(2)
Asking for the answers
94(1)
Medical records
95(1)
Summary
96(1)
5 Disputes
97(17)
Means of dispute resolution
98(1)
Internal consideration
99(1)
Arbitration
100(1)
Financial Services Ombudsman Service
101(1)
Court proceedings
102(1)
Summary
103(1)
Evidence
104(1)
How much evidence is necessary to prove a claim?
105(1)
Gathering evidence from the insured
106(1)
Medical evidence
107(1)
Other supporting evidence
108(1)
Witnesses to the event
109(1)
Employers
110(1)
Medical records
111(1)
Surveillance
112(1)
Summary
113(1)
6 A guide to considering a claim
114
Chapter 19 Commercial Property Insurance
1 Introduction
1(10)
2 Physical loss and damage to insured property
11(3)
3 Is all risks property insurance really different?
14(2)
4 The burden of proof
16(10)
5 The burden of proof and exclusion clauses
26(3)
6 Typical exclusions
29(44)
The "inevitable" exclusions
30(6)
Industrial peril exclusions
36(14)
Natural peril exclusions
50(7)
War and allied perils
57(13)
Terrorism
70(3)
7 Other exclusions
73(2)
8 Insurer policy protection in all risks property policies
75(55)
Increase in risk at common law
75(4)
Increase in hazard clauses
79(10)
Continuing warranties in proposal forms
89(9)
Reasonable care clauses
98(15)
Fire protection clauses and security protection clauses
113(4)
Fraud in commercial property insurance claims
117(13)
9 Business interruption
130
Introduction
130(3)
The principles
133(1)
Turnover
134(1)
(I) Variables
135(2)
(II) Standing Charges
137(1)
(III) Payroll
138(1)
(IV) Net Profit
139(2)
Gross profit
141(5)
Other clauses
146(1)
Indemnity period
146(1)
Material damage proviso
147(6)
Increase in cost of working
153(3)
Savings clause
156(1)
Other circumstances
157(1)
Alternative trading
158(1)
Other extensions
159(2)
Increase in cost of working
161(1)
Additional increase in cost of working
162(1)
Advance profits
163
Chapter 20 Insurance Of Goods In Transit
1 Introduction
1(3)
2 Why cargo insurance is needed
4(2)
3 Insurance of cargo sold CIF or FOB
6(6)
Who is responsible for cargo insurance?
6(1)
Availability of appropriate insurance
7(1)
Seller's and buyer's interest
8(4)
4 One policy covering several modes of transport
12(1)
5 Facultative policy or open cover
13(6)
6 The application of the Marine Insurance Act 1906
19(9)
7 The Institute Cargo Clauses
28(28)
Risks and exclusions
30(7)
The transit clause: clause 8
37(2)
Attachment of cover
39(2)
Continuation of cover
41(4)
Termination of cover
45(2)
Delay and deviation
47(2)
Change of voyage
49(4)
Law and practice
53(1)
Extending or restricting cover provided by the ICC
54(2)
8 Institute Classification Clause
56(6)
9 Cargo ISM Endorsement (JC 98/019) and Cargo ISM Forwarding Charges Clause (JC 98/023)
62(5)
10 Cargo ISPS Endorsement (JC 2004/050) and Cargo ISPS Forwarding Charges Clause (JC 2004/050b)
67(1)
11 Subject-matter insured
68(1)
12 Voyage or insured transit
69(1)
13 Insured value and insurable value
70(3)
14 Sum insured
73(2)
15 Premium
75(1)
16 Certificates of insurance
76(7)
17 Assignment
83(3)
18 Contracts (Rights of Third Parties) Act 1999
86(3)
19 Claims
89(6)
20 "Goods in transit" insurance
95
Chapter 21 Marine Insurance
1 Introduction
1(1)
2 Insurable interest
2(10)
Wager policies
3(3)
Definition of insurable interest
6(4)
When interest must attach
10(2)
3 Marine slip and policy
12(6)
4 Conflict of laws
18(4)
5 Defences
22(32)
Duty of disclosure
23(4)
Warranties
27(2)
Express warranties
29(4)
Implied warranties
33(5)
Constructive total losses
38(4)
Termination of the risk
42(6)
Liability for the premium
48(6)
6 Preservation of defences
54(10)
Insurable value
54(2)
Constructive total losses
56(1)
Suing and labouring
57(5)
Return of premium
62(2)
7 Jurisdiction
64(1)
8 Third party risks
65(9)
Third Parties (Rights Against Insurers) Act 1930
66(4)
Pollution claims
70(4)
9 Assignment
74
Chapter 22 Insurance Against Pecuniary Loss
1 Introduction
1(9)
Definition
1(6)
Considerations common to pecuniary loss policies and differing from other policies
7(3)
2 Legal expenses insurance
10(18)
General description
10(8)
Pre-policy disclosure
18(1)
Post-contract control
19(9)
3 Trade insurance
28(47)
General
28(4)
Greater detail on credit risk and political risk
32(2)
Features and types of trade risk cover
34(1)
Credit risk
34(2)
Political risk
36(2)
Pre-policy disclosure
38(1)
Credit risk
38(11)
Political risk
49(4)
Post-contract control
53(1)
Credit risk
53(12)
Political risk
65(10)
4 Fidelity policies
75(26)
Background and broad description of cover
75(13)
Pre-policy disclosure
88(2)
Post-contract control
90(11)
5 Patent defect in title to land (restrictive covenants and easements)
101(6)
General background and cover
101(2)
Pre-policy disclosure
103(1)
Post-contract control
104(1)
Controlling incidence
105(1)
Control of loss
106(1)
6 Checklist
107
Chapter 23 Employers' Liability
1 Introduction
1(6)
What liability?
2(1)
Employee
3(1)
Bodily injury or disease
4(1)
Arising out of and in the course of employment
5(1)
The occurrence basis of cover
6(1)
2 The statutory framework
7(36)
The 1969 Act and Regulations
8(1)
Employers' Liability (Compulsory Insurance) Act 1969
9(1)
Employers' Liability (Compulsory Insurance) General Regulations 1998
10(1)
Exemptions
11(1)
Offshore installations
12(1)
Limits of compulsory cover
13(1)
Coverage limits
14(1)
Territorial limits
15(1)
Exemptions
16(1)
Exempt employers
17(1)
Exempt employees
18(1)
Prohibited terms
19(1)
Conditions regulating the insured's behaviour after the event giving rise to the claim
20(2)
Conditions requiring the insured to exercise reasonable care
22(2)
Conditions requiring the insured to comply with legislation
24(2)
Conditions requiring the insured to keep records or provide information
26(2)
Excesses
28(1)
The effect of the prohibition of certain terms on the payment of claims
29(2)
Refusing indemnity
31(1)
Recovering outlay
32(2)
Terms not prohibited
34(1)
Non-disclosure and misrepresentation
35(1)
When the injured person is not an "employee"
36(1)
When the work is outside the scope of the policy
37(1)
When the work is carried out outside the territorial limits of the policy
38(1)
Liability for breach of the statutory provisions
39(1)
Obligations of insurers
40(1)
Obligations of the insured
41(1)
Penalties for non-compliance
42(1)
3 Employment
43(17)
Who is an employee?
44(1)
The meaning of "contract of service"
45(1)
Does the employer have "control" over the employee?
46(1)
What is the real position of a "labour only sub-contractor"
47(1)
Borrowed workers
48(1)
Partners and directors
49(1)
The usual definition of "employee" in employers' liability policies
50(2)
Transfer of undertakings
52(1)
The effect of TUPE on employers' liability insurance
53(1)
What is "work"?
54(1)
What is "in the course of employment"?
55(1)
Activities outside normal working hours
56(1)
Breaks from work during normal working hours
57(2)
What does "arising out of employment" mean?
59(1)
4 Handling claims
60(30)
Is there an occurrence within the policy period?
61(1)
Accident claims
62(1)
Disease claims
63(1)
Was the alleged occurrence in the course of and arising out of the employment?
64(1)
Was the occurrence an insured activity?
65(1)
General activities of the insured
66(1)
Exclusion of specific activities
67(1)
Was the occurrence within the territorial limits?
68(1)
Other insurance clauses
69(2)
Was the claimant an employee?
71(1)
Is there a bodily injury or disease?
72(1)
Is there a breach of condition?
73(2)
Conditions regulating the insured's behaviour before the event giving rise to the claim
75(1)
Conditions specifying how work should be carried out
76(1)
Conditions regulating the insured's behaviour after the event giving rise to the claim
77(1)
Recovering outlay after the claim is paid
78(2)
Is there recklessness or deliberate action giving rise to the claim?
80(1)
When to decide to reject the claim
81(2)
Complications of handling disease claims with other employers and their insurers
83(1)
Joint and several liability
84(3)
Several liability
87(2)
Summary
89(1)
5 Voluntary cover
90(4)
Health and safety prosecutions
91(2)
Coroners' inquests
93(1)
6 Enforcement
94
No right of enforcement against the insurer
95
Chapter 24 Professional Liability
1 Introduction
1(8)
What is a professional?
1(5)
Right to indemnity
6(1)
Tax liability
7(2)
2 The professional and his client
9(11)
Formation of the retainer
9(2)
Standard written terms of engagement
11(1)
RIBA Conditions (architects)
12(1)
ACE Conditions (engineers)
13(1)
RICS Conditions (surveyors)
14(1)
Non-contractual retainers: barristers and medical practitioners
15(1)
Barristers
15(1)
Medical practitioners
16(1)
Agency principles
17(3)
3 Scope of retainer
20(69)
General principles
20(3)
Importance of the contractual relationship
23(2)
Scope of the professional retainer
25(1)
Obligations within the retainer
26(1)
Scope of the retainer and extent of professional's financial responsibility
27(17)
The scope of the retainer
44(3)
Individual professions: Some examples
47(1)
Solicitors
48(9)
Surveyors
57(1)
Architeets and engineers
58(1)
Medical practitioners
59(1)
Insurance brokers and intermediaries
60(3)
Accountants
63(1)
Standard of care
64(5)
Consensus of professional opinion
69(4)
How long do a professional's duties continue?
73(6)
Demarcation of duties between professionals
79(3)
Contribution between defendents
82(7)
4 Liability in contract
89(10)
Express and implied terms
89(1)
Terms implied by statute: the duty of skill and care
90(1)
Terms implied by the common law
91(2)
Exclusion and limitation of liability clauses
93(6)
5 Concurrent liability in contract and tort
99(17)
Developments since Midland Bank v Hett Stubbs & Kemp
106(10)
6 Tortious liabilities of the professional to third parties
116(22)
General principles
116(2)
The threefold test---Caparo v Dickman
118(2)
Application of the test in Caparo
120(3)
The incremental approach: White v Jones
123(2)
Assumption of responsiblity: Hedley Byrne v Heller
125(2)
Why can economic loss in tort be recovered in Hedley Byrne cases?
127(4)
Standard of care
131(1)
D and F Estates and the "complex structures" theory
132(6)
7 Limitation periods
138(16)
Introduction
138(1)
Limitation in contract
139(2)
Limitation in tort
141(5)
Other limitation periods
146(8)
8 Trustee and fiduciary obligations
154(9)
9 Damages
163(24)
General principles
163(4)
Causation and loss of a chance
167(11)
Diminution in value or cost of repair?
178(9)
10 Professional indemnity policies
187
Generally
187(4)
Liability cover
191(1)
Additional insuring clauses
192(4)
Claims-made basis
196(6)
Limits of indemnity and excesses
202(5)
Collateral warranties
207(2)
The QC clause
209
Chapter 25 Product Liability Claims
1 The law
1(71)
Background
1(2)
History of product liability: the common law and legislation
3(3)
Limitation
6(4)
Civil and criminal liability for defective goods
10(2)
Liability under the CPA, Part I
12(1)
Products defined under the CPA
13(4)
Defects under the CPA
17(6)
Level of safety
23(1)
Damage and excluded damage under section
5. CPA
24(6)
Defences under the CPA
30(1)
(1) Defect due to compliance with legislation
31(1)
(2) No relevant supply
32(2)
(3) Private transaction
34(1)
(4) Defect is acquired after supply
35(1)
(5) The state of the art or development risk defence
36(4)
(6) Manufacturer's improper use of components or raw materials
40(1)
(7) Labellers acting on manufacturer's instructions
41(1)
The CPA and the common law
42(1)
The European Commission's review of the Product Liability Directive
43(1)
The Commission's 2006 report on the application of the Directive
44(2)
Liability in contract
46(3)
The SGA's requirements
49(6)
The EU Directive on Consumer Sales
55(6)
Sale and Supply of Goods to Consumers Regulations 2002
61(3)
Claims in negligence
64(2)
(1) Products which are unsafe for use
66(1)
(2) Containers which are not reasonably safe
67(1)
(3) Failure to label dangerous products
68(1)
(4) Failure to give proper instructions for use
69(3)
2 Insurance coverage
72
The purpose, form and limitations of basic cover
72(3)
The operative clause
75(1)
(1) "[ Subject to the Conditions and Exceptions to this policy, The Company will indemnify the insured against] for all sums ... legally liable"
76(1)
(2) "To pay as Damages/Compensation in respect of
77(1)
(3) "Accidental"
78(1)
(4) "Bodily Injury of any Person other than an employee"
79(1)
(5) "And/or accidental loss of or damage to material property"
80(2)
(6) Additional coverage options
82(1)
(7) Business description: "arising ... in the course of/connection with the business"
83(1)
(8) Occurrence-based policies: "... occurring during the period of insurance ..."
84(1)
The trigger of coverage in North America
85(2)
The UK trigger
87(2)
(9) Claims-made policies: "[ claims] notified to the insurer during the period of insurance ..."
89(1)
(10) Occurrence-reported policies: "[ claims] arising from occurrences reported to the insurer during the period of insurance ..."
90(1)
(11) "Within the territorial limits"
91(1)
(12) Products defined: "caused by or arising from products/goods or other property and their containers (including labelling and packaging) sold supplied delivered installed erected repaired altered treated or tested by the insured"
92(1)
(13) Component parts
93(4)
(14) Covered losses
97(2)
Limits of indemnity: pre-existing risks, wordings, protection and liability limits
99(10)
Exclusions from cover
109(1)
Insured's property
110(1)
Advice
111(1)
Design risk
112(1)
Contractual liability
113(1)
Jurisdiction clauses and liability to defend local claims: "The insurer shall not be liable for any claim in respect of any action for damages brought in a court of law outside of the EU or where the insured has a branch or subsidiary company"
114(1)
Catastrophic risk: use of product
115(1)
Deliberate acts and omissions
116(1)
Pollution
117(1)
Other exclusions
118(1)
Extensions of cover
119(1)
Financial loss
119(2)
Extending the indemnity limits: legal costs
121(1)
Civil claims and criminal prosecutions
121(1)
Protection from paying excessive legal costs
122(1)
Product guarantee insurance
123(3)
Extending the policy period indirectly
126(1)
Conditions of the policy
127(6)
The insured's duties and avoidance
133
Chapter 26 Contractors/Builders/Repairers
1 The construction insurance market
1(2)
2 Factual matrix
3(30)
The parties
3(1)
Contract
3(3)
Tort
6(4)
The construction contract
10(1)
Traditional contracting
11(1)
Design and build
12(2)
Management contracting
14(1)
Construction management
15(1)
PFI and PPP
16(1)
The standard forms of construction contracts
17(3)
JCT
20(11)
Other contracts
31(2)
3 Types of insurance
33(24)
CAR (Contractor's All Risks)
34(5)
Public liability policies
39(4)
Project policy
43(4)
Professional indemnity insurance
47(3)
Product liability
50(1)
Decennial or BUILD insurance
51(5)
Employer's liability
56(1)
4 Common problems
57(80)
Who is insured?
57(4)
Subrogation
61(6)
Definition of parties
67(2)
Who has an insurable interest?
69(6)
Supervision
75(2)
What information should be disclosed?
77(3)
How do liability and insurance clauses interact?
80(1)
Contract
80(8)
Tort
88(3)
What is defective design?
91(7)
How many deductibles apply?
98(2)
At what point in time does legal liability or loss or damage arise?
100(1)
Limitation periods
100(7)
What constitutes a loss?
107(5)
When is a liability to pay ascertained?
112(3)
Arbitration
115(1)
Adjudication
116(7)
Who can give a good receipt for the money?
123(9)
Has an insurance event occurred?
132(5)
5 Checklist
137
Chapter 27 Environmental Insurance In The Uk
1 Introduction
1(6)
2 What environmental liabilities exist in the UK?
7(8)
Third party environmental liability
8(2)
First party environmental damage/clean-up costs
10(5)
3 Against what types of environmental liability can one insure?
15(12)
Employers' liability
16(7)
Product liability
23(4)
4 How has insurance for environmental liability developed in the UK?
27(67)
General liability policies/public liability policies
29(1)
Occurrence basis
29(3)
Interpretation of occurrence basis
32(5)
Problems of occurrence basis in relation to environmental risks
37(1)
For the insurer
38(2)
For the insured
40(1)
Development of general/public liability insurance policies in respect of the environment
41(1)
Claims-made basis
42(2)
Exclusions
44(24)
The current status of general/public liability policies in respect of environmental liabilities
68(2)
Environmental Impairment Liability (EIL) insurance
70(1)
The different types of EIL policies
71(7)
Limitations
78(1)
Site specific
79(1)
Specified activities
80(1)
Premiums
81(1)
Audit
82(1)
Pre-policy environmental condition of site
83(1)
Claims-made
84(2)
Orders from regulators
86(1)
Cancellation
87(1)
EMS
88(1)
Common exclusions
89(1)
Other stand-alone policies
90(1)
Professionals' policies
91(1)
Captives
92(2)
5 What does the future hold?
94
Chapter 28 Reinsurance
1 Introduction
1(5)
What is reinsurance?
4(1)
Definitions
5(1)
2 Incorporation of terms from original policy into reinsurance contract
6(23)
Purported incorporation of provisions relating to scope of cover
10(1)
Vesta v Butcher
11(2)
Groupama v Catatumbo
13(1)
Wasa v Lexington
14(4)
Incorporation of formal or procedural terms
18(1)
Arbitration clauses
19(3)
Choice of law
22(1)
"Follow the settlements" or claims control clauses
23(3)
Warranties
26(1)
Practical advice on incorporation by reference
27(2)
3 Ascertainment of appropriate reinsurance contract period where timing of losses treated differently under original and reinsurance contracts
29(11)
Losses discovered or claims made clauses
30(1)
Interpretation of this clause
31(3)
Caudle v Sharp---judgment of the Court of Appeal on this issue
34(1)
Allocation of loss to correct reinsurance period where both original and reinsurance contracts cover on an LOD basis
35(5)
4 Are an insurer's loss settlements binding on its reinsurers?
40(32)
The "tension of reinsurance"
42(1)
Varieties of loss settlements clause
43(1)
"Follow the settlements"
44(1)
Ica v Scor---facts and reasoning
44(2)
Practical effect of judgment in Ica v Scor
46(1)
The future of "follow the settlements" provisions
47(1)
"Loss settlements shall be binding"
48(1)
Hill v M&G Re---an example of "loss settlements shall be binding"
49(1)
The first instance judgment
50(1)
Judgments of the Court of Appeal and House of Lords
51(1)
Settlements under contracts governed by foreign law
52(7)
Equitas v R&Q
59(3)
IRB v CX Re
62(2)
Practical implications for the market
64(3)
Burden of proof
67(1)
"Follow settlements" clauses
68(1)
"Loss settlements binding" clauses with provisos
69(3)
5 Claims co-operation or control
72(10)
Commercial reasons for claims co-operation or control clauses
72(1)
The clause in ICA v Scor
73(1)
Problems revealed by this wording
74(4)
Claims notification/co-operation/control clause
78(2)
Practical advice on avoiding inconsistencies in insurance and reinsurance contracts
80(1)
Implied term in claims co-operation clauses
81(1)
6 Commutations
82(7)
Definition of commutation
82(1)
Problems for a reinsured arising from commutations
83(1)
Re a company
84(4)
Practical advice for retrocedants
88(1)
7 Inspection of records
89(15)
Rationale for granting right of inspection
89(1)
Inspection of records clauses
90(1)
An implied right of inspection?
91(1)
Pitfalls in exercise of inspection right
92(2)
Alternatives to inspection
94(1)
Immediate avoidance
94(1)
Reservation of rights
95(2)
Preconditions to inspection?
97(1)
Consequences of delay
98(1)
Speculative defences
99(1)
Last-minute requests
100(1)
Proceedings to continue pending inspection
101(1)
Limited postponement of summary judgment application
102(1)
Considerations to be taken into account by a court when ruling on a request for inspection
103(1)
8 "Errors and omissions" clauses
104(4)
Typical wording
104(1)
Effect of errors and omissions clauses
105(3)
9 Limitation
108(18)
Effect of statutes of limitation
108(1)
Ascertainment of date of accrual of cause of action
109(1)
What is the date of the reinsured's loss?
110(1)
Date of original loss
111(1)
Date of ascertainment of reinsured's liability
112(2)
Payment by the reinsured
114(2)
Rendering of accounts
116(2)
Problem of postponing limitation by reference to rendering of accounts---may the reinsured profit by its own delay?
118(1)
Possible solution---date fixed by reference to time at which reinsured should have rendered an account
119(1)
Continental v Stronghold
120(4)
Practical points to note in relation to limitation
124(2)
10 Resolution of reinsurance disputes
126(7)
Aim of this section
126(1)
What is an honourable engagement clause?
127(1)
A typical honourable engagement clause
128(1)
Effect of such clauses
129(1)
The Arbitration Act 1996, s. 46
130(1)
Practical considerations
131(2)
11 Checklist
133(718)
Index 851
Lord Mance is a Lord of Appeal in Ordinary. His background is in insurance and re-insurance.

Iain Goldrein QC is a silk at 7 Harrington Street Chambers, Liverpool and at 7 Bell Yard, London.

Robert Merkin is a professor of Commercial Law at Exeter University and a consultant to the Norton Rose Group.
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