UK: Property Insurance: Non-Disclosure and Breach of Warranty

Sugar Hut Group Ltd & Ors v. Great Lakes Reinsurance (UK) Plc & Ors [2010]
Commercial Court, 26 October 2010

This litigation concerned a claim by the owners and operators of four nightclubs under a property insurance policy issued by the Defendant insurers, following a fire at one of the insured premises.

By way of a slip scratched on 24 March 2009, the policy insured various companies within the Sugar Hut Group, including the then holding company and its four subsidiaries through which the clubs were each operated (the "Old Companies"). Soon afterwards, insurers were presented with an endorsement, requesting the substitution of the Old Companies by four new group companies, the Claimants in the litigation. Ostensibly, this amendment was sought merely to reflect a change in the name of the relevant operating companies. The endorsement was duly agreed on 31 March 2009.

The slip contained various warranties concerned with fire and intruder protection, and cover was also expressly subject to receipt of a satisfactory proposal form, in fact provided two weeks after inception.

Non-disclosure

On 13 September 2009 a fire occurred at one of the insured nightclubs. In the course of insurers' investigations into the loss, it emerged that the original insureds (that is, the Old Companies), had gone into administration only a few weeks prior to their agreeing to underwrite the policy, this being the real (but undisclosed) reason for the requested endorsement. Relying upon section 18 of the Marine Insurance Act 1906, insurers contended that these were material facts that ought to have been disclosed, thereby entitling them to avoid the policy.

On the question of materiality, the court had little difficulty in concluding that a reasonable and prudent underwriter would have wanted to know why the Claimant companies had been formed, what had happened to the Old Companies and why they were no longer to be the subject of insurance. There was, as it turned out, much more to the requested endorsement than a mere change of corporate name, and these matters were clearly material to the decision whether to accept the risk and, if so, on what terms.

However, applying the two stage test set down in the well known case of Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd [1995]1, the court also needed to be satisfied that the particular underwriter in this case had been induced to enter into the contract as a result of the said non-disclosure. On that, the judge asked himself two alternative questions:

i) Was the underwriter so keen to accept the risk, so uninquisitive and so complacent, that he would not have batted an eyelid had the undisclosed facts been disclosed to him?

ii) If the underwriter would have batted an eyelid and had called for (and received) the relevant explanations, would he still have proceeded with the insurance contract as arranged?

On the facts, the Judge was satisfied that the underwriter was indeed induced. Moreover, the specific questions put (and answers given) in the proposal form about the insureds' trading history did not serve to limit the duty of disclosure or waive the obligation to disclose matters beyond the particular questions raised.

Breach of fire risk warranties

The judge also went on to consider two fire risk warranties in the policy, namely the requirement to keep cooking equipment and ducting "free from combustible materials" and the requirement that extraction ducts be "checked at least once every six months by a specialist contractor". On the first, the experts agreed that there had been contact with combustible materials, but the insured contended that this was not a "true" warranty, so much as merely a suspensory condition, suspending cover during the actual period of breach, but not otherwise. The court disagreed. Taking into account the agreed evidence of the experts of the risk of ignition of the combustible materials, the warranty bore materially on the risk of loss and the insurers were entitled to regard it as an important protection. Moreover, given that all four premises had kitchens at risk of fire, it qualified as a true warranty in respect of all of them, such that breach in one kitchen would entitle insurers to treat the contract as discharged in all four premises, and whether or not the breach had occurred in the premises that actually suffered the fire. As to the question of six monthly inspection, the court was more sympathetic to the argument that this was merely suspensory in nature, but on the facts this approach could not assist the insureds in this case. They were in actual breach of the six monthly inspection requirement at the date of the fire, and hence without cover on either view.

Breach of burglar alarm warranty

Finally, the court also went on to consider the effects of a warranty requiring that "a N.A.C.O.S.S. Central Monitoring Station Alarm is installed and operational", and a corresponding obligation to comply with any risk improvement notices issued by insurers following survey. The court concluded that the express warranty was, again, a true warranty, whereas the need to comply with more detailed risk improvement notices issued from time to time might be suspensory only in effect. On the facts, however, the result here would be the same. The burglar alarm system installed at the fire damaged premises lacked any connection to the police station or to an alarm centre, and as such fell short of a "Central Monitoring Station Alarm", as required by the express warranty. It also failed to meet the standards requested under the risk improvement notices issued by insurers, a breach that remained current on the date of the fire. On either basis, therefore, there would be no cover at the time of the fire.

Result: Judgment for the insurers on avoidance and (in the alternative) breach of warranty.

Footnotes

1. [1995] a AC 501

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions