UK: Judge Interprets Potentially Conflicting Conditions Precedent And The Meaning Of "Left Unattended"

Last Updated: 6 January 2015
Article by Jon Turnbull and Michelle M. Radom

A fire at the insured's premises destroyed the vast majority of its stock. The evidence suggested that the fire was started by an intruder. Although a fire alarm at the premises detected the fire, the insured's burglar alarm had not been set at the time and in fact was no longer being monitored by the provider, SECOM, because its monitoring charge had not been paid by the insured. At the time of the fire, which happened at 01.00 am on a Saturday, the owner of the insured had been asleep in a separate dwelling area on the premises.

The insured's property insurer repudiated liability on the basis that there had been a breach of two conditions precedent. The policy contained:

a) a condition precedent (GC7) which provided that "the whole of the protections including any Burglar Alarm provided for the safety of the premises shall be in use at all times out of business hours or when the Insured's premises are left unattended and such protections shall not be withdrawn or varied to the detriment of the interests of Underwriters without their prior consent"; and

b) a further clause (PW1) which provided that "It is a condition precedent to the liability of the Underwriters in respect of loss or damage caused by Theft and/ or attempted Theft that the Burglar Alarm shall have been put into full and proper operation whenever the premises...are left unattended..." (emphasis added).

The case therefore turned on the inter-relationship between GC7 and PW1 (it being accepted, in accordance with English law principles that, since they were both conditions precedent, a breach did not have to be shown to have caused the loss). Jay J held as follows:

1) Wording in a quotation sheet which indicated that PW1 was intended to override GC7 did not form any part of the contract of insurance.

2) The correct approach to construction of GC7 is to examine its commercial purpose in light of the other relevant contractual provisions. The judge rejected the approach of some American courts that "each clause must be seen as an island unto itself". Here, it could not be said that the sole purpose of the burglar alarm was to reduce the risk of theft (and hence a burglar alarm differs from a fire alarm). A burglar alarm protects against the risk of intrusion which might in turn lead to damage to property. Accordingly, it could not be said that PW1 entirely predominated over GC7. Furthermore, the burglar alarm had a "domain of activity" outside of theft and so PW1 was not surplusage.

3) Did PW1 qualify GC7 with the effect that the duties under GC7 could be no more onerous than under PW1? The judge agreed that it did. There was no hard and fast rule that PW1 must be "hermetically sealed and ring-fenced off GC7". The two must be read together and the commercial purpose behind them considered. Jay J concluded that here GC7 had to be "read down" so that the insured was only required to set the alarm when the premises were unattended (rather than also just when out of business hours) and thus the requirements were no more onerous than they would have been had this been a theft claim (nor did the clauses have to match only for theft claims).

4) Had the premises been "left unattended"? The situation here was said to differ from earlier cases regarding motor insurance, where someone "attending" a vehicle cannot be asleep whilst doing so. The construction of the term was one of fact, degree and circumstance. Here, there was a large and complex building which could not possibly be subject to effective, active surveillance by one person and: "In ordinary parlance, houses or premises become unattended when their occupants leave". Accordingly, there had been no breach of GC7.

5) Even if GC7 was to be read as a stand-alone provision, it should not be construed in such a way that there was an obligation on the insured to activate the alarm in circumstances where it would have been triggered by the movement of persons who were legitimately on the premises (there being no reference in the clause to "part of" the premises). Nor did it matter what the insured actually used to do in practice: "this cannot be determinative of the claimant's contractual obligations...those obligations must be ascertained by the application of ordinary principles of construction of insurance documentation".

6) However, the insured's case failed because the judge held that it had breached the second part of GC7. Regardless of the use of the burglar alarm on one specific occasion, the insured had failed to pay SECOM's monitoring charge and this had given rise to a real risk that SECOM would cease its monitoring service. The insured had known that the charge was payable in advance, that it had not paid for over six months, and that SECOM would not allow this situation to continue indefinitely. It made no difference that the insured considered that SECOM was in breach of contract for causing or permitting too many false alarms. The insured had been reckless as to the risk of the monitoring service being cut off.

So, with a "degree of reluctance" the judge found in favour of insurers.

COMMENT: The judge's construction of the two conditions precedent conflicts with some textbook commentary that "each exclusion 'is meant to be read with the insuring agreement independently of every other exclusion. The exclusions should be read seriatim, not cumulatively ... There is no instance in which an exclusion can properly be regarded as inconsistent with another exclusion, since they bear no relationship with one another.' The meaning must be sought first in context: within the confines of the clause in question" (see Clarke, The Law of Insurance Contracts, 4th edn, para 15-6). However, the judge was clearly swayed by the view that a mismatch between the insured's obligations in relation to a theft claim as opposed to any other claim arising out of non-working burglar alarm made no commercial sense and could not have been what the parties intended.

Milton Furniture Ltd v Brit Insurance Ltd [2014] EWHC 965 (QB)

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

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

Jon Turnbull
Michelle M. Radom
In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.