UK: (Re)Insurance Weekly Update 25 - 2015

Last Updated: 15 July 2015
Article by Nigel Brook

Welcome to the twenty-fifth edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2015

This Week's Caselaw

Milton Furniture v Brit Insurance

Court of Appeal considers two conditions precedent and the meaning of "left unattended"/non-withdrawal of protections

The first instance decision in this case was reported in Weekly Update 13/14. A fire at the insured's premises was started by an intruder. Although a fire alarm detected the fire, the insured's burglar alarm was not set at the time and in fact was no longer being monitored by the provider, SECOM, because the insured had not paid its monitoring charge. At the time of the fire, which happened at 01.00 am on a Saturday, the owner of the insured and a sub-contractor had been asleep in a separate dwelling area on the premises.

The insured's property insurance policy contained the following two conditions precedent ("CP"s):

  1. 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at all times out of business hours or when the Insured's premises are left unattended and such protections shall not be withdrawn or varied to the detriment of the interests of Underwriters without their prior consent"; and
  2. 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).

At first instance, the judge held that both clauses were conditions precedent but that GC7 had to be "read down", so that the insured was only required to set the burglar alarm when the premises were unattended (rather than also, separately, out of business hours (regardless of attendance)). However, the insured's case failed on the basis that it had breached the second limb of GC7 because it had been reckless as to the risk of the monitoring service being cut off. The insured appealed and the Court of Appeal has now held as follows:

  • GC7 was a CP in relation to the burglar alarm and it could not be said that PW1 was the only CP which applied to that alarm. Since there was no conflict or inconsistency between the two CPs, "the court has to attempt to give effect to the provisions of each clause". GC7 applies to all claims, and PW1 applies only to theft/attempted theft claims.
  • The judge had been wrong to "read down" GC7 so that it matched the terms of PW1. The language of GC7 is plain and clearly requires the burglar alarm to be set either when the premises are unattended, or out of business hours.
  • Applying a common sense commercial construction to the policy, the reference to "premises" in GC7 should be read as including "or any part of the premises".
  • The insured had breached the first limb of GC7. The alarm should have been set at the time of the break-in, which was out of business hours. The Court of Appeal also disagreed with the judge's interpretation of "left unattended". It held that: "The natural meaning of the word "attended", as Lord Denning said in StarFire Diamond Rings Limited is that someone is keeping the property under observation, and is in a position to observe any attempt by anyone to interfere with it". The two men in question had been asleep at the time and so the burglar alarm should have been in use.
  • Although not necessary to decide the point in view of the conclusion that the insured had breached the first limb of GC7, the Court of Appeal also went on to conclude that the second limb of the CP had been breached too. The second limb imposed a strict obligation on the insured. Whilst a "variation" might necessarily imply some degree of knowledge on the part of the insured, a "withdrawal" might be effected unilaterally by SECOM, without the insured's knowledge. Although it might be theoretically possible for the service to be withdrawn through no fault of the insured (eg due to the insolvency or mistake of the provider), the Court of Appeal held that the risk of such an event occurring should be borne by the insured, rather than the insurer. The requirement in this case contrasted with that in the case of Melik v Norwich Union (1980), where the CP in question required a burglar alarm to be "kept in efficient working order". It was held that that requirement implied that the insured must be aware (or should have been aware) of the facts which gave rise to the alarm not being in efficient working order.

Even if the second limb was not a strict obligation, the test would be whether or not the insured had taken "reasonable or common care" (and not whether it had been reckless). On the facts, the judge had found that the insured should have known that there had been a risk that the monitoring service would be withdrawn.

Accordingly, the appeal was dismissed.

COMMENT: As mentioned in our summary of the first instance decision, the judge's conclusion had conflicted with textbook commentary which referred to "a rule 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). The Court of Appeal's decision supports the textbook commentary, albeit it does recognise that CPs can conflict with each other (in which case, they should not be construed as independent terms).

It might also be interesting to note how a case on these facts might be decided once the Insurance Act comes into force. The loss in question was caused by fire, started by an intruder.  The Court of Appeal accepted that a burglar alarm is intended to reduce the risk not just of theft but also of a break-in which might lead to loss/damage (as was the case here). Accordingly, even after the Act comes into force, an insurer faced with a loss in similar circumstances should still be able to rely on the breach of a clause like GC7 as a defence to the insured's claim.

AXA Versicherung v ARIG

Whether reinsurer entitled to avoid treaty because of alleged misrepresentation/non-disclosure by reinsured

The reinsurer claimed to be entitled to avoid two reinsurance treaties entered into with the defendant reinsured on the basis that the reinsured had failed to disclose loss statistics relating to the reinsured's book of inwards marine energy construction risks, and had also failed to disclose three incidents likely to result in claims under one of the treaties. The reinsured accepted that the past loss statistics were material but argued that they would not have influenced the judgment of a prudent underwriter because (a) energy construction risks are all unique (so that little or nothing is to be gained from considering past results achieved by the reinsured on the insurance of such risks), and (b) there had been a change of underwriter at the reinsured, who had a "much more rigorous" approach to the selection of risks. Much of the case turns on the particular factual evidence but one point from the case is of more general interest (especially in light of the upcoming changes being introduced by the Insurance Act, which will require an insurer to prove what he would have done had he known about the breach of the duty of fair presentation in order to ascertain which remedy will apply).

Males J noted that there was a need for caution regarding the witness evidence in this case, given that most of the relevant events had taken place almost 20 years ago and: "the need for caution applies with even greater force to hypothetical evidence as to what a witness would have done if circumstances had been different". He also approved the comment by Colman J in North Star Shipping v Sphere Drake (see Weekly Update 06/06) that "hypothetical evidence by its very nature lends itself to exaggeration and is very easy for an underwriter to convince himself that he would have declined a risk or imposed special terms if given certain information". He concluded that: "As usual, however, where documents are available they represent much the best evidence not only of what the parties did, but also of what they were thinking at the time".

Males J also noted that first loss reinsurance is like quota share reinsurance, in that the reinsurer's fortunes are closely tied to the original book of risks written by the reinsured. However, since the first loss reinsuer is also liable for 100% of the losses up to a specified limit, the reinsurer will be liable for each and every minor loss for which the reinsured is liable. Accordingly, the first loss reinsurer "is heavily dependent on the success of the reinsured's underwriting and is in particular vulnerable to a large number of low level claims". As to the particular facts of the case, he held that:

  • The statement that "This is a new Treaty for the Reassured and as such does not have a corresponding loss record" clearly referred to losses under the new reinsurance treaty and not the reinsured's past losses from energy construction risks.
  • Past loss records of a prospective reinsured would influence the judgment of a prudent reinsurer even if the risks were energy construction risks or there had been a change of underwriter. Further explanations could be given to the reinsurer but material information should be disclosed in the first place.
  • The reinsurer had not known that the reinsured was writing energy construction risks (a hazardous type of risk) and so no issue of waiver arose just because the reinsurer had failed to ask for the past loss records. Nor did it matter that the change of underwriter had diminished the risk – the records ought still to have been disclosed.
  • On the facts, it was the head of treaty business who had to be shown to have been influenced by the non-disclosure, and not his assistant, even though the assistant had dealt with matters in his absence. The final decision had been taken by the head.

(e) In general, disclosure of figures going back 5 years should be sufficient to constitute a fair presentation of the risk. However, in this case, earlier losses should have been disclosed because there had been massive losses in years 6 and 7, whereas loss ratios had been only marginally negative in year 5 and positive in year 4.

(f) However, the judge concluded that the underwriter in this case had not been induced. He had written the treaty despite the absence of key information and on the facts it was evident that he was not averse to writing hazardous risks.

(g) It was not correct to suggest that the reinsured needn't disclose incidents for which no reserve had been made or where a loss adjuster had positively advised against a reserve: "There would be occasions when an incident not recorded as a reserve would be material for disclosure, and it is necessary to consider substance rather than form". On the facts, though, the three incidents not disclosed to the reinsurer would not have influenced the particular underwriter.

Dunnage v Randall and UK Insurance Ltd

Whether insurer liable for acts of a schizophrenic insured                                                                                                        

The claimant was injured when the defendant, his uncle, set fire to himself, engulfing them both in flames. The uncle died of his injuries and was diagnosed post-mortem as having suffered florid paranoid schizophrenia.

The uncle had a household insurance policy which provided cover for "all sums which you become legally liable to pay as damages for...accidental bodily any person". The insurer argued that the uncle's actions were deliberate and so did not cause "accidental bodily injury"; instead, they fell within the exclusion for "Liability arising from ... any wilful or malicious acts by you".

The experts confirmed that, at the time of the incident, the uncle had been acting under delusional beliefs and agreed that he was not in control of his actions. At first instance, the judge concluded that the uncle had not been acting voluntarily and so did not breach a duty of care to the claimant. Accordingly, he was not liable to the claimant (although the judge also concluded that the injury had been "accidental" and so any liability would have been covered by the policy).

The Court of Appeal has now allowed the claimant's appeal from that decision and held that the uncle was liable to the Claimant.

It was held that the uncle owed a duty of care and: "The issue is simply whether, unwell as he was, he breached that duty since he did not measure up to the objective standard of care". Although the objective standard is moderated for children, there is no such moderation for a defendant who fails to meet the normal standard of care partly because of a medical problem. The only exception is where the defendant's condition entirely eliminates responsibility: "If, akin to the man holding a knife whose arm was gripped by another and directed, [the uncle] had no part to play in his physical acts, he would escape liability... Likewise, had he been in a state of automatism or were he a sleepwalker". Put another way, were the claimant's injuries sustained because the defendant suffers "some entirely unheralded, unexpected and unforeseen incapacitating attack" (due to a physical or mental health problem)? If so, the defendant would not be liable.

But that was not the position here. The uncle had been "acting at all relevant times" and the acts causing the injuries had still been directed by the uncle's deranged mind. He had physical (although not rational) control over his actions.

As for the insurance policy, both Vos LJ and Arden LJ agreed that the injury had been "accidental", the uncle having clearly lost control of his ability to make choices and so could not be said to have intended to cause injury to the claimant (ie he was not malicious or wilful). They agreed with the claimant that: "it would be unrealistic to interpret accidental injury or damage in the policy as limited to that caused by some means external to the insured: that would reduce the cover to significantly less than the parties must have contemplated".

COMMENT: In Mandalia v Beaufort Dedicated (see Weekly Update 46/14) the judge held that maliciousness in a property policy required a desire to harm someone, whereas a High Court decision in the same month (Atlasnavios-Navegacao v Navigators), involving a war risks policy, had cited with approval Colman J's decision in "The Grecia Express" (2002) (another war risks policy case) that maliciousness "did not require proof that the person concerned had the purpose of injuring [the assured]". The Court of Appeal in this case has found that maliciousness in a liability policy required an intent to cause injury (which in this case was not satisfied because the uncle had "clearly lost control of his ability to make choices" and so there was no actual intent).

The Court of Appeal's brief consideration of the meaning of "accidental" (ie that the injury here was accidental because the insured had not intended to injure the claimant) is also of interest. One textbook has suggested that a loss may by accidental even if the insured did not make a subjective decision to run the risk of harm: "It suffices that he embarked on a deliberate course of conduct where the occurrence of injury or loss was, objectively viewed, a natural and probable consequence of his actions" (see MacGillivray on Insurance Law, 12th edn para 26-003).

Ecobank v Tanoh

Court considers whether to grant an anti-enforcement injunction

The parties entered into a contract which contained an arbitration agreement. When a dispute arose, the defendant commenced litigation in the Republic of Cote d'Ivoire and the Togolose Republic. The claimant unsuccessfully contested jurisdiction in those proceedings and commenced its own arbitration, but it did not seek an anti-suit injunction from the English courts. The defendant won in the foreign proceedings and sought to enforce judgment. At that point, the claimant applied to the English court for an anti-enforcement injunction.

Anti-enforcement injunctions are rare in England. Usually an application for one is made when a judgment has been obtained too secretly or too quickly for an anti-suit injunction to be sought. This case was different, in that the claimant was aware of the foreign proceedings but had tried to challenge the foreign courts' jurisdiction before those foreign courts.

The claimant argued that, although there had been delay in making the application to the English courts, delay "does not include any period during which the applicant sought to challenge the jurisdiction of a foreign court and the period pending the foreign court's decision on that challenge".

That argument was rejected by Knowles J. It would be the "reverse of comity" for the foreign court to find that it had jurisdiction and for the English court to then consider at that stage whether to intervene by injunction. The longer the foreign court has spent time on the dispute, the harder it is for the English court to intervene and once the foreign court has given judgment, it is a very serious matter for the English court to injunct the enforcement of that judgment.

Furthermore, there is no requirement for the respondent to the application to demonstrate detrimental reliance on any delay.

Accordingly, the application was refused.

COMMENT: This case is therefore a reminder that applications to restrain the pursuit of proceedings brought in breach of a jurisdiction or arbitration agreement, or to prevent the enforcement of a judgment/award thereby obtained, must be made promptly to the English court. It is not advisable to seek to challenge jurisdiction in the foreign court first before bringing an application to the English court for an injunction (if that challenge fails).

Brownlie v Four Seasons

Court of Appeal considers whether damage was sustained in England following an accident in Egypt

The claimant was injured whilst taking part on an excursion in Egypt which had been organised by the (Canadian) defendant. Her husband was killed in the same accident. She claimed in both tort and contract. Her tort claims were for (1) her own injuries; (2) her loss as a dependant of her husband (the Fatal Accidents Act claim); and (3) the loss suffered by her husband in her capacity as the executrix of his estate. She obtained permission to serve out of the jurisdiction (in part based on PD6B para 3.1(9)(a): "damage was sustained within the jurisdiction") and the defendant applied to set aside that permission. It was successful before Master Cook but unsuccessful before Tugendhat J.

One of the issues in this case concerned where the damage was sustained for the purpose of the tort claims. Tugendhat J had held that the claimant had an arguable case that damage was suffered in England, relying on earlier caselaw that where a party is injured in an accident abroad, but continues to suffer the effects here, damage can be said to have been sustained here (and hence permission to be serve out can be given).

The Court of Appeal has now unanimously held as follows:

The claimant's claim for her own injuries and for the loss suffered by her husband should have been brought in Egypt because damage was not sustained here. The Rome II Regulation applies to the tort claims and that provides that "the law applicable to a non-contractual obligation arising out of a tort... shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur". CJEU caselaw has confirmed that for damage to occur in a jurisdiction, it is insufficient that consequential loss occurs in that jurisdiction.

However, that conclusion did not apply to the Fatal Accidents claim. That claim would have arisen even if the claimant had not been involved in the accident. Furthermore, it was not a claim for consequential loss – rather, it was an independent loss which required her to establish not only that the defendant was liable but also that she was dependent on her husband.

A further question was whether the court could, under Rome II, in the absence of proof as to Egyptian law, apply the presumption that Egyptian law is the same as English law. In OPO v MLA [2014], the Court of Appeal held that Rome II did not exclude that presumption. In this case, the Court of Appeal held that OPO had been correctly decided and that the presumption did apply here.

Ras Al Khaimah v Bestfort

Freezing injunction where a foreign claim has not been commenced yet

CPR r 25.2(3) provides that "Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced". The White Book has this note on that provision: ". In terms this rule applies where the court grants an interim remedy in support of foreign proceedings yet to be commenced (perhaps on the undertaking recited in the order that proceedings will be commenced in the foreign jurisdiction)". In this case, Spearman QC held that it is not correct to suggest that CPR r. 25.2(3) applies to claims in a foreign jurisdiction. Accordingly, where a foreign claim has not been started yet, the court will not give directions that the claim be started – instead, an undertaking should be given by the applicant.

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.

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Nigel Brook
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