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CONSULTATION PAPER INSURANCE CONTRACTS (LRC CP 65 - 2011) © COPYRIGHT Law Reform Commission FIRST PUBLISHED December 2011 ISSN 1393-3140 LAW REFORM COMMISSION‘S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission‘s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 160 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation. The Commission‘s law reform role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. The Commission‘s role also involves making legislation more accessible through three other related areas of activity, Statute Law Restatement, the Legislation Directory and the Classified List of Legislation in Ireland. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. The Classified List of Legislation in Ireland is a list of all Acts of the Oireachtas that remain in force, organised under 36 major subject-matter headings. ii MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: Vacant at the time of going to print (December 2011) Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: The Hon Mr Justice Donal O‘Donnell, Judge of the Supreme Court iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Kate Clancy, LLB (Hons) (TCD) Conor Cunningham BCL (Clinical) (NUI), LLM (UCL) Dannie Hanna BCL (NUI), LLM (Cantab) Donna Lyons LLB (Dub), LLM (NYU), Attorney at Law (NY) Tara Murphy BCL (Law with French Law) (NUI), LLM (Essex), Barrister-at-Law Máire Reidy BCL (NUI), LLM (NUI), Barrister-at-Law STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researcher: Elaine Cahill, BBLS, LLM Eur Law (NUI), Dipl. IP & IT, Solicitor LEGISLATION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law Legal Researchers: Aoife Clarke BA (Int.), LLB, LLM (NUI) Barbara Brown BA (Int.), LLB, Attorney-at-Law (NY) Rachel Kemp BCL (Law and German) LLM (NUI) Aileen O‘Leary BCL, LLM, AITI, Solicitor iv ADMINISTRATION STAFF Head of Administration and Development: Ciara Carberry Executive Officer: Ann Byrne Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS, LLB Clerical Officers: Ann Browne Liam Dargan PRINCIPAL LEGAL RESEARCHERS FOR THIS CONSULTATION PAPER Prof Robert Clark Conor Cunningham BCL (Clinical) (NUI), LLM (UCL) Gerard Sadlier BCL (NUI) (Oxon), LLM (NUI) v CONTACT DETAILS Further information can be obtained from: Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance: Elizabeth Bothwell, Arthur Cox, Solicitors Roddy Bourke, Solicitor, McCann FitzGerald, Solicitors Gary Davis, Deputy Data Protection Commissioner David Hertzell, Solicitor, Commissioner, Law Commission of England and Wales Joe Meade, former Financial Services Ombudsman Joseph Morley, Central Bank of Ireland Kevin Murphy, National Consumer Agency Deirdre Norris, Central Bank of Ireland Adrian O’Brien, Central Bank of Ireland Eamon Shackleton, Insurance Institute of Ireland Christina Sparks, Solicitor, Law Commission of England and Wales Full responsibility for this publication lies, however, with the Commission. vii viii TABLE OF CONTENTS Table of Key Legislation xv Table of Key Cases xvii INTRODUCTION 1 A Background: Insurance Contract Law 1 B Insurance Contract Law: Some Key Common Law Principles 1 C Insurance Contract Law: pre-1922 Legislation 1 D Regulation and Supervision of Insurance: pre-1922 Legislation 2 E Regulation and Supervision of Insurance during the 20th Century 2 F Regulation and Supervision of Insurance: the EU influence 2 G Statutory Regulation of Insurance Contracts 3 H Regulation and Oversight by the Financial Regulator and the Financial Services Ombudsman (FSO) 3 I The development of Principles of European Insurance Contract Law (PEICL) 4 J The Commission‘s General Approach in this Consultation Paper 4 A Outline of Consultation Paper 5 CHAPTER 1 REGULATORY CONTEXT 9 A Introduction 9 B Overlapping regulation of Irish insurance contract law and commercial practices 9 (1) Regulatory overlaps – financial services legislation 9 (2) Regulatory Overlaps – Competition Law 9 (3) Regulatory Overlaps - Equality Legislation 10 (4) Regulatory Overlaps - The Data Protection Commissioner 11 (5) Regulatory Overlaps – Consumer Protection Agencies 13 (6) Financial Services and consumers 14 (7) The Jurisdiction of the Financial Services Ombudsman 14 (8) Merger of the Industry ADR Scheme with the Statutory Model 15 C European Union Initiatives on Insurance Regulation 17 (1) Single Market for Insurance 17 (2) Adverse comments on the proposed insurance contracts directive – the Law Commission for England and Wales 18 (3) Recent European Developments 18 (4) The Restatement of European Insurance Contract Law – The Project Group 20 D New Legal Norms and forms of Dispute Resolution 22 (1) The adjudications of the Insurance Ombudsman 1992-1998 22 (2) Decisions of the Financial Services Ombudsman 24 (3) The failure to legislate 24 ix E The need for contract law reform 25 (1) Sources of new rules 25 (2) Reform Proposals in the United Kingdom – support for legislative changes 26 (3) The Financial Regulator – consumer protection code 27 F Conclusions and Provisional Recommendations 27 CHAPTER 2 INSURABLE INTEREST 29 A Introduction 29 B The emergence of the insurable interest requirement 31 C Modern development of insurance interest and factual expectation in other jurisdictions 35 (1) Canada, Australia, the USA and South Africa 35 (2) The current British debate on Insurable interest 38 (3) Conclusions on the Bitish debate 40 D The insurable interest test in Irish Law 43 E Conclusion on the insurable interest test 45 F Insurable interest in Life Policies – common law and statute law 45 G Should a remodelled section 1 of the Life Assurance Act 1774 be re-enacted as a formalities provision? 47 (1) Natural Love and Affection 47 (2) A potential financial loss recognised by law which existed at the time of contracting 48 (3) Statutory obligations 48 (4) The Miscellaneous Category 49 (5) The limits of natural love and affection 49 (6) Debtors and creditors 52 (7) Property insurance 52 (8) Valuation Difficulties 53 H Reforming the insurable interest requirement in Ireland 54 (1) Proposals for Reform – A Broad or Narrow Approach? 55 (2) Non Indemnity Insurance and the Insurable Interest 56 (3) Moral hazard/deterrence 56 (4) Pleas of illegality 58 (5) Options for reform under the Law Commissions Issues Paper – the regulatory definition question 59 (6) Defining Insurance Contracts in Irish Law 60 (7) The insurance/gaming divide – current review of gambling legislation 60 CHAPTER 3 DUTY OF DISCLOSURE 63 A Introduction 63 B The Duty of Disclosure in Insurance Contracts 63 C Constructive Knowledge and Non-disclosure 67 D Materiality and Inducement 70 (1) Materiality: decisive influence or ―what the insurer would like to know‖ 71 (2) Examples of the Duty of Disclosure in Operation 72 E What the Proposer does not have to disclose 74 (1) Knowledge 74 (2) Factors reducing the risk 76 x (3) Factors covered by any warranty 76 (4) Waiver 76 (5) The IIF Life Assurance Code of Practice and Ombudsman Adjudications on Non disclosure 78 (6) Non-Disclosure – the 1957 Reform Proposals in England and Wales 81 (7) The English Law Commission‘s 1979 Working Paper 81 (8) The English Law Commission‘s 1980 Report 83 (9) The general duty of disclosure in the 1980 Report 83 (10)Australia 85 (11)New Zealand 85 (12)The Principles of European Insurance Contract Law (PEICL) 86 (13)British Consumer Insurance (Disclosure and Representations) Bill 2011 87 F General Conclusions 88 CHAPTER 4 PRE-CONTRACTUAL MISREPRESENTATION AND INSURANCE CONTRACTS 91 A Introduction 91 B Judicial approaches to limiting actionable misrepresentation 92 (1) ―Reading down‖ the statement 92 (2) Honest belief 92 (3) Agent liability 92 (4) Ambiguous questions 92 (5) Interpretation of Ambiguous Answers 94 (6)
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