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Warranties; Insurers' Remedies for Fraudulent Claims; and Late 09/07/2014 12:41 353 / Scot Law Com No 238 Law Com No Insurance Contract Law: Business Disclosure; Warranties; Insurers' Remedies for Fraudulent Claims; and Late Payment Law Commission Insurance Contract Law: Business Disclosure; Warranties; Joint Report Scottish Law Commission Insurers’ Remedies for Fraudulent Claims; and Late Payment LC 353 / SLC 238 41872 Cm 8898 Law LC353 Cover.indd 1 The Law Commission and The Scottish Law Commission (LAW COM No 353) (SCOT LAW COM No 238) INSURANCE CONTRACT LAW: BUSINESS DISCLOSURE; WARRANTIES; INSURERS’ REMEDIES FOR FRAUDULENT CLAIMS; AND LATE PAYMENT Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty Laid before the Scottish Parliament by the Scottish Ministers July 2014 Cm 8898 SG/2014/131 © Crown copyright 2014 You may re-use this information (excludi ng logos) free of charge in any format or medium, under the terms of the Open Government Licence v.2. To view this licence visit www.nationalarchi ves.gov.uk/doc/open-government-licence/version/2/ or email [email protected] Where third party material has been identified, permission from the respective copyright holder must be sought. This publication is available at www.gov. uk/government/publications Print ISBN 9781474109178 Web ISBN 9781474109185 Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office ID 04071405 07/14 41872 19585 Printed on paper containing 75% recycled fibre content minimum ii THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Lloyd Jones, Chairman, Law Commission Professor Elizabeth Cooke David Hertzell Professor David Ormerod QC Nicholas Paines QC The Chief Executive of the Law Commission is Elaine Lorimer. The Law Commission is located at 1st Floor, Tower, 52 Queen Anne’s Gate, London SW1H 9AG. The Scottish Law Commissioners are: The Honourable Lord Pentland, Chairman, Scottish Law Commission Laura J Dunlop QC Patrick Layden QC, TD Professor Hector L MacQueen Dr Andrew J M Steven The Chief Executive of the Scottish Law Commission is Malcolm McMillan. The Scottish Law Commission is located at 140 Causewayside, Edinburgh, EH9 1PR. The terms of this report were agreed on 3 July 2014. The text of this report is available on the Internet at: http://lawcommission.justice.gov.uk/areas/insurance-contract-law.htm http://www.scotlawcom.gov.uk/publications/ iii THE LAW COMMISSION THE SCOTTISH LAW COMMISSION INSURANCE CONTRACT LAW: BUSINESS DISCLOSURE; WARRANTIES; INSURERS’ REMEDIES FOR FRAUDULENT CLAIMS; AND LATE PAYMENT CONTENTS Page Detailed contents of chapters vii Table of abbreviations xviii Glossary of terms xix Main project publications xxi Main texts xxiii PART 1: INTRODUCTION Chapter 1: Introduction 3 Chapter 2: The scope of the recommendations and key definitions 18 PART 2: FAIR PRESENTATION Chapter 3: Fair presentation: introduction 27 Chapter 4: The current law 34 Chapter 5: The case for reform 45 Chapter 6: Overview of recommendations 62 Chapter 7: Detailed recommendations: the duty of fair presentation 69 Chapter 8: Detailed recommendations: the insured’s knowledge 82 Chapter 9: Detailed recommendations: the broker’s knowledge 102 iv Chapter 10: Detailed recommendations: the insurer’s 114 knowledge and other exceptions Chapter 11: Detailed recommendations: remedies 130 PART 3: WARRANTIES Chapter 12: Warranties: introduction 153 Chapter 13: The current law 157 Chapter 14: The case for reform 165 Chapter 15: Overview of recommendations 171 Chapter 16: Detailed recommendations: basis of the contract clauses 175 Chapter 17: Detailed recommendations: where the breach of warranty 178 is remedied Chapter 18: Detailed recommendations: terms relevant to 193 particular descriptions of loss PART 4: REMEDIES FOR FRAUDULENT CLAIMS Chapter 19: Remedies for fraudulent claims: introduction 207 Chapter 20: The current law 210 Chapter 21: The case for reform 218 Chapter 22: Overview of recommendations 222 Chapter 23: Detailed recommendations 230 PART 5: LATE PAYMENT Chapter 24: Late payment: introduction 249 Chapter 25: The current law 252 Chapter 26: The case for reform 260 Chapter 27: Overview of recommendations 276 Chapter 28: Detailed recommendations 280 PART 6: GENERAL ISSUES Chapter 29: Contracting out 303 Chapter 30: Good faith 317 Chapter 31: Compulsory insurance 329 v Chapter 32: List of recommendations 340 APPENDICES Appendix A: Draft Bill and Explanatory Notes 347 Appendix B: Proportionate remedies on variations 386 Appendix C: List of consultees 392 vi DETAILED CONTENTS OF CHAPTERS Paragraph Page PART 1: INTRODUCTION CHAPTER 1: INTRODUCTION 3 A new Insurance Contracts Act 1.5 4 Previous reports 1.7 4 A history of the project 1.9 5 The case for reform 1.16 7 Problems in practice 1.33 10 The effect of “quality uncertainty” 1.39 12 The approach of the draft Bill 1.49 14 Legislative competence and compatibility with the European 1.52 15 Convention on Human Rights and EU law Support for reform 1.53 15 The structure of this Report 1.58 16 Thanks 1.62 17 CHAPTER 2: THE SCOPE OF THE RECOMMENDATIONS AND KEY 18 DEFINITIONS Introduction 2.1 18 The definition of insurance 2.5 18 A contractual relationship: the insured and the insurer 2.10 19 Consumer and non-consumer insurance 2.13 19 One regime for all business insurance 2.22 21 The role of the Financial Ombudsman Service 2.31 22 Lead-in time 2.35 23 Application 2.37 24 Extent 2.38 24 vii PART 2: FAIR PRESENTATION CHAPTER 3: FAIR PRESENTATION: INTRODUCTION 27 Reforming the duty for non-consumer policyholders 3.4 27 The current duty of disclosure 3.7 28 Problems 3.11 28 Consultation on the duty of fair presentation 3.12 29 Support for reform 3.20 31 The structure of this Part 3.23 32 CHAPTER 4: THE CURRENT LAW 34 The Marine Insurance Act 1906 4.2 34 Section 17: a contract of the utmost good faith 4.3 34 Section 18: the duty of disclosure and exceptions to the duty 4.7 35 Section 19: disclosure by the broker 4.34 41 Section 20: misrepresentations 4.36 41 The insurer’s remedies for breach 4.44 43 Conclusion 4.49 44 CHAPTER 5: THE CASE FOR REFORM 45 Five problems with the current law 5.6 46 An evolutionary approach to reform 5.44 54 The contrary arguments 5.55 57 Conclusions on the need for reform 5.74 60 CHAPTER 6: OVERVIEW OF RECOMMENDATIONS 62 A duty of fair presentation for all non-consumer insurance 6.4 62 Building on the current law 6.5 63 viii The recommended reforms 6.6 63 A default regime 6.22 66 Differences between consumer and non-consumer insurance 6.27 67 CHAPTER 7: DETAILED RECOMMENDATIONS: THE DUTY OF FAIR 69 PRESENTATION Application: non-consumer insurance contracts 7.4 69 The duty of fair presentation 7.6 69 Disclosure 7.21 72 “A reasonably clear and accessible manner” 7.41 77 A duty not to make misrepresentations 7.47 78 Recommendations 81 CHAPTER 8: DETAILED RECOMMENDATIONS: THE INSURED’S 82 KNOWLEDGE The current law 8.7 83 The case for reform 8.31 88 Recommendation: defining what an insured “knows” 8.45 91 Recommendation: defining what an insured “ought to know” 8.77 97 Contracting out 8.92 100 Recommendations 100 CHAPTER 9: DETAILED RECOMMENDATIONS: THE BROKER’S 102 KNOWLEDGE The current law 9.5 102 The case for reform 9.19 106 The agent’s knowledge: our recommendations 9.25 107 Knowledge of an agent “responsible for arranging the insured’s 9.28 107 insurance” ix A reasonable search of information held by the insured’s agent(s) 9.37 109 Confidential information 9.41 110 Who does the agent act for? 9.47 111 The agent’s liability to the insured 9.48 111 Recommendations 112 CHAPTER 10: DETAILED RECOMMENDATIONS: THE INSURER’S 114 KNOWLEDGE AND OTHER EXCEPTIONS Section 18(3)(b): the current law 10.6 115 The case for reform 10.28 119 The insurer’s knowledge: our recommendations 10.34 120 Other exceptions to the duty of fair presentation 10.64 126 Recommendations 128 CHAPTER 11: DETAILED RECOMMENDATIONS: REMEDIES 130 The inducement test 11.6 130 Avoidance as the sole remedy: the case for reform 11.13 132 Remedies for deliberate or reckless breaches 11.35 136 Remedies for other breaches 11.57 140 The effect of a breach of fair presentation on future cover 11.85 144 Proportionate remedies in reinsurance and retrocession contracts 11.93 145 Variations 11.97 146 Contracting out 11.105 148 Recommendations 148 x PART 3: WARRANTIES CHAPTER 12: WARRANTIES: INTRODUCTION 153 Problems with the current law 12.4 153 Our recommendations 12.6 154 A history of the consultation process 12.8 154 Support for reform 12.15 155 The structure of this Part 12.16 156 CHAPTER 13: THE CURRENT LAW 157 Identifying a warranty 13.2 157 “Basis of the contract” clauses 13.6 158 The effect of a warranty 13.11 158 Excused non-compliance and waiver 13.20 160 Moderating harsh law through strict interpretation 13.24 161 Warranties in consumer insurance: other protection 13.32 163 Conclusion 13.39 164 CHAPTER 14: THE CASE FOR REFORM 165 The law is anomalous and unexpected 14.2 165 Problems in practice 14.5 166 The international context 14.7 166 Basis of the contract clauses 14.9 167 Support for reform 14.11 167 The opposing arguments 14.17 168 Reasons for rejecting a causal connection test 14.23 169 Conclusion: The need for statutory reform 14.28 170 xi CHAPTER 15: OVERVIEW OF RECOMMENDATIONS 171 An outline of the key recommendations 15.2 171 Issues
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