In Corbin & King v AXA, Mrs Justice Cockerill found policyholders were entitled to an indemnity in respect of business interruption losses sustained during the Covid-19 pandemic. The case was heard on an expedited basis, with the judgement providing much-anticipated guidance in respect of Prevention of Access clauses in business insurance policies in light of last year’s business interruption insurance test case, FCA v Arch [2020] EWHC 2448 (Comm), [2021] UKSC 1. The decision is considered by Carola Binney of 4 New Square. Miles Harris of 4 New Square was instructed as junior counsel for A ..read more

In Doorway Capital Limited v American International Group UK Limited, Mr Justice Butcher held that liability for a breach of trust arising from an agreement between a solicitors’ practice and its provider of commercial funding was not covered by a policy complying with the SRA’s Minimum Terms and Conditions. The insured solicitors’ liability did not arise from “Private Legal Practice” and would, in any event, have been excluded by the Debts and Trading Liabilities Exclusion. The decision is considered by Miles Harris of 4 New Square. Clare Dixon QC of 4 New Square was instructed to represent A ..read more

In Spire Healthcare v Royal & Sun Alliance Insurance, the Court of Appeal considered the construction and operation of an aggregation clause in the context of hundreds of claims against a healthcare provider, all of which arose from the conduct of the rogue breast surgeon Ian Paterson. The Court took a sensibly straightforward approach to the identification of the “original cause” of the claims, finding that they had all arisen from Mr Paterson’s misconduct and could therefore all be aggregated pursuant to the clause. The decision is considered by Carola Binney of 4 New Square Chambers. Be ..read more

In Zurich Insurance PLC v Niramax Group Limited, dealing with a contract pre-dating the Insurance Act 2015, the Court of Appeal held that to establish inducement in cases of non-disclosure it was necessary for the insurer to show that the non-disclosure was an efficient cause of the underwriter writing the insurance on less onerous terms than would have been the case had the disclosure been made. It is not sufficient merely to establish that the less onerous terms would not have been imposed ‘but for’ the non-disclosure.  The case highlights an issue as to whether the same result would be ..read more

In UK Acorn Finance Limited v Markel (UK) Limited, HHJ Pelling QC applied the Supreme Court’s decision in Braganza v BP Shipping Limited [2015] UKSC 17 in the context of an insurance dispute. The Judge found that an insurer had acted irrationally in concluding that misrepresentations made by the insured in risk profile documents were fraudulent. In particular, when exercising its contractual decision-making power, the insurer had failed to give due weight to the maxim that it was inherently more probable that any misrepresentation had been made negligently rather than dishonestly. HHJ Pelling ..read more

In Niramax Group Limited v Zurich Insurance Plc [2020] EWHC 535 (Comm) the High Court considered the principles applicable to cases of avoidance for material non-disclosure, in a claim by a policyholder against its insurers. All counsel were from 4 New Square. The insured was represented by Ben Elkington QC and Ben Smiley, and insurers were represented by Graham Eklund QC and Carl Troman. The Court’s decision is considered by John Williams of 4 New Square. The facts Niramax collected and recycled waste. Its main premises (the recycling facility) were located at Thomlinson Road, Hartlepool. Nir ..read more

In Endurance Corporate Capital Limited v Sartex Quilts & Textiles Limited [2020] EWCA Civ 308, the Court of Appeal unanimously held that an insured is generally entitled to be indemnified in respect of property damage on the reinstatement basis, regardless of what it intends to do with the property following the insured event. It also ruled on the principles relevant to deductions from payments on the basis of betterment. The Court’s decision is considered by Miles Harris of 4 New Square. Ben Elkington QC of 4 New Square acted for the successful claimant insured. FACTS The claimant, Sartex ..read more

In Globe Church Incorporated v Allianz Australia Insurance Ltd & Anr [2019] NSWCA 27 the majority of the New South Wales Court of Appeal determined that a claim arising from an insurers’ refusal to indemnify the insured in respect of property damage accrued when the damage was sustained and not upon declinature. In doing so, it followed both other Australian intermediate appellate authorities and the established, if not greatly admired, English position. However, the dissenting minority mounted a powerful attack on the ‘legal fiction’ underpinning this approach. The Court’s decision is con ..read more

In Sartex Quilts & Textiles Limited v Endurance Corporate Capital Limited [2019] EWHC 1103 (Comm), David Railton QC, sitting in the Commercial Court considered the effect of the Court of Appeal’s decision in Great Lakes Insurance (UK) Ltd v Western Trading Ltd [2016] EWCA Civ 1003. He decided that whether an insured is entitled to be indemnified in respect of property damage on the reinstatement basis requires consideration of all the circumstances, including events both before and after the loss, to determine if that measure of indemnity would overcompensate the insured for the loss it su ..read more

How should the courts approach the scope of an insured’s notification of circumstances to insurers? What, if any, limit to the scope arises from the subject knowledge of the insured? In its most important decision on notification of circumstances since the Kidsons case, the Court of Appeal has addressed these questions in Euro Pools Plc v Royal and Sun Alliance Plc [2019] EWCA Civ 808: part-reversing the decision of Moulder J and finding that Euro Pools’ initial notification had a ‘hornet’s nest’ aspect as regards causation. The Court of Appeal’s decision is considered by Jamie Smith QC of 4 N ..read more