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Within the current determination in Berkshire Property (West London) Ltd v AXA Insurance coverage UK Plc [2021] EWHC 2689 (Comm), Lionel Persey QC, sitting as a Choose of the Excessive Courtroom, gave the primary English determination on the insured’s obligation of truthful presentation as set out within the Insurance coverage Act 2015 (the ‘Insurance coverage Act’). The choice addresses two elementary rules arising from the obligation, particularly what constitutes a cloth circumstance and whether or not the failure to reveal induced AXA to put in writing the danger i.e would AXA in truth have declined the danger had the fabric circumstance been disclosed? The choice addresses each the statutory rules as set out within the Act in addition to vital rules related to materials circumstances established by authorities previous to the Act which stay intact.

The Courtroom thought of the obligation of truthful presentation as set out in Half 2 of the Act, which requires, in Part 3(4)(a) “disclosure of each materials circumstance which the insured is aware of or must know”. A ‘materials circumstance’ is outlined in Part 7 of the Act, as follows:

(3) A circumstance or illustration is materials if it might affect the judgement of a prudent insurer in figuring out whether or not to take the danger and, in that case, on what phrases.

(4) Examples of issues which can be materials circumstances are –

(a) particular or uncommon information referring to the danger,
(b) any explicit issues which led the insured to hunt insurance coverage cowl for the danger,
(c) something which these involved with the category of insurance coverage and area of exercise in query would generally perceive as being one thing that needs to be handled in a good presentation of dangers of the kind in query.

The Courtroom additionally addressed whether or not AXA had a treatment below Part 8 (and Schedule 1) of the Act as a consequence of the failure to reveal the fabric circumstance in breach of the obligation of truthful presentation:

Part 8 Cures for breach
(1) The insurer has a treatment towards the insured for a breach of the obligation of truthful presentation provided that the insurer exhibits that, however for the breach, the insurer –
(a) wouldn’t have entered into the contract of insurance coverage in any respect,
or
(b) would have achieved so solely on completely different phrases…”.

In Berkshire Property, the claimant policyholder was a three way partnership automobile integrated in 2017 with the target to buy and develop a property in Brentford. In 2020, a defective sprinkler prompted important water harm to round 40 flats and different communal areas within the property. Accordingly, the claimant offered claims to AXA, the defendant insurer, below its Contractors’ All Danger coverage and its Enterprise Interruption coverage.

The coverage in query had been renewed in November 2019 and included a ‘truthful presentation of threat’ clause which particularly acknowledged:

“The proposer for insurance coverage, its companions or administrators or some other one who performs a big position in managing or organising the enterprise actions, haven’t, both personally or in any enterprise capability, been convicted of a legal offence or charged (however not but tried) with a legal offence”

AXA denied the declare on the premise that the claimant had didn’t speak in confidence to it the truth that considered one of its administrators was the topic of legal prices in Malaysia filed in August 2019 (due to this fact previous to the time the coverage was renewed). The fees had been subsequently dropped in October 2020 following a worldwide settlement.

Earlier than the Courtroom, AXA submitted that, had it been conscious of the costs on the time of renewal, it might not have agreed to offer insurance coverage to the claimant. The claimant contended that the costs didn’t represent a cloth circumstance as a result of (i) the costs associated to an organization which was not linked to the claimant; (ii) the director was not personally concerned (iii) the director was not going through allegations of non-public involvement in fraud or different wrongdoing; and (iv) the costs had been politically and commercially motivated.

There was important debate and evaluation as as to if the costs had been a “ethical hazard” to be disclosed as a cloth circumstance. On condition that there was no settled determination as to the that means of ethical hazard, the Choose determined that the Courtroom ought to look to the statutory definition of “materials circumstance” in part 7(3) and (4) of the Insurance coverage Act when contemplating the information of the case earlier than it.

When making his evaluation as as to if the costs did in truth represent a ‘materials circumstance’, the Choose agreed with AXA that related the well-established rules had not been modified in mild of the Insurance coverage Act. Certainly, it was famous that: “the ideas of “materials circumstance” and “prudent insurer” had been deliberately taken from the present statute and [the Law Commission] would count on the present case legislation to proceed for use to interpret them”. 5 core rules had been then articulated by the Choose:

1. The materiality of a selected reality is a query of reality and is to be decided by the circumstances of every case.
2. Materiality is to be examined on the time of placement and never by reference to subsequent occasions.
3. Information elevating doubts as to the danger are enough to be materials. It’s not mandatory for the information to be proven, with hindsight, to have really affected the danger.
4. The general impact of the ‘prudent insurer’ check is that whether or not there was a good presentation of the danger stays to be assessed principally from the attitude of an insurer.
5. A circumstance doesn’t should be decisive for the hypothetical prudent insurer in figuring out whether or not to take the danger or on what phrases.

Recognising that it was effectively established {that a} cost of a legal offence will typically represent a “materials circumstance”, and making use of the above rules to the information, together with the proof given by AXA’s underwriters, the Choose discovered that the costs did certainly represent a ‘materials circumstance’ for the needs of the Insurance coverage Act and due to this fact ought to have been disclosed on the time the coverage was renewed. If the costs had been disclosed, AXA wouldn’t have written the insurance coverage. The claimant’s declare due to this fact failed.

This case is a helpful reminder of the rules relevant to points referring to ‘materials circumstances’ and a welcome affirmation that the related rules present in case legislation haven’t been outdated by the Insurance coverage Act. From a business and sensible perspective, it’s a helpful immediate for policyholders to recognise their obligation of truthful presentation and the necessity for compliance with that obligation on the inception of any insurance coverage coverage and on every renewal.

Article authored by Mark Everiss and Ben Sharrock

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