Any new law does bring some uncertainty even where carefully drafted.
The Law Commission was aware of those concerns and the Insurance Act 2015 deliberately uses terms that, although not “modern”, reflect particular terminology familiar to insurance practitioners and judges.
This has been done to avoid the uncertainty that change can bring. However as sure as a lawyer follows an ambulance there will be some litigation that will arise from the Act. One would certainly hope, with legislation that was carefully constructed by industry consultation, that those disputes will be around issues that are generally interpretative of the new areas of the law, and not parties taking points either because the law proves to be poorly drafted or, like Mount Everest, because it is there. And so, having worked so hard to explain and prepare customers for the new law (and listened to concerns) where do we think might be the problem areas? Fair presentation? Proportionate remedies? Contracting out? Warranties? Irrelevant terms? The list of itself could extend and even in its short form, suggests that the Supreme Court might be engaged fairly frequently.
Our overview is that this is a good piece of legislation that will stand the test of time and will outlast the career of this blogger and most of the readers.
Disputes will arise, some thrown up by unusual facts and some by the new law: the question is which areas of the new law will create all this aggravation. I consider this in my next blogs.
Written by Terry Renouf, partner, BLM