Four statutes this decade have significantly changed insurance contract law: the Third Party (Rights Against Insurers) Act 2010 (TPRAI), the Consumer Insurance (Disclosure and Representations) Act 2012, the Insurance Act 2015 and the Enterprise Act 2016. With this level of statutory reform it is perhaps hardly surprising that Mr Justice Turner decided, in Redman v Zurich on 26 July, against “an interpretation … tantamount to judicial legislation” when consider trigger dates for applying the TRPAI Act 2010 above.
Having been largely silent for a year about how to tackle the Vnuk problem (i.e. the extended scope of compulsory motor insurance to any normal use, anywhere, of any motor vehicle) the European Commission appears to have picked up the pace significantly in just announcing a new four-week consultation period running from 24 July to 21 August.
With Parliament taking a break for the summer we now have to wait until the Autumn for the Bill that will provide the legal underpinning of the changes to UK motor insurance that anticipates the introduction of autonomous vehicles. The notes to the Queen’s Speech in June explain that the main objective of the bill is “to ensure that compensation claims continue to be paid quickly, fairly and easily, in line with longstanding insurance practice.” No doubt the Bill, whenever introduced, is going to be very similar to the Vehicle Technology and Aviation Bill that Alistair discussed when that was introduced in (but did not survive) the last Parliament.
The Airmic Conference this year (June 2017) saw the publication of a paper considering the experience of practitioners in the ten months since implementation of the Insurance Act in August 2016. At this point the vast majority of commercial policyholders will have been through at least one Insurance Act process and thus a report from Airmic, which championed the reforms for that sector, does carry weight. At the conference, Huw Edwards also interrogated the “C-suite” Leadership Panel of brokers and insurers on their collective experience of the Act. The conclusion: so far so good but none wanted to be involved in the first dispute. Plainly the first judgment is going to attract considerable interest and commentary and so the reputational aspect is going to act as a weighty disincentive but which of the areas of the Act are working well and where are the first disputes likely to arise? Fair presentation, remedies for breach or policy terms?
2017 was intended to be a landmark year for the development of ‘genomic services’ – a term coined by the Department for Health in 2012 when it launched the Genomes project. Whilst this year’s initial deadline has passed and been pushed back to 2018, all signs are still pointing towards DNA sequencing being the next big revolution in healthcare advances, with the intention of sequencing 100,000 genomes from NHS patients.
In the early noughties, scientists were hard at work developing the publication of the first complete genome in an effort to provide a DNA bible by which future medicine would abide. However, in 2017 DNA sequencing is now making itself uncompromisingly known in the daily lives of healthcare practitioners in some of the most important fields of treatment.
Today, Star Wars Day, May the fourth 2017, marks the completion of the reform of UK insurance law that commenced in the middle of the noughties when the Law Commission picked up the task of reforming the Marine Insurance Act 1906. That Act oversaw and provided a framework for insurance as a product that has expanded both in value and type and to policyholders that could not have been foreseen when it was enacted 111 years ago. It largely stood the test of time and its concepts were (and are) exported internationally and so underpin the sector of the UK economy that originated in and which dominates London, EC3.
The final piece of the Insurance Act jigsaw applying to all policies commencing today is the “late payment” term and gives us the chance to review some of our earlier blogs. Continue reading
The late payment provisions introduced by the Enterprise Act 2016 will apply to insurance policies entered into from 4 May 2017, a date that will be very soon upon us. That said, on the basis that any claim made for late payment will have to be ‘late’ as provided for by the Act it’s likely that it’s going to be some time yet before under any such policy there’s been an insurance claim made; the passage of time during which insurers have made no payment; loss sustained allegedly as a result of delay and a claim for late payment formulated. But as the insurance industry has largely recognised the time for ensuring that there’s the appropriate ‘bullets to fire’ in place to deploy by way of a defence to such a late payment claim is now. Continue reading
The letter to be delivered on Wednesday to the European Commission will have the most profound consequences for this country: your own view as to whether this will be for good or ill will probably reflect your position as a Remoaner or a Brexiteer. What is however certain is that whether the UK’s Article 50 letter is brief and to the point or rather longer as a positioning paper, the devil will rest in the detail of the subsequent negotiations of how Britain and Europe untangle 43 years of EU Law and jurisprudence. The knottiness of the problem is illustrated by a report (in fact merely the 17th report of the session) published by the House of Lords EU Committee which considers some of the access to justice issues that are entangled with Brexit.
The 2016 Queen’s Speech included a “Modern Transport Bill” which was intended to set out the compulsory arrangements for insuring automated driving on UK roads. This title has been shelved and today the Vehicle Technology and Aviation Bill was introduced in Parliament to address this issue.
In my blog yesterday (Late payment: how much?) I considered how the case of Sprung, where an award for “late payment” was declined in 1999, would be treated under the new provisions of the Insurance Act. Although awards will be able to be made and could in certain circumstances prove to be substantial, policyholders will still need to overcome the usual hurdles of establishing a legal claim for contractual damages; causation, foreseeability and mitigation.
Policyholders will still have to show that the loss was in the reasonable contemplation of the parties, as set out in Hadley v Baxendale  EWHC. In that case Hadley contracted with Baxendale to take a broken crankshaft to the place where it was to be repaired and to bring it back again. Baxendale delivered the part late and Mr Hadley claimed that as a consequence, the mill could not operate, resulting in loss of profit. Hadley sued Baxendale for consequential losses however, the court found that the mere fact that a party is sending something to be repaired does not indicate that the party would lose profits if it is not delivered on time. The court held that the damages were too remote.
In general, contractual damages are less generous than tortious and should reflect what was in the contemplation of the parties at the point the contract was made. Damages to feelings are not recognised as recoverable for breach of contract but may be where one of the major or important objects was to provide “enjoyment, security, comfort or sentimental benefit” or “pleasure, relaxation and peace of mind”. It seems very likely that the marketing and sales materials for many policies will encompass the anticipated benefits described in the words we have extracted from two relevant judgments. Additionally the nature of an insurance contract which requires the commercial policyholder to provide information about its business and to make a fair presentation is going to increase the risk for the underwriter that there are losses that fall within the reasonable contemplation of the parties and extend the heads of damages that could be payable. Much will however depend on the nature of the insurance policy and the information provided.
The changes do, as we have observed in previous blogs, bring insurance in to line with general contractual principles. In that respect, making insurance less unusual, is commercially and reputationally to be welcomed. We are aware of market concerns that arise from this imminent change in the law which is apparently welcome news for policyholders but it is important for insurers to remember that they should not be afraid of disputing claims where there are reasonable grounds to do so.
Written by Joanne McCartney, associate