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Insurance Law Monthly
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Articles for August 2010
Stay of English proceedings
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12 August 2010
The effect of the Brussels Regulation, Council Regulation (EC) No 44/2001, on the common law discretion of the English courts to stay their own proceedings on
forum non conveniens
grounds, has been profound. Certain propositions can be put forward. If there are earlier parallel proceedings elsewhere in Europe, a stay of the English action is mandatory. If the English proceedings are first, and the defendant is domiciled in England, then the English courts have no power to stay and must hear the case. One unresolved question is, however, whether the English courts are entitled to stay proceedings brought against a defendant domiciled in Enlgand if there are parallel proceedings outside Europe. The point arose in an insurance context in
Royal & Sun Alliance Insurance plc v Rolls-Royce plc
[2010] EWHC 1869 (Comm), although Blair J was able to dispose of the case without having to answer the question.
Utmost good faith
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12 August 2010
The decision of David Steel J in Persimmon Homes Ltd v Great Lakes Reinsurance (UK) plc [2010] EWHC 1705 (Comm) for the most part turned on its facts. There were admitted misrepresentations and failures to disclose on the part of an applicant for after the event cover to fund proceedings against a third party. The issues were whether those breaches had induced the insurers to enter into the policy and, if so, whether the insurers were precluded by their conduct from exercising the right to avoid.
Payment of the premium
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12 August 2010
Section 53 of the Marine Insurance Act 1906 sets out a rule which, by any standards, is anomalous. The section provides that the premium under a marine policy is to be paid by the broker and not by the assured. The rule has its origins in 18th century market practice and has created a number of legal and practical difficulties. In their eighth Issues Paper, published in July 2010, The English and Scottish Law Commissions have proposed the abolition of the rule. Responses to the Issues Paper are requested by 19 October 2010.
Credit hire
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12 August 2010
Motor liability insurers are facing an ever-increasing bill for the costs incurred by the victims of their assureds in hiring replacement vehicles, particularly where the hiring is done under credit hire arrangements which inflate the ordinary cash price of such hiring. The general rule is that the victim is confined to the spot rate for hire where such hiring is necessary. If the victim does not need to hire a replacement vehicle (or does not need to use credit hire) he will still be entitled to damages but they will be assessed on a different basis. What that basis may be was discussed by the Court of Appeal in Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2010] EWCA Civ 647.
Total loss and piracy
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12 August 2010
David Steel J in Masefield AG v Amlin Corporate Member Ltd [2010] EWHC 280 (Comm) has discussed at length the ability of the assured to recover under cargo policy for goods detained by pirates and then released following the payment of a ransom. In such a case it would seem from the judgment that there is no loss at all.
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