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Lloyd's Maritime and Commercial Law Quarterly

United Kingdom insurance decisions 1999

Gerard McMeel *

A. Insurance and Investment1

1. Investors Compensation Scheme Ltd v. West Bromwich Building Society 2

Many elderly investors were persuaded to enter into Home Income Plans by an independent financial adviser, Fisher Prew-Smith (FPS), a member of FIMBRA, following a national press advertising campaign. The plans were targeted at retired people owning residential properties, either unencumbered or substantially unencumbered by borrowing, who had modest incomes, often only the State pension. Each investor was persuaded to mortgage or remortgage their property to secure a loan of up to 40% or 50% of its value. Typically, no instalments were to be paid in respect of the mortgage, but interest was to be rolled up and added to the sum secured. Repayments were only required once the total debt exceeded 60% or 62 2/3% of the value of the property (“the trigger point”). The sums released were usually invested by FPS in bonds or other investment products. The plans’ success depended upon continuing future growth of the underlying investments and further growth in the residential property market. The plans were sold by a sales force with no formal training and no effective supervision, who told the investors there were “no risks”, that the plans were “absolutely secure” and that “nothing could go wrong with the scheme”. The mortgages were provided by the West Bromwich Building Society (WBBS) which, with a new, ambitious chief executive at the helm, was keen to increase its portfolio of non-traditional, non-status lending.3 In total some 823 mortgages were arranged with WBBS as a result of introductions by FPS. Neither FPS nor WBBS had carried out any methodical analysis of the likely performance of the plans against historical fluctuations in the levels of interest rates and property values.
In practice the trigger point for most plans was reached very quickly. The plans had been launched against a background of a slow-down in the property market, which soon

* Lecturer in Law, University of Bristol; Barrister, Guildhall Chambers; Visiting Professor, School of Law, University of South Carolina, 2000–2001.
2. Decided 15 January 1999. An edited version of the judgment is reported at [1999] Lloyd’s Rep. PN 496. The unreported transcript contains further factual background and individual consideration of the lead cases. A preliminary issue concerning the construction of the assignment document transferring investors’ claims to the ICS in return for compensation had earlier reached the House of Lords, giving rise to a leading modern discussion of interpretation of contracts: Alford v. West Bromwich Building Society; Armitage v. West Bromwich Building Society; Investors Compensation Scheme Ltd v. West Bromwich Building Society [1997] C.L.C. 348 (Ch.D.: Evans-Lombe, J., and C.A.) 1; [1998] 1 W.L.R. 896 (H.L.). The decision of the House of Lords is analysed in G.McMeel, “The rise of commercial construction in contract law” [1998] LMCLQ 382.
3. I.e., not dependent of any assessment of the borrower’s ability to repay.

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