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Lloyd's Maritime and Commercial Law Quarterly

MATERIALITY, NON-DISCLOSURE AND FALSE ALLEGATIONS: FOLLOWING THE NORTH STAR?

James Davey *

The Court of Appeal decision in The North Star shows continuing judicial dissatisfaction with the doctrine of utmost good faith in insurance contract law. As a vehicle designed in the 18th century to counteract inequalities of access to information, it has failed to keep pace with modern circumstances. However, the most recent “hard” case represents an age-old problem: whether to require disclosure of information known by the insured to be untrue, but not yet disproven. This article considers three potential mechanisms for reform: the concept of materiality; the doctrine of inducement and ex post controls on the remedy of avoidance.

I. INTRODUCTION

The undeveloped nature of the doctrine of utmost good faith in insurance law has once again come under the scrutiny of the Court of Appeal in The North Star .1 It appears that reform is closer than it has been for some time. Waller LJ began his review of the relevant legal principles by noting “[t]he law in this area is… capable of producing serious injustice” and concluded by welcoming the future review of the area by the Law Commission.2 This focus on legislative interference, rather than judicial reform, was shared by Longmore LJ.3 Whilst noting the interest of the Law Commission,4 this paper focuses on the scope for judicial intervention, as the Law Commission has previously called for reform of the doctrine of utmost good faith, with little success.5

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