Insurance Law Monthly

On 1 March 2011, in a much anticipated and expected decision, the European Court of Justice has ruled in Association Belge des Consommateurs Test-Achats ASBL v Kingdom of Belgium Case C-236/09 that, with effect from the end of 2012, it will no longer be possible for insurance companies to use actuarial and statistical data to justify charging different premiums to men and women for insurance cover. The implications will be felt particularly strongly by motor and life insurers, and much has been written about the likely outcome. The present article explains exactly how the court reached its much-criticised conclusion.

The Motor Insurers Bureau Untraced Drivers Agreement 2003, and its predecessors, has generated a good deal of complex litigation. The general scheme of the agreement is that the victim of an untraced driver can bring a claim for damages against the MIB, which must investigate the claim and then award damages as if the action had been brought in the courts. The administrative nature of this procedure has given rise to a series of complaints about its operation. The most recent, Carswell v Secretary of State for Transport and the Motor Insurers Bureau [2010] EWHC 3230 (QB), concerned three matters: the fact that the MIB is not independent of the insurance industry; the cap on the recovery of legal costs; and the apparent absence of any right of appeal against MIB procedural irregularities.

The Supreme Court has confirmed, in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, that mesothelioma cases form an exceptional category in English tort law, and that the test for causation is far more generous to the victim than in any other situation.

In Garnat Trading & Shipping (Singapore) Pte Ltd v Baominh Insurance Corporation [2010] EWHC 2578 (Comm) a floating dock was seriously damaged in a tropical storm. The insurers under the policy covering the voyage alleged both that the assured had failed to disclose material facts relating to the fitness of the floating dock to make the voyage and that the floating dock was unseaworthy. Much of the decision is taken up with factual evidence, but some points of principle do emerge.