Insurance Law Monthly

Joyce v O’Brien [2012] EWHC 1324 (QB), a decision of Cooke J, follows hard on the heels of the decision of the Court of Appeal in Delaney v Pickett and Another [2011] EWCA Civ 1532 in discussing the circumstances in which the victim of a road traffic accident is precluded from recovering from the negligent driver (and his insurers) when the claimant was himself guilty of criminality leading up to the accident. The decision of Cooke J contains a very useful summary of the authorities to date and of the basis upon which recovery may be denied.

At the end of June 2012 the European Commission published a draft directive on Insurance Intermediaries and the Sale of Insurance Products (IMD2), which is designed to replace the Insurance Mediation Directive, European Parliament and Council Directive 2002/92/EC (IMD1). The review which has led to IMD2, which included a number of commissioned investigations, is stated to be prompted by the recent turbulence in financial markets, leading to a need for greater consumer protection particularly in the life market, and the uneven implementation of IMD1 across the EU. The effect of IMD2 is to extend the range of intermediaries within its ambit, to reduce conflicts of interest (in particular as regards commission disclosure), to further the prospects of a single market for mediation services and to increase the level of competency required for authorisation.

On 26 June 2012 the English and Scottish Law Commissions published Consultation Paper No 204 (England) and Discussion Paper No 155 (Scotland), the third in the series of consultation papers to emerge from the current review of insurance law. This document addresses the duty of disclosure in business insurance, and also warranties. Given the complex nature of the problems and the variety of views expressed to date, the Consultation Paper does not make firm recommendations but instead has made a number of suggestions which have been opened up for further consultation, many of which are based on whether business insurance should follow the lead of the Consumer Insurance (Disclosure and Representations) Act 2012. The proposals do not go that far but nevertheless involve significant changes to the Marine Insurance Act 1906. Responses are requested by 26 September 2012, with draft legislation to follow by the end of 2013.