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CHAPTER 16 Remedies

Good Faith and Insurance Contracts

Page 549




16.01 The reality of obligations that are imposed by the general law is signified by the powers that are exercisable by the court or the parties in the event that such obligations are ignored or violated. These powers are exercised through the remedies that have been made available by the development of the general law to give force to the rights that are the corollary of these obligations. In a simple world, one would be permitted to indulge in the fancy that where a legal right has been infringed, the court would remedy the wrong in such manner as it thought appropriate. However, the need for control over the jurisdiction of the court and the development of the English legal system have cast away such notions; we are left with the legacy of seeking to adjust the principles on which remedies traditionally are granted or exercised to the obligation which falls for consideration, namely the duty of the utmost good faith. The position under the general law, because of its perceived failings, has been amended by statute, namely by the Consumer Insurance (Disclosure and Representations) Act 2012 and the Insurance Act 2015. Before considering these statutory reforms, the position under the general law will be considered.

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