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26 GOOD FAITH AND CLAIMS

Reinsurance Practice and the Law

Chapter 26 GOOD FAITH AND CLAIMS INTRODUCTION 26.1 The remedy for failure to disclose material facts to a reinsurer which induces the reinsurer to enter into a contract or to enter into the contract on certain terms is avoidance ab initio for contracts entered into prior to 12 August 2016, when the Insurance Act 2015 came into force. For contracts entered into on or after 12 August 2016, the Insurance Act has altered that position (provided that the reinsurer has not contracted out) where the reinsured has failed to make a fair presentation (which is defined as disclosure of every material circumstance which the reinsured knows or ought to know or, failing that, disclosure which gives the reinsurer sufficient information to put a prudent reinsurer on notice that it needs to make further enquiries for the purpose of revealing those material circumstances). It is now possible to avoid a policy (and keep the premium) only where the misrepresentation or non-disclosure was deliberate or reckless. In all other cases, a scheme of proportionate remedies will apply, as follows:

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