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Lloyd's Maritime and Commercial Law Quarterly

THIRD PARTIES RIGHTS AGAINST INSURERS REFORMED

Third Parties (Rights against Insurers) Act 2010
The Third Parties (Rights against Insurers) Act 2010 (“the Act”) received Royal Assent on 25 March 2010 and, subject to minor modification, gives effect to the recommendations made by the Law Commission in 2001.1 The Third Parties (Rights against Insurers) Act 1930 is repealed.2
The Act makes improvements to the position of a third-party claimant where there is liability insurance to meet his claim. The reforms result in a new mechanism to establish the respective liabilities of insured and insurer, codification of recent case law, minor restriction to insurer defences, and clarification of procedural rights to information. The provisions remain faithful to the philosophy of the previous statute: the rights created are dependent upon the insured’s entering into one of the insolvency processes.3 The Law Commission considered that major reform in relation to the creation of a direct right of action, irrespective of the solvency position of the insured, went beyond the scope of the reforms contemplated. As a matter of legal principle, this is unfortunate, because these provisions continue to perpetuate a perverse interest in forcing the insured, as distinct from the uninsured, into one of the insolvency processes. What is necessary to trigger the statutory transfer of rights is the combination of insured liability as a matter of fact (rather than, as established) and manifestation of the insured’s insolvency.

Establishing liability

The claimant acquires the insured’s right to indemnity and the right to commence proceedings for a declaration as to the insurer’s liability.4 The claimant’s rights are restricted to the amount of his claim on the insured; if the insurance is insufficient, the claim against the insured is preserved for the remainder.
As with the previous provision, the rights arise once the insured has become a “relevant person”, a status which encompasses most of the current forms of UK insolvency process.5 For individuals, these are notably a bankruptcy order, an Individual Voluntary Arrangement (“IVA”), debt relief order, and administration orders under the County Courts Act 1984 (there is particular treatment of deceased insolvents and administration


CASE AND COMMENT

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