This paper considers the current joint proposals of the Law Commissions, made as part of their insurance law project, for the reform of the pre-contractual duty of disclosure of the agent to insure. Outside of the exceptional case where an agent is defrauding his principal, the law in this area has not much troubled the courts, suggesting that real, practical problems may be few. This paper considers the existing law, how far the proposals involve departing from it and the rationale given for the same. It is concluded that the need for the proposed reforms as regards agents to insure is not obvious and that there may be wisdom in not rocking the boat.

The use of agents to insure in the London insurance market is, of course, a widespread and longstanding practice and as such is a potentially fertile area for disputes. However, if the reported cases are anything to go by,1 problems which are specific to the knowledge of the placing broker, where the insured does not also possess the same knowledge, have been relatively few and it is fair to say that the Marine Insurance Act 1906, s.19, which governs the agent’s duty to disclose, has had a singularly undistinguished career in the law reports. The originally enacted s.19 has now been renumbered, with no change of substance, as s.19(1) and will therefore be referred to throughout this article in its current form.2 Section 19(1), which sets out that a broker must disclose the material circumstances that he knows, barely merited a mention in the law reports until it was already nearly 80 years on the statue book. Section 19(1)(b), which says that the broker must disclose that which the insured must disclose, has hardly ever been mentioned. This seems to suggest that the law in this area has served and continues to serve the business insurance community reasonably well, its relative antiquity notwithstanding.