Lloyd's Insurance Law Reporter


[2019] CSOH 32, Court of Session, Outer House, Lady Wolffe, 3 April 2019

Insurance - Duty of fair presentation - Waiver of disclosure - Insurance Act 2015, section 5(3)(e)

This claim arose from a fire at commercial premises owned by the assured and his company Kaim Park, in Glasgow. The application for insurance had been through brokers, who had prepared a market presentation of some 20 pages using their own software. The presentation identified the claimant and Kaim as the clients. There was a moral hazard declaration in the form of a drop-down menu requiring boxes to be ticked against any true statement. One of the statements was "no proposer, director or partner of the insured under the contract in question has ever been made bankrupt, insolvent, or subjected to such proceedings", and the box was left without a tick. When the presentation was sent to RSA, it showed the word "none" in respect of all of the statements in the drop-down menu, so it was not clear to which statements the word "none" related. The presentation was followed by an email from RSA dated 24 March 2017 attaching RSA's terms. This stated: "Insured has never ... been declared bankrupt or insolvent ...[or] had a liquidator appointed". The brokers responded that the email was accurate. The claimant had been the director of four companies that had been dissolved after insolvent liquidation or had been placed into insolvent liquidation in the previous five years. RSA sought to avoid the policy on the ground of non-disclosure. The claimant argued that RSA had waived disclosure.

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