George Green LLP Welcomes Two New Family Solicitors to Sutton Coldfield Office
George Green LLP is thrilled to announce the expansion of its Family Law team with the...
The Insurance Act 2015 puts the duty on policyholders to provide a “fair presentation of the risk” to the insurer of entering the policy. This requires “disclosure of every material circumstance which the insured knows or ought to know.”
What does this mean in practice?
The case
In the case of Berkshire Assets (West London) Limited v AXA Insurance UK plc [2021] EWHC 2689 (Comm), the policyholder claimed on the policy following an escape of water and damage at its property.
AXA declined the claim because the policyholder hadn’t disclosed criminal charges that had been brought against one of its directors, a former Goldman Sachs employee. He had been charged for allegedly participating in a scheme to defraud the Malaysian Government. These charges were subsequently dropped but had been live at the time the policy was renewed.
The court considered the duty of fair presentation and (1) whether the criminal allegations were a “material circumstance” and (2) whether AXA would have offered the policy had it known about the charges. The court held that the criminal charges were a material circumstance and that AXA would not have offered cover had they known about them.
What does this mean for policyholders?
- This case emphasises the importance for policyholders of getting the application and (any subsequent renewals) right. Complete it carefully and properly. A lot is at stake – the policyholder’s claim was for considerable damage in a block of 40 apartments.
- Challenge the insurer to prove that it would have declined cover had it known about the disclosure in question. In this case, AXA was able to produce documentary evidence that had it known about the criminal charges it would not have offered cover. In the absence of that evidence the decision might have been different.
- Ensure you instruct an expert with the appropriate experience if you issue court proceedings. The court did not refer to the policyholder’s expert during the proceedings because he had “no relevant experience” and even the policyholder’s barrister did not rely upon his report.
We can advise you if insurers have declined to cover you. Contact George Gwynn on ggwynn@georgegreen.co.uk or via 01384340563.