Proof And Duty To Warn - Contact (Print And Packaging) v Travelers Insurance

Case Alert - [2018] EWHC 83 (TCC)

Judge comments on issues of proof and duty to warn in a property and BI insurance claim case

This case involved a claim under a combined insurance policy . The claimant insured sought payment under the physical damage and business interruption sections of the policy following the failure of a press at its print production facility. Much of the case turns on the particular factual circumstances but the judge made some comments which are of more general interest, including the following:

Following a sale of the insured's business, the insured did not take steps to retain access to relevant historic data for the purpose of the claim. The judge concluded that "In those circumstances the view I take is that where the claimant might reasonably have been expected to provide more documentation in relation to a particular issue but has not done so I should not give it the benefit of the doubt in relation to that issue in circumstances where it has failed to take proper steps to ensure that relevant electronic information was preserved for the purposes of this claim". Similar issues arose because the insured did not call evidence from a number of witnesses who might have provided relevant evidence. Although he declined to draw an adverse inference about that (in part because the insurer had not notified the insured that it would raise this issue at trial), the judge held that he would not give the insured the benefit of the doubt where the insured might reasonably have been expected to at least take some steps to obtain a witness statement on a particular issue. One issue in the case was whether the claim was caused by subsidence (which was covered under the policy) or settlement (which was excluded). The policy contained no express definition of subsidence or settlement, so the judge considered the Oxford English Dictionary definitions for these words, as well as the experts' reports (which in turn referred to an Institution of Structural Engineers document) and the FOS's definitions. Referring to an argument raised by the insurer, the judge also commented that "An ordinary person would be surprised if the meaning of the same words in two clauses of the same insurance policy could differ significantly solely depending on whether the introductory "the" is present or absent". Given that the insured was seeking to argue that its claim fell within an exception to an exclusion, the judge held that it had the burden of...