Reforming Insurance Law
Insurance law is an area which has remained unchanged for over 100 years. The Insurance Act 2015 (the Act) will have a significant impact on non-consumer insurance contracts post 12 August 2016.
The old law
The insured is under the duty of utmost good faith to disclose all facts material to the risk insured. Every material circumstance would influence the insurer in deciding to take the risk and when quantifying the premium. The smallest adjustment to the premium constituted materiality. A material non-disclosure (even if innocent) which increased the risk gave the insurer the remedy to avoid the policy. The new law under the Insurance Act 2015
The duty of "fair presentation" – 2 part test
First limb – duty to disclose information which the insured knows or ought to know having conducted a reasonable search
Whilst the duty to disclose remains, the Act requires the insured to make a fair presentation of risk by disclosing all relevant circumstances which the insured knows or ought to know. In determining what the insured knows, it will be key to assess the knowledge of senior management and/or decision-makers as well as the individuals putting the insurance in place (excluding brokers). The insurer is deemed to know what "should reasonably have been revealed by a reasonable search". The extent of what is deemed "reasonable" is objective and depends on the nature, size and complexity of the business. It is worth noting that, if as a consequence of a reasonable search made in the context of the ordinary course of business, a non-managerial/decision-maker is found to hold information, this too should be revealed. If the first limb is not satisfied, the insured's duty to disclose may be fulfilled by satisfying the second limb:
Second limb - duty to put the insurer on notice to make further enquiries
The insured may satisfy its duty if it discloses sufficient information to put a prudent underwriter on notice that it needs to make further enquiries for the purpose of revealing those material circumstances. The duty requires the disclosure to be reasonably clear and accessible. Knowledge of insured and insurer
An insurer's knowledge is now presumed if information is:
held by the insurer or an agent/employee who ought reasonably to have passed on the information...
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