The Good, The Bad & The Ugly: 100 Cases Every Policyholder Needs To Know. #15 (The Good & Bad). West Wake Price & Co v Ching

• Published date: 21 September 2021
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Criminal Law, Insurance Laws and Products, Trials & Appeals & Compensation, Professional Negligence, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Fenchurch Law
• Author: Mr Jonathan Corman and Toby Nabarro

Welcome to the latest in the series of blogs from Fenchurch Law: 100 cases every policyholder needs to know. An opinionated and practical guide to the most important insurance decisions relating to the London / English insurance markets, all looked at from a pro-policyholder perspective.

Some cases are correctly decided and positive for policyholders. We celebrate those cases as The Good.

Some cases are, in our view, bad for policyholders, wrongly decided, and in need of being overturned. We highlight those decisions as The Bad.

Other cases are bad for policyholders but seem (even to our policyholder-tinted eyes) to be correctly decided. Those cases can trip up even the most honest policyholder with the most genuine claim. We put the hazard lights on those cases as The Ugly.

#15 (The Good & Bad)

West Wake Price & Co v Ching [1957] 1 WLR 45.

This case is known for three important principles of insurance law, which we consider below.

The Plaintiffs (a firm of accountants) were insured by the Defendant (a Lloyd's underwriter) for any "claim" in respect of an act of neglect, default or error. A clerk employed by the Plaintiffs had stolen '20,000 which had been entrusted to the firm by a client, who duly issued a writ against the Plaintiffs for:

1. Damages for negligence in failing properly to supervise the clerk;
2. Monies had and received; and
3. Monies converted by the Plaintiffs for their own use.

The case is a difficult one for the modern reader, not least because the 2^nd & 3^rd grounds of the claim (money had & received, and conversion) are relatively unfamiliar. For present purposes, both can be regarded as the equivalent to vicarious liability for the clerk's fraud.

A further source of difficulty is that the case was concerned with an obscurely drafted and now archaic form of QC clause. This required the insurer (i) to settle a claim if it appeared likely that there would otherwise be a liability covered by the policy, but also (ii) to settle a claim which was not likely to result in liability at trial but where the policyholder nevertheless reasonably objected to defending it (eg, because of adverse publicity).

Thus in West Wake the Plaintiff accountants argued that the insurer was obliged to settle the claim because (i) they did indeed wish to avoid the publicity of a trial and, as they argued, (ii) "the claim" based on their allegedly negligent failure to supervise the clerk was ostensibly covered by the policy.

Devlin J found in the insurer's favour, and...