Reform of ‘non-disclosure’ in UK marine insurance law: Exotic Approach or Original Understanding?
"Reform of `non-disclosure' in UK marine insurance law: Exotic Approach or Original Understanding? " Mr. Poomintr Sooksripaisarnkit A marine insurance contract is a contract of utmost good faith (uberrimae fidei), which requires the duty of disclosure prior to the conclusion of a contract. This is essentially stated in ss. 17 and 18 of the Marine Insurance Act 1906. Despite the 100-year application of these provisions, the defects are shown and the injustice occurs. The voluminous case laws and their complexity suggest nothing else apart from that this area of law is highly problematic. The criticisms are essentially rested upon two grounds: (1) the material fact which rests upon the view of the `prudent insurer' makes it difficult for the assured to determine for himself the fact to be disclosed (2) in case of non-disclosure, the remedy of avoidance applies regardless of culpability of the party in breach. As such, the reform to the law is inevitable and the purpose of this thesis is to suggest how reform can be achieved. Two possible ways to bring the change to the law are considered. These are (1) to adopt the alternative solutions identified in other jurisdictions or (2) to re-consider whether the law on duty of disclosure as has been recognised since the seminal judgment of Lord Mansfield in Carter v. Boehm (1766) 3 Burr. 1905 has been correctly applied. This thesis concludes that the judgment of Lord Mansfield has been misunderstood in the UK and that, to constitute non-disclosure, only the deliberate intention is required and that the remedy of avoidance is justifiable upon the public policy ground. Such duty should be based upon the broad notion of good faith (bonge fide: ), a flexible concept of fairness and justice. In the end, the draft provisions are formulated to reflect these suggestions. Table of
Do Insurers Know Best - An Empirical Examination of the Extent that Insurers Comply with Their Statements of Practice and Whether They Are a Satisfactory Substitute for Reform of the Law
It is widely acknowledged that the "law of insurance contains a number of doctrines which can in theory operate against the interests of the innocent insured person." The courts on numerous occasions have accused the law of operating harshly and of favouring the insurer. This view has been endorsed by academic lawyers, the Law Commission and consumer organizations. Even insurance companies themselves recognize the potential unfairness of the law and have admitted that "in practice they do not take advantage of their full legal rights."Parliament has taken an interest in the manner in which insurance companies have operated ever since 1870. But the major area to escape reform is the insurance contract itself. The explanation often put forward to justify this is that the insurance industry has been prepared to regulate itself. In recent times the Statements of Insurance Practice have provided the most noticeable examples of such self-regulation. These take the form of two documents drafted by the Association of British Insurers (ABI) with one relating to general insurance and the other to long-term business. They were forced upon the insurance industry as the price of keeping insurance contracts out of the otherwise wide scope of the Unfair Contract Terms Act 1977. Introduced in the same year as that Act, the Statements aim to mitigate the severity of the law and set out "normal insurance practice" to be followed by the 839 registered UK insurance companies in their dealings with policyholders. It has been claimed that the Statements work well in practice. Certainly, as will be seen, they represent an improvement upon the strict law of insurance. However, there has been almost no investigation of how the Statements actually operate: no empirical evidence has been published as to how they are viewed by the industry, and whether they are complied with in practice. It is the aim of this article, by using the results of a small-scale survey of insurers carried out by the authors, to assess whether the Statements of Practice are working effectively and to determine whether they represent a satisfactory substitute for reform of the law. In particular, it looks at the problems caused by enforcing the Statements. A series of interviews were conducted with representatives of the Association of British Insurers, the Insurance Ombudsman Bureau, the former Law Commissioner responsible for insurance and five insurance companies. During the structured interviews questions were asked with the aim of obtaining a realistic picture of the way in which the self-regulatory scheme is implemented. In addition, correspondence was conducted with the Department of Trade and Industry concerning the enforcement of the Statements. The overall result of this study offers an indication of the extent to which insurers adhere to their undertaking not to apply the strict laws of insurance. In addition, by comparing present-day practice with what would have been the position had the proposals for reform been enacted, conclusions can be drawn as to whether the Statements provide adequate protection for the insurance consumer and whether legal reform is needed.
Flocculation tests with electrophoretically separated serum proteins.
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