{"id":1443,"date":"2024-10-22T23:15:53","date_gmt":"2024-10-22T15:15:53","guid":{"rendered":"https:\/\/fenchurchlaw.com\/en-sg\/?p=1443"},"modified":"2024-10-22T23:16:30","modified_gmt":"2024-10-22T15:16:30","slug":"the-good-the-bad-the-ugly-24-the-mostly-ugly-tynefield-care-ltd-and-others-v-the-new-india-assurance-company-ltd","status":"publish","type":"post","link":"https:\/\/fenchurchlaw.com\/en-sg\/the-good-the-bad-the-ugly-24-the-mostly-ugly-tynefield-care-ltd-and-others-v-the-new-india-assurance-company-ltd\/","title":{"rendered":"The Good, the Bad & the Ugly: #24 The (mostly) Ugly: Tynefield Care Ltd (and others) v the New India Assurance Company Ltd"},"content":{"rendered":"

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.<\/p>\n

Some cases are correctly decided and positive for policyholders. We celebrate those cases as The Good.<\/p>\n

In our view, some cases are bad for policyholders, wrongly decided and in need of being overturned. We highlight those decisions as The Bad.<\/p>\n

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.<\/p>\n

#24 The (mostly) Ugly: Tynefield Care Ltd (and others) v the New India Assurance Company Ltd<\/em><\/strong><\/p>\n

Background<\/u><\/strong><\/p>\n

A substantial fire broke out at a care home which was owned and operated by the insured Claimants. At the time of the fire, the Claimants had a policy of insurance with New India Assurance co Ltd (\u201cNew India\u201d), under which New India agreed to indemnify them against various losses.<\/p>\n

Following the fire, the Claimants claimed from New India the cost incurred of having to move residents out of the care home for four weeks in order to carry out remedial work, as well as the cost of the remedial work itself.<\/p>\n

New India refused to indemnify the Claimants on the basis that they misrepresented and failed to disclose that their Mr Khosla, a de facto director (a director who performs the duties and functions of a director, but without being legally appointed as such), was a de jure director (a legally appointed director) of a company that previously went into administration (\u201cthe Khosla Insolvency\u201d).<\/p>\n

The Claimants accepted that Mr Khosla was a de facto director at all relevant times, but denied making a misrepresentation or failing to disclose the Khosla Insolvency.<\/p>\n

Although the Claimants had been taken out policies with New India from 2013 onwards, this article will address the parts of the Judgment that deal with the post-Insurance Act 2015 (\u201cthe IA 2015\u201d) position.<\/p>\n

The Good \u2013 was there a misrepresentation?<\/u><\/strong><\/p>\n

The relevant question in the Proposal asked: \u201cHave you or any director or partner been declared bankrupt, been a director of a company which went into liquidation, administration or receivership. If so give details\u201d <\/em>(\u201cthe Insolvency Question\u201d).<\/p>\n

The Claimants answered the Insolvency Question in the negative. New India asserted that their answer was a misrepresentation, because any person who had the status of a director, if not the title, was nevertheless a director for the purposes of the Companies Act. It also argued that any reasonable person completing the Proposal would have realised that \u201cwhat was being asked related to the reality of the position\u201d<\/em>.<\/p>\n

The Claimants disagreed. They said that the word \u2018director\u2019<\/em> should be restricted to its plain meaning, i.e., a legally appointed director, and that to hold otherwise would create uncertainty and confusion because a policyholder needs to understand precisely what is being asked of it.<\/p>\n

The Judge, Judge Rawlings, agreed with the Claimants: the Claimants were not taken to be qualified lawyers who understood the concepts of de facto and shadow director (and he accepted their evidence that they didn\u2019t even know what those terms meant). The Judge also held that while one could determine if a person had been appointed as a de jure director with certainty, that was not the case with de facto directors, which would turn on a number of factors, including that individual\u2019s role and responsibilities and how they were perceived by others in the organisation.<\/p>\n

So far, so Good. <\/em>But that was not the end of the story.<\/p>\n

The Ugly \u2013 Was there a failure to disclose a material circumstance under s. 3 of the IA 2015<\/strong><\/span><\/p>\n

The duty of fair presentation requires an insured to disclose to an insurer every material fact which it knows or ought to know, in a manner which would be reasonably clear and accessible. A circumstance will be material if it would influence the judgment of a prudent insurer in determining whether to take the risk and, if so, on what terms.<\/p>\n

Therefore, quite apart from the Insolvency Question \u2013 which the Judge found did not embrace the Khosla Insolvency \u2013 the question was whether the Khosla Insolvency was material, and therefore disclosable, in any event.<\/p>\n

Applying the summary of the law provided by Lionel Percy QC in Berkshire Assets (West London) Ltd v AXA Insurance UK PLC <\/em>(see our article on that decision here<\/a>), and particularly the principle that facts which raise doubt as to the risk, without more, are sufficient to be material, the Judge found that the Khosla Insolvency was <\/em>a material fact. Specifically, the Judge held:<\/p>\n

\u201cWhist I cannot say whether a prudent underwriter would, if asked to provide insurance for the first time, refuse to provide that insurance, or only agree to do so on more stringent terms than would otherwise be the case, because of those concerns, it seems to me clear that a prudent underwriter would, at least be influenced or affected by those concerns and would.\u201d<\/em><\/p>\n

The Judge also considered \u2013 but had no hesitation in rejecting \u2013 the Claimants\u2019 further argument that New India waived disclosure of the Khosla Insolvency because the Insolvency Question only used the term \u201cdirector\u201d. \u00a0That argument was wrong, the Judge found, because a reasonable person would have appreciated that New India had not waived the requirement to disclose that Mr Khosla controlled the management of the Claimants, and was their director in all but name. Accordingly, the case was distinguished from cases such as Ristorante v Zurich <\/em>(see our article on that decision here<\/a>), because the insolvency question in that<\/em> case enquired only about \u201cowners, directors, business partners or family members of the business\u201d<\/em> i.e., unlike in this case, it did not extend to other business with which those individuals were involved.<\/p>\n

Having found that the Claimants failed to disclose a material circumstance, and thus breached their duty of fair presentation, the next issue to be decided was whether that failure was deliberate, reckless, or innocent. The judge held it was the latter. In particular, he accepted the Claimants\u2019 evidence that they did not, at the relevant time, understand what \u201cde facto director\u201d and \u201cshadow director\u201d meant, and therefore would not have understood the Insolvency Question to be referring to Mr Khosla. The Judge also accepted Mr Khosla\u2019s evidence that he had not read the proposal forms, and was unlikely to have read the Statement of Facts, either. While the Judge was satisfied that those failings were negligent, we can see how a different Judge could just as easily have found it to have been reckless (i.e., where a claimant \u201cdoes not care\u201d whether or not it was in breach of the duty).<\/p>\n

The final issue to be decided was the remedy to which New India was entitled. New India\u2019s evidence, which the Judge accepted, was that it had a strict policy of refusing to incept policies if it was disclosed to it that a director (which included Mr Khosla) had been a director of a company which had gone into liquidation. Accordingly, pursuant to the IA 2015, New India was entitled to refuse the Claimants\u2019 claim, but had to refund the premiums.<\/p>\n

Conclusion<\/u><\/strong><\/p>\n

We think Tynefield<\/em> is a paradigm example of an ugly decision. In particular, while we sympathise with the Claimants given the wording of the Insolvency Question, the position in this case was that Mr Khosla was essentially \u201crunning the show\u201d,<\/em> such that his insolvency history was disclosable.<\/p>\n

The decision is a salutary reminder that there is a critical difference between a misrepresentation and a non-disclosure, and that even an honest and correct answer to a question in a Proposal will not avail an insured of its duty under the IA 2015 to disclose material facts.<\/p>\n

Alex Rosenfield<\/a> is an Associate Partner at Fenchurch Law<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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