{"id":1981,"date":"2025-07-03T17:13:55","date_gmt":"2025-07-03T16:13:55","guid":{"rendered":"https:\/\/fenchurchlaw.com\/en-uk\/?p=1981"},"modified":"2025-07-03T17:13:55","modified_gmt":"2025-07-03T16:13:55","slug":"timing-is-everything-makin-v-qbe-and-the-cost-of-not-complying-with-a-condition-precedent","status":"publish","type":"post","link":"https:\/\/fenchurchlaw.com\/en-uk\/timing-is-everything-makin-v-qbe-and-the-cost-of-not-complying-with-a-condition-precedent\/","title":{"rendered":"Timing is everything \u2013 Makin v QBE and the cost of not complying with a condition precedent"},"content":{"rendered":"

This recent decision from the High Court provides a powerful reminder of the consequences of not complying with a condition precedent to liability, and that a claimant pursuing a claim under the Third Parties (Rights Against Insurers) Act 2010 inherits both the rights \u2013 and the pitfalls \u2013 of the insured\u2019s policy. <\/strong><\/p>\n

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

The Claimant, Daniel Makin, attended a Bar and Restaurant on 6 August 2017. At around 08:30pm he threw a glass on the floor while apparently in \u201chigh spirits\u201d, and was then forcibly ejected by two door supervisors (\u201cthe Incident\u201d).<\/p>\n

Although Mr Makin was seemingly unaffected by the Incident (he walked away and took a taxi home), he later suffered a stroke rendering him unable to work and requiring long-term care.<\/p>\n

The Proceedings<\/u><\/strong><\/p>\n

Acting by his mother and litigation friend, Mr Makin issued proceedings against (1) the Restaurant Muse Limited (\u201cthe Restaurant\u201d); (2) Protec Security Group Limited (\u201cProtec\u201d), the employer of the two doormen; and (3) QBE Insurance (Europe) Limited (\u201cQBE\u201d), who insured Protec under a \u201cSecurity and Fire Protection\u201d<\/em> insurance policy (\u201cthe Policy\u201d). QBE was joined to the proceedings under the Third Parties (Rights Against Insurers) Act 2010 (\u201cthe 2010 Act\u201d).<\/p>\n

At a preliminary issues hearing (which Protec did not attend, having entered into administration on the preceding day), the Judge, HHJ Sephton KC, gave judgment that Protec were liable to Mr Makin for assault and his consequent injury (\u201cthe Judgment\u201d).<\/p>\n

At trial, the parties agreed that pursuant to the 2010 Act: (1) Mr Makin was entitled to claim against QBE directly; and (2) Mr Makin\u2019s rights were no better than those of Protec ie., if QBE had a good defence to a claim for indemnity by Protec, it would also have a good defence to Mr Makin\u2019s claim.<\/p>\n

QBE asserted that it had no liability to Mr Makin because Protec breached the claims condition in the Policy \u2013 a condition precedent \u2013 which required it to notify, \u201c\u2026 as soon as practical but in any event within thirty (30) days in the case of other damage, bodily injury, incident accident or occurrence, that may give rise to a claim under your policy \u2026\u201d <\/em>(\u201cthe Condition\u201d).<\/p>\n

Mr Makin disagreed. He contended that even if there was a breach of the Condition, it was not a condition precedent which entitled QBE to automatically refuse cover. Rather, it only gave QBE only the discretion to decline the claim, which it could not exercise \u201carbitrarily, irrationally or capriciously\u201d.<\/p>\n

Finally, an issue arose as to whether the Judgment was binding in these proceedings.<\/p>\n

The issues to be decided, therefore, were:<\/p>\n

    \n
  1. Did Protec breach the Condition? (\u201cIssue 1\u201d)<\/li>\n
  2. If so, was QBE entitled to refuse cover for a breach of a condition precedent, or did it merely have a discretion to decline the claim? (\u201cIssue 2\u201d)<\/li>\n
  3. If QBE was not automatically entitled to refuse cover, was it nevertheless entitled to do so on the facts? (\u201cIssue 3\u201d)<\/li>\n
  4. Was the Judgment binding on QBE? (\u201cIssue 4\u201d).<\/li>\n<\/ol>\n

    Issue 1 <\/u><\/strong><\/p>\n

    Following the incident in 2017, neither the correspondence passing between the Restaurant and Protec, the Police\u2019s investigations, nor the Letter of Claim sent in 2020 were disclosed to QBE contemporaneously. In fact, there was no suggestion that QBE were aware of the Incident at all before July 2020. Against that background, QBE said that Protec breached the Condition.<\/p>\n

    Mr Makin argued that a reasonable person would not have thought that the Incident, on its own, might give rise to a claim. He also argued that any suggestion that Protec may have come under an obligation at a later point to notify the Incident was contrary to the proper meaning and effect of the Condition. He relied in that regard on Zurich v Maccaferri<\/u> <\/em>[2016], in which the Court held that the likelihood of a claim eventuating is assessed at the time the event occurs.<\/p>\n

    QBE, by contrast, held that it would have been apparent to a reasonable person in Mr Lucas\u2019 position that a claim might be made against Protec arising out of the Incident. It also distinguished the present case from Zurich v Maccaferri<\/u>, <\/em>because the requirement in that case was to notify a circumstance that was \u201clikely\u201d to give rise to a claim, whereas the Condition required Protec to notify a circumstance \u201cmight\u201d give rise to a claim, which was a much lower threshold.<\/p>\n

    Although the Court accepted that the Incident, in isolation, would not have led a reasonable insured to form the view that there might be claim, there was nevertheless \u201ca clear point in time\u201d when the matters known to Mr Lucas, which included the police investigation, and that Protec were potentially open to criticism for injuring a customer, gave rise to an obligation to notify. Having not done so, Protec was in breach of the Condition.<\/p>\n

    Issue 2<\/u><\/strong><\/p>\n

    On Mr Makin\u2019s case, the Condition was not a condition precedent. That is because, he said, it was not expressed in that way (by contrast, there were other terms in the Policy that were<\/em> so expressed), and if there was any doubt as to the correct interpretation, the Condition should be construed contra proferentem<\/em> in his favour.<\/p>\n

    QBE disagreed. It said the Condition did not need to be labelled as a condition precedent in order to have that effect. It also referred to the introductory section of the Condition, which stated: \u201cThe following conditions 1-10 must be complied with after an incident that may give rise to a claim under your policy. Breach of these conditions will entitle us to refuse to deal with the relevant claim\u201d. <\/em>\u00a0So, QBE said, the Condition made clear at the outset that its obligation to meet a claim was conditional upon Protec\u2019s compliance. Further, and importantly, QBE contended that the use of the word \u201cwill\u201d <\/em>was consistent with an absolute right, not a contractual discretion.<\/p>\n

    As with Issue 1, the Court agreed with QBE. The true meaning of the Condition was clear, even without the label of \u201ccondition precedent\u201d. The Court also agreed with QBE\u2019s analysis that the word \u201cwill\u201d, in the introductory section of the Condition, did not merely import a discretion to decline indemnity. To hold otherwise, in the Court\u2019s view, would do an injustice to the language used. There was also good commercial sense in that conclusion: an early notification enables an insurer to investigate claims at a time when witnesses will be easier to contact and memories are likely to be better, as well as to consider the early settlement of the claim, minimising any delays.<\/p>\n

    So, on the basis that the Condition was indeed a condition precedent to QBE\u2019s liability, and in circumstances where that condition was breached, QBE was entitled to refuse indemnity under the Policy.<\/p>\n

    Issue 3<\/u><\/strong><\/p>\n

    Given the Court\u2019s earlier findings, this point was academic: QBE had already prevailed in light of the Protec\u2019s breach of a condition precedent to liability. However, had the Court found that the Condition did not<\/em> have that status, then, applying the well-established Braganza <\/em>principles \u2013 namely, that a decision must be lawful, rational and made in good faith \u2013 it would have found that QBE was not entitled to refuse cover. The breaches in this case were trivial and of no meaningful consequence for QBE\u2019s ability to deal with the claim.<\/p>\n

    Issue 4<\/u><\/strong><\/p>\n

    The final issue was whether the Judgment establishing Protec\u2019s liability was binding on QBE in circumstances where it was given (a) at a hearing which Protec did not attend; and (b) before QBE were a party to the proceedings.<\/p>\n

    Mr Makin contended that the Judgment was binding on QBE as establishing Protec\u2019s liability. He relied in particular on Scotland Gas Networks plc v QBE UK Ltd<\/u>, <\/em>in which the Court of Session held that where a policyholder\u2019s liability was established by way of a judgment of the court in previous proceedings, \u201cit is not open to the [insurer] to require either the existence or the amount of that liability to be proved in the present action\u201d<\/em>.<\/p>\n

    QBE argued the contrary. It referred to AstraZeneca Insurance Co Ltd v XL Insurance (Bermuda) Ltd<\/u><\/em> and Omega Proteins Ltd v Aspen Insurance UK Ltd<\/u><\/em>, both of which established that neither a judgment nor an agreement are determinative of whether a loss is covered by a policy \u2013 it is open to an insurer to dispute that the insured was in fact liable.<\/p>\n

    The Court agreed with Mr Makin. The present case was distinct from Omega Proteins<\/em> and AstraZeneca v XL Insurance, <\/em>because those cases did not involve the 2010 Act, which was focussed on placing a claimant in the same position as the insolvent insured. It would therefore be incongruous with that objective if an insured\u2019s liability could be determined definitively, only for the insurer to later challenge it.<\/p>\n

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

    There are a number of salutary lessons from Makin<\/em>:<\/p>\n

    Firstly, the decision provides a convenient reminder of the distinction between \u201clikely to\u201d and \u201cmay \/ might\u201d wordings in the context of notification conditions. Whereas the former requires an insured to notify circumstances which are at least 50% likely to lead to a claim, the latter requires only a real, as opposed to fanciful, risk of a claim eventuating. Policyholders would be well advised to check which wording appears in their policies, and to ensure that the requirements are met.<\/p>\n

    Secondly, the decision reinforces that a condition precedent need not be labelled as such in order to have that effect. Where the consequences of breaching a condition are clearly spelt out, namely, that an insurer will not be liable for a claim, the courts will likely treat the condition as a condition precedent to liability. It should never be assumed, therefore, that a condition precedent does not have that status simply because the words \u201ccondition precedent\u201d are not included.<\/p>\n

    Thirdly, and finally, although the Court\u2019s application of the 2010 Act did not assist Mr Makin on the facts, it is likely to be helpful for policyholders generally: where an insured\u2019s lability is definitively determined in earlier proceedings, then, applying Makin, <\/em>it will not be open to an Insurer to unravel that Judgment later down the line.<\/p>\n

    Author:<\/strong><\/p>\n

    Alex Rosenfield, Partner<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

    This recent decision from the High Court provides a powerful reminder of the consequences of not complying with a condition […]<\/p>\n","protected":false},"author":65,"featured_media":1983,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[3],"tags":[296,346],"class_list":["post-1981","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-property-risks","tag-construction-property-risks"],"acf":[],"yoast_head":"\nTiming is everything \u2013 Makin v QBE and the cost of not complying with a condition precedent - Fenchurch Law UK<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/fenchurchlaw.com\/en-uk\/timing-is-everything-makin-v-qbe-and-the-cost-of-not-complying-with-a-condition-precedent\/\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Timing is everything \u2013 Makin v QBE and the cost of not complying with a condition precedent - 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