GOOD FAITH IN INSURANCE LAW: A REDUNDANT CONCEPT




GOOD FAITH IN INSURANCE LAW: A REDUNDANT CONCEPT

Rupert Cohen

Introduction

Insurance is one of a small number of areas to which the duty of utmost good faith, or uberrimae fidei applies.[i]The presence of the doctrine can be regarded as something of an aberration. Indeed, Lord Falconer, the then Lord Chancellor, in a lecture given to the Commercial Bar Association stated that the English law was respected worldwide because ‘it is clear and built upon well-founded principles, such as the ability to require exact performances and the absence of any general duty of good faith’.[ii] The principle is stated in section 17 of the Marine Insurance Act 1906 and affects the pre-contractual negotiations between the assured and the insurer and lasts for the duration of the policy.[iii] However it is within the pre-contractual period that the doctrine has its greatest effect in what it is commonly called the duty of disclosure[iv] and it is this which will form the body of this dissertation. At the present, the doctrine of good faith, as embodied by the duty of disclosure requires the ‘assured to disclose all matters which would be regarded as material to a prudent insurer, whether or not a prudent assured would regard them as material to be disclosed’.[v] When coupled with the draconian remedy of avoidance, the doctrine of good faith seems to impose an unfair burden on the assured.

The initial section of this article will explore the evolution of the doctrine and particularly the seminal role played by Lord Mansfield in its inception. A following paragraph will focus on the imbalances caused by the primacy of good faith in insurance law before continuing with an examination of the current checks and balances in place to prevent any abuse of position by the insurers. The body of this essay will then focus on a detailed discussion as to whether there should remain any residual role for good faith in light of the draft Bill produced by the Law Commission and the Scottish law Commission in December 2009.[vi] A final paragraph will draw the discussion to a close by suggesting that although its removal in the context of consumer contracts will lead to a fairer, clearer and more structurally effective approach to formulating insurance policies, its retention in respect of business contracts represents a missed opportunity to rid insurance law and English law more generally of a troublesome anachronism which fails to fulfil the requirements of modern day insurance law.

Evolution of the duty of utmost good faith

The doctrine of utmost good faith first appeared in the seminal judgement of Lord Mansfield, sitting as Chief Justice of the Court of King’s Bench, in Carter v Boehm[vii] in 1766. The judgement itself contains no specific citation of earlier authority, merely stating that the duty is derived from the ‘law of merchants’.[viii] Thus, is seems that ‘the precise origin of the doctrine of utmost good faith will probably never be known. It may have been created by the law merchant. The possibility that it was originally a branch of the equitable jurisdiction to relieve against imposition cannot be entirely discounted’.[ix] In Carter v Boehm the brother of the Governor of Fort Marlborough in Sumatra took out a policy against the taking of the fort by a foreign enemy. The fort was duly taken and the insurer tried to avoid liability on the grounds of material non-disclosure. The outcome of the case is of little historical interest; instead it is the obiter dicta of Lord Mansfield which we must focus on. He stated that: ‘good faith forbids either party by concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing the contrary’.[x] Originally intended to apply to all contracts, the application of this statement was rejected by the common law and only survives in respect of insurance law.[xi] In light of subsequent case law and the discussion below, one of the most notable features of Lord Mansfield’s dicta was that he intended for only the pre-contractual period to be governed by the duty. This was confirmed by Lord Blackburn in Brownlie v Campbell over a hundred years later.[xii]
Soon after Lord Blackburn’s statements, the common law of marine insurance was codified in the Marine Insurance Act 1906. Despite its title, the contents of the act have been held to apply to all insurance contracts. Section 17 of the Marine Insurance Act provides as follows:

A contract of marine insurance is a contract based upon the utmost good faith and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party.[xiii]

Section 18 requires the assured to voluntarily disclose to the insurer every material circumstance of which he is aware. The concept of materiality serves to parameterise the scope of the assured’s duty. He need only disclose on those things which would ‘influence the judgement of a prudent insurer in fixing the premium’.[xiv] This duty only extends to those facts which the assured knows. However if the assured turns a blind eye or fails to gain confirmation he was be held to have known about the circumstance.[xv] For Rose (2007) ‘the drafting of the Act contains the seeds of confusion’.[xvi] As merely a statement of the rules laid down by the courts prior to its enactment, the Act adds a layer of rigidity to judicial comments unused to definite application. It also fails to pass any comment as to whether the duty of utmost good faith should extend to post-contractual obligations. A series of judgements over the past 25 years have elucidated the nature of the post-contractual obligation of good faith.[xvii] The current position stems from The Aegeon where it was held that the post-contractual operation of the duty of good faith does not require a duty of disclosure but a duty not to make misrepresentations.[xviii] In other words, where a policy requires the assured to make post-contractual notifications, the duty is not one of disclosure (ie the same as pre-contractual disclosure) but a lesser duty not to misrepresent. For Rose (2009) this lesser duty is merely an extension of or ‘more universally applicable law’ and not a derivative of the duty of utmost good faith at all.[xix] This will be seen to be of particular importance in the wider discussion concerning the value of retaining the duty of utmost good faith.

Operation of the duty of good faith

Before the issues of good faith and the remedy of avoidance are discussed, a semantic distinction must be drawn between the duty of utmost good faith and the duty to disclose. It is something of a truism to note that a mechanism must exist to account and rectify the differing degrees of knowledge regarding the object to be insured between the assured and the insurer. At present the means by which such imbalances are addressed comes through the duty to disclose (s18 of the MIA 1906). That duty in turn derives its legitimacy from the duty of utmost good faith as enshrined in s17 of the Marine Insurance Act 1906.[xx] The critique which is presented here focuses on the deficiencies which stem from the interaction between the duty to disclose and the remedy of avoidance as encompassed by the duty of good faith. Whilst even the most stringent advocates of reform[xxi] recognise that an obligation to make disclosure pre-contract must exist, it is the reference to ‘good faith’ which, they contend, is of little use and merely aggravates the imbalance offered by the encompassing remedy of avoidance. In other words, reform must put the obligation to make pre-contractual disclosures on a statutory basis[xxii] and in doing so I argue that the broader duty of good faith will be rendered null.

It is trite to say that the anomalous presence of good faith is the subject of rigorous debate within legal academia. Indeed, for Rose ‘the statutory codification of certain perceptions of the insurance law rules and the tension which that has caused provide a salutary warning for any contemplated future reform of this or any other area of common law’.[xxiii]

As a initial starting point it is worth emphasising that the obligation imposed by the duty of good faith is ‘the assured is obliged to disclose all material matters, which are those which would influence the judgement of a prudent insurer in fixing the premium or determining whether he will take the risk’.[xxiv] The unfairness which may stem from the operation of the obligation is best illustrated by the case of Drake Insurance Plc v Provident Insurance Plc.[xxv] In the case the insurers attempted to avoid a claimant’s motorcycle claim on the grounds of material non-disclosure. The information which the claimant failed to disclose concerned a speeding conviction. The insurers operated a points system whereby events such as speeding tickets and crashes carry certain points, the total of which dictates the level of an applicant’s premium. The disclosure of the speeding conviction would have led to an increase in the claimant’s points of total of 10. However, the claimant had also failed to inform the insurer that a pervious accident he had been involved in had been re-designated a ‘no-fault’ accident. This would have led to a points reduction of 15. Therefore, had he fulfilled his duty of good faith and told the insurer everything that a prudent insurer would have regarded as material, his points total would have decreased by 5. The majority of the Court of Appeal (whilst accepting his application on different grounds) expressed sympathy but ultimately rejected his claim that the insurer had breached its duty of good faith by not checking whether the earlier accident had been reclassified (effectively reversing the burden of the duty of disclosure). This case illustrates the imbalance which exists in the formation of insurance contracts between the insurer and the assured.[xxvi] Lord Mansfield’s original inception of good faith says that it applies to both parties; however, because the assured is almost always in a position of greater knowledge concerning the issue or object requiring insurance, it is to them that the duty applies. The insurer benefits from the overall duty without facing reciprocal obligations. As Legh-Jones et al. state: ‘as the law presently stands avoidance is not conditional upon the insurer acting in good faith and the insurer is not obliged to enquire whether undisclosed pre-placement allegations have been shown to be unfounded before electing to avoid the contract’.[xxvii]

The effects of the obligations set out above are aggravated by the sole and draconian remedy of avoidance enshrined in s17 of the MAI 1906. This means that even where an assured innocently believes that a fact is not relevant to a policy (no matter how peripheral it may be – the insurer only need establish that its absence is ‘material’) the insurer will be able to avoid the claim in its entirety. For Butcher this state of affairs is ‘draconian’[xxviii] and for Eggers et al., one of ‘overkill’.[xxix]

Current mechanisms accounting for its deficiencies

This ‘overkill’ has long been recognised by both the courts and the industry itself and various mechanisms have evolved to minimise the burden that the duty of utmost good places on the assured.

There have been many calls for reform of the duty of disclosure. The Law Reform Committee in 1957; the English Law Commission in 1980; and the National Consumer Council in 1997 all attempted to initiate sweeping reforms across the area.[xxx] However, despite the manifold calls there has been no legislative change. Instead, reform up till now has focused on ‘market-based’ solutions. This approach was advocated by the Association of British Insurers who felt that legislative change was both unnecessary and overly heavy handed. The state of affairs as they currently lie consists of layers of industry bodies with overlapping and, on occasion, conflicting powers of remedy. Market-based solutions have been used reactively and correspond to waves of public, industry and judicial outcry. Over time this incremental approach to reform has seen the proliferation of overlapping routes of redress. The following all offer a degree of supervision over the industry. Firstly, Statements of Practice were issued in 1977 in which insurers agreed not to rely on their strict legal rights in some circumstances. Secondly, the Financial Services Authority (FSA) has also incorporated a series of practice requirements into its guidelines. These practice requirements have no legal weight, in other words the courts would still be bound to apply the MIA 1906, however, they do allow for a firm to be fined if they transgress the practice requirements. An example is that an insurer cannot refuse to meet a claim on the ground of misrepresentation unless it was fraudulent or negligent.[xxxi] Thirdly, a further layer exists in the form of the Financial Ombudsman Service (FOS). The FOS has a statutory power to determine whether cases have been decided in a manner which is ‘fair and reasonable in all the circumstances’.[xxxii] The FOS goes further than the FSA guidelines in terms of flexibility and the level of standards required. For example, where the insurer failed to ask about an issue or circumstance, the FOS does not require the application to volunteer such information. Furthermore where an applicant answers a question carelessly, the FOS does not allow the strict (legal) remedy of avoidance to be utilised, instead promoting compensation on a tapered scale based on what the insurer would have done had they known the whole truth.[xxxiii] Finally, the Association of British Insurers issued a Code on non-disclosure regarding long-term protection insurance which required insurers to consider what they would have done had they known the full facts, as opposed to instantly avoiding the policy, where the applicant has made a careless error.[xxxiv]

The current restrictions on the unfettered application of the duty of good faith illustrate the degree to which it is an unsuitable tool upon which pre-contractual disclosure should rest. The arguments in favour of wholesale legislative overhaul will be enunciated below. After which the discussion will move on to what form that legislation will take and whether such legislation should retain the duty of good faith.

Argument for legislative reform

Perhaps the most potent reason in favour of reform is the confusion which inevitably follows from incremental reform and having a number of bodies setting guidelines and offering remedies. Nor are those guidelines completely clear in themselves. The Law Commission’s discussion paper highlights the difficulties which have spawned from the FSA guidelines. They state that ‘insurers should either ask clear questions or explain the duty to disclose material circumstances. The result is that insurers issue hundreds of warnings along the lines that ‘failure to disclose any material information may invalidate your insurance cover’’.[xxxv] A further problem is that only a minority of customs who experience unfairness actually complain to the FOS.

The Law Commission’s discussion paper identifies five problems with the current reliance on codes and guidance:
(i) Consumer cannot obtain redress from the courts. The conventional judicial role is filled by the FOS. However, although the FOS can help in many cases it also shackled by a number of arbitrary restraints. For example, it cannot adjudicate disputes over £100,000 and can only recommend that the insurer pays as opposed to compelling it to do so.
(ii) The rules applying to non-disclosure and misrepresentation are unacceptably confusing. Many potential claimants know little of the procedural requirements for redress. This is compounded by a failure to understand guidelines by the insurance companies themselves.
(iii) Confusion over the law places an unfair burden on certain groups. Older customers and those with criminal convictions are but two which are indirectly disadvantaged by the current system.
(iv) The roles ascribed to the FOS, the FSA and the courts are ‘inappropriate’.[xxxvi] The FOS acts as a policy-maker not an adjudicator and the courts are hemmed into following the MAI 1906 which leads to unfairness.
(v) There are increasing differences between the UK system and those in operation across the EU.
These reasons are compelling and largely without dispute, either from the world of academia or within the industry itself.

Law Commission proposals

The Law Commission published its draft bill for the reform of pre-contractual disclosure on the 15th December 2009. The Bill only applies to consumer insurance contracts and concerns only what a consumer must tell an insurer before a contract is formed. The central tenet is the abolishment of the previous duty to disclose based on what the prudent insurer would regard to be material in favour of an obligation on the assured ‘to take reasonable care not to make a misrepresentation’.[xxxvii] Where an insurer has been mislead by a misrepresentation, the remedy open to them will depend on the nature of the misrepresentation and the state of the consumer’s mind. The draft Bill identifies three degrees of culpability:

(i) An ‘honest and reasonable’ misrepresentation: the insurer must pay the claim. The applicant is expected to exercise the standard of care of a reasonable consumer with particular attention paid to the type of policy and the clarity of the question.
(ii) A ‘careless’ misrepresentation: the insurer may take advantage of a compensatory remedy based on what the insurer would have done had the consumer taken care to answer the question accurately and completely.
(iii) A ‘deliberate or reckless’ misrepresentation: the insurer may take advantage of the remedy of avoidance. The insurer would also be entitled to retain the premium, unless there was a good reason why the premium should be returned.

The draft Bill goes on to define a ‘deliberate or reckless’ misrepresentation as one where, on the balance of probabilities, the consumer: (i) knew that the statement was untrue or misleading, or did not care whether it was or not; and (ii) knew that the matter was relevant to the insurer, or did not care whether it was or not.

In light of these proposals the debate must move on to question whether there remains any residual role for the duty of good faith and whether the Law Commission reforms do in fact go far enough.

Any residual role for the duty of good faith (in the context of any kind of reform)?

If the Law Commission proposals were to be incorporated into law, the primary function of the duty of good faith (as the legal basis from which the duty to disclose is derived) would no longer exist. For Butcher, ‘potential arguments in favour of the retention of the doctrine (of good faith) ... are unpersuasive’.[xxxviii] He goes on to highlight the three primary reasons for retention. The first concerns the operation of the doctrine in the post-contractual period. The scope of the operation of the doctrine was established in The Aegeon where it was held that the duty operated at a lower level in the post-contractual period. The duty was not one of material disclosure but a duty not to make representations.[xxxix] In the context of this lesser duty, the relevance of the duty in this regard would seem to be diminished. This is compounded by the availability of the usage of contractual provisions to account for continuing duties.

The second argument identified by Butcher suggests that the duty should be retained ‘to cater for the unexpected’.[xl] This seems to be a rather thread-bare justification. In respect of the pre-contractual period the limitations of the duty are well documented and the Law Commission proposals fully take account of them. Similarly in situations which might be regarded as unusual, insurers can take steps to protect themselves through asking specific questions.

The final argument for retaining the duty of good faith is that it allows for inappropriate behaviour on the part of the insurer to be accounted for. On a brief inspection, the duty of good faith seems attractively even handed, however, the duty fails to account for the fact that in very few circumstances will the assured wish to avoid the policy. In circumstances where the insurer has acted in bad faith, the assured will want damages not avoidance. However in Bank of Nova Scotia v Hellenic Mutual War risk Association (Burmuda) Ltd (The God Luck)[xli] and Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd,[xlii] the Court of Appeal held that English Law does not provide a remedy in damages. For Butcher, ‘the superficial even-handedness of the doctrine is an illusion’.[xliii]

Legh-Jones et al. provide a reasoned discussion concerning the positive and negative aspects of the duty of good faith. Whilst finding manifold faults they conclude that it is not completely otiose. They state that the generally accepted justification for ‘the doctrine is that the assured expects the insurer to run the risk of becoming liable to pay substantial sums in the event of loss in return for a premium which is small in comparison’.[xliv] However, they go on to note that today the position of the assured has moved away from that occupied when Lord Mansfield set out the duty in Carter v Boehm.[xlv] Instead of absolutely relying on the assured’s comments (as was necessary in the eighteenth century), the insurer will provide a document with a list of questions which expert staff and experience have taught him are of particular relevance. They conclude by saying that ‘scientific data and actuarial statistics are available to assist insurers with evaluating risk’.[xlvi] In other words, the circumstances which existed at its inception bear little resemblance to those today.

However, they go on to highlight that ‘it is wrong to assume that the insurer’s knowledge is always either adequate or easily obtainable’.[xlvii] This is because interim cover is often obtainable from minimal amounts of data and there are always extrinsic factors which a proposal form will be unable to account for. Further to this, in certain industries, such as marine and reinsurance, business is conducted without the use of proposal forms. The natural equilibrium which exists in the premium markets may also be affected should the duty to disclose be removed. Premiums are kept competitive by the imposition of the duty, ‘allowing the insurer to process acceptance of risks more cheaply and expeditiously than if he had to find out everything about the risk’.[xlviii]

Are the Law Commission proposals the correct vehicle?

The discussion in MacGillivray on Insurance Law[xlix] indicates that the duty to disclose retains a valuable purpose in relation to business transactions. This is something which the Law Commission proposals clearly appreciate in limiting the parameters of the proposed changes of the duty of disclosure to purely consumer transactions.
I believe the proposals have two main faults. The first is that the Commission have drawn a dividing line between consumer and business transactions; and the second, is that in doing so a valuable opportunity to dissolve the duty of good faith in its entirety has been missed. Whilst the reasons for retaining the duty in the context of business transactions are certainly more encompassing than those in relation to consumer transactions, the overriding benefit in removing the duty of good faith in its entirety (and thereby placing the duty to disclose on a statutory footing) outweighs any benefit of leaving its sole functioning limb intact. Furthermore, its operation in the context of business transactions is only partial.

There is no reason to think that replicating a threefold distinction like those in the Law Commission proposals in relation to consumer transactions would allow business insurance transactions to function any less well than they currently do. In fact, when you consider how formal the majority of business insurance contracts are (only a minority require the short-term fluidity inherent in marine insurance) and the availability of expert advice and risk assessments, it seems most likely that the industry would benefit from the clarity and certainty that a statutory basis would provide.

The case for retaining such an outdated mode of operations should not be premised on the fact that one of its outputs still functions to a passable level. Whilst the proposals for reform of the duty of disclosure are entirely commendable in relation to consumer law, its current form pays no attention to the duty of good faith. Reforming the duty of disclosure and placing it on a statutory basis simply renders good faith toothless in respect of consumer transactions but operative in respect of business one. I can see little justification for drawing such a distinction and, the very act of doing so, sees a golden opportunity for its anomalous status in English law to be rectified.

Conclusion

I have argued that for the sake and clarity, equality and effective functioning the duty of good faith should be removed from all transactions in insurance law. The most succinct way of illustrating the background to this is to make a series of statements regarding the current state affairs and wider academic opinion.
Firstly, there seems little doubt that there is a compelling argument for reform of the duty to disclose. Secondly, the arguments for retaining the overall duty of good faith in such a reform seem considerably weaker than those against. Thirdly, only in business transactions in which standard forms are not the means by which the policy is drawn up does the duty retain an operative function.

The Law Commission proposals recognise the imbalance between the assured and the insurer (in consumer transactions) and attempts to rectify it by introducing three tiers of remedy contingent on the nature of the misrepresentation. However they make no explicit reference to the duty of good faith. This, I believe, is a mistake. For if the Law Commission proposals do become law an unnatural division will be drawn between business and consumer policies. Furthermore, the status, responsibilities and operation of brokers will change depending on the nature of their clients (as opposed to the nature of the contract which is more au fait with general English law). The duty will be nothing more than a husk in relation to consumers but fully operational for businesses. Such a division will only further obfuscate the parameters of the duty of good faith. In the interests of clarity, and bearing in mind that statutory reform will in no way harm the operation of insurance contracts in relation to business (even if in its current form there are no major problems), and equality, I believe the duty of good faith should be struck out of insurance law in its entirety.

[i] Legh-Jones, Birds and Owen (eds), MacGillivray on Insurance Law, 10th edn (2003).
[ii] Annual COMBAR Lecture, October 15, 2005.
[iii] M A Clarke, The Law of Insurance Contracts, 4th edn (2004).
[iv] Legh-Jones, Birds and Owen (eds), MacGillivray on Insurance Law, 10th edn (2003).
[v] Butcher, ‘Good faith in insurance law: a redundant concept?’ [2008] Journal of Business Law.
[vi] The Law Commission and the Scottish Law Commission joint report and draft Bill, ‘Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation’ (15th December 2009).
[vii] [1766] 3 Burr. 1905.
[viii] Pawson v Watson [1778] 2 Cowp. 785.
[ix] Bennett, “Mapping the doctrine of utmost good faith in insurance contract law” [1999] L.M.C.L.Q. 165 p177.
[x] Carter v Boehm [1766] 3 Burr 1905.
[xi] Rose, “Informational Asymmetry and the Myth of Good Faith: Back to Basis” [2007] L.M.C.L.Q. 181 p184.
[xii] Brownlie v Campbell [1880] 5 App Cas 925, 954.
[xiii] Bennett, “Mapping the doctrine of utmost good faith in insurance contract law” [1999] L.M.C.L.Q. 165.
[xiv] S18(2) Marine Insurance Act 1906.
[xv] Simner v New India Assurance Ltd [1995] L.R.L.R. 240.
[xvi] Rose, “Informational Asymmetry and the Myth of Good Faith: Back to Basis” [2007] L.M.C.L.Q. 181 p204.
[xvii] See Hirst J in Black Sea Shipping Corp v Massie (The Liston Pride) [1985] 1 Lloyd’s Rep 437; Manifest Shipping CO Ltd v Uni-Polaris Ins Co Ltd (The Star Sea) [2001] UKHL 1; KS Merc-Scandia XXXXII v Certain Lloyd’s Underwriters (The Mercandian Continent) [2001] EXCA Civ 1275.
[xviii] Agapitos v Agnew (The Aegeon) [2002] EWCA Civ 247.
[xix] Rose, “Informational Asymmetry and the Myth of Good Faith: Back to Basis” [2007] L.M.C.L.Q. 181 p223.
[xx] M A Clarke, The Law of Insurance Contracts, 4th edn (2004).
[xxi] See Butcher (2008).
[xxii] See Law Commission and Scottish law Commission proposals below.
[xxiii] Rose [2007] p224.
[xxiv] Butcher [2008] p1.
[xxv] [2003] EWCA Civ 1834.
[xxvi] Butcher [2008].
[xxvii]Legh-Jones, Birds and Owen (eds), MacGillivray on Insurance Law, 10th edn (2003) p484.
[xxviii] Butcher [2008] p3.
[xxix] MacDonald Eggers, S. Picken and P. Foss, Good Faith and Insurance Contracts, 2nd edn (2004) p36.
[xxx] The Law Commission and the Scottish Law Commission joint report and draft Bill, ‘Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation’ (15th December 2009).
[xxxi] Investment Conduct of Business Sourcebook, Rule 7.3.6(2)(b).
[xxxii] Financial Services and Markets Act 2000, s 228(2).
[xxxiii] The Law Commission and the Scottish Law Commission joint report and draft Bill, ‘Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation’ (15th December 2009).
[xxxiv] See ABI Code of Practice, ‘Managing Claims for Individual and Group Life, Critical Illness and Income Protection Insurance Products’ (January 2009).
[xxxv] Law Commission joint report (2009), p4.
[xxxvi] Law Commission joint report (2009), p6.
[xxxvii] Ibid. p6.
[xxxviii] Butcher [2008] p4.
[xxxix] Agapitos v Agnew (The Aegeon) [2002] EWCA Civ 247.
[xl] Butcher [2008] p4.
[xli] Bank of Nova Scotia v Hellenic Mutual War Risk Association (Bermuda) Ltd (The Good Luck) [1990] 1 Q.B. 818; [1989] 2 Lloyd's Rep. 238.
[xlii] Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd [1990] 1 Q.B. 665.
[xliii] Butcher [2008] p3.
[xliv] Legh-Jones, Birds and Owen (eds), MacGillivray on Insurance Law, 10th edn (2003) p488.
[xlv] Carter v Boehm [1766] 3 Burr 1905.
[xlvi] Legh-Jones, Birds and Owen (eds), MacGillivray on Insurance Law, 10th edn (2003) p488.
[xlvii] ibid.
[xlviii] ibid. p489.
[xlix] Legh-Jones, Birds and Owen (eds), MacGillivray on Insurance Law, 10th edn (2003).

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