News

Say hello, waive goodbye – waiver in insurance disputes

25 September 2020
By Alex Rosenfield

Waiver involves a party abandoning some or all of its rights under a contract. The concept is broad, and arguments about its application arise frequently in insurance disputes, in relation to both the creation and operation of a policy. 

This article will outline situations where waiver arguments most commonly occur.

Waiver of disclosure

Under the Insurance Act 2015 (“the Act”), an insured must make a fair presentation of the risk. This requires disclosure of every material circumstances which the insured knows or ought to know, and in a manner which would be reasonably clear and accessible.

An insurer’s failure to ask questions has always risked being treated as a waiver of the insured’s duty of disclosure. That situation is now codified in s3(4)(b) of the Act, which confirms that it is only necessary for an insured to disclose “sufficient information to put a prudent insurer on notice that it needs to make enquiries for the purpose of revealing those material circumstances.” The insurer therefore has a duty to make enquiries when it requires further information – it cannot simply sit on the disclosure provided and ask questions only once a claim is made.

Absent enquiry by the insurer, the Act provides that an insured does not need to disclose a circumstance if, amongst other things, it is something about which the insurer waives information. This can happen expressly, or impliedly.

Express waiver

Numerous forms of agreement can be reached between an insurer and an insured whereby the latter’s duty of fair presentation is restricted. This may be by way of agreement which restricts materiality to knowledge held by specific individuals. Alternatively, they may agree that specific types of information need not be disclosed.

Implied waiver – asking limited questions in a proposal

An insurer may, in some circumstances, be taken to have waived the scope of disclosure by asking a limited question in a proposal. By way of example; suppose an insurer asks a proposer, “have you been made insolvent during the last 5 years?” which the proposer correctly answers “no”. Then, following the making of a claim, the insurer refuses to pay on the basis that the insured failed to disclose that it entered into administration 8 years ago. On those facts, there is an unanswerable argument of waiver. The insurer could easily have asked the proposer about insolvencies occurring more than 5 years prior, and by not doing so indicated that it had no interest in those insolvencies. These types of argument are fact-sensitive, and will depend on the proper construction of the proposal as a whole. The question to be asked, as MacGillivray says, is:

“Would a reasonable man reading the proposal form be justified in thinking that the insurer had restricted his right to receive all material information, and consented to the omission of the particular information in issue?”

If the answer to that question is “yes”, an insurer cannot subsequently use that non-disclosure as a reason to avoid paying a claim.

Waiver of the insurer’s remedy for breach of the duty of fair presentation

This type of waiver is known as waiver by election. In short, where an insurer discovers that there has been a non-disclosure entitling it to avoid the policy, it has a choice between two inconsistent rights: it can either affirm the policy (i.e. treat it as continuing), or it can avoid it. If the insurer, having knowledge of those inconsistent rights, makes an unequivocal representation that it will affirm the policy, the right to avoid will be lost.

For example; suppose an insurer, during the course of its investigations following a claim, discovers that the insured had failed to disclose that it has an unsatisfied CCJ. If the insurer expressly affirm cover, it cannot go back on that choice.

That example can be contrasted with implied affirmation i.e. where the insurer’s conduct amounts to an unequivocal communication that it has chosen to affirm the policy. Such conduct might include the actual payment of a claim under a policy, or accepting future premiums.

Waiver of the insurer’s remedy for breach of condition

Where an insured breaches a policy condition, the only form of waiver available is waiver by estoppel (Kosmar Villa Holdings PLC v Trustees Syndicate 1243 [2008] EWCA Civ 147).

As with waiver by election, waiver by estoppel rests on an unequivocal representation that a party will not rely on its rights; however, the insured must also show detrimental reliance i.e. that it has relied on the insurer’s representation, such that the insurer’s withdrawal of that representation would be unjust.

As an example; say there is a fire at an insured’s premises, and the insurer then discovers that the insured had breached a condition precedent regarding the storage of combustible materials. Ordinarily, no liability would attach to the insurer for the claim, as the condition precedent was breached. However, in this case the insurer chooses to act in a manner only consistent with it having waived the insured’s breach, by asking the insured to provide information about the repair costs. If the insured can show that it relied on the insurer’s representation to its detriment (e.g. by starting to repair the premises), the insurer will be estopped from relying on the breach.

Estoppel by silence?

Recent case law has raised the potential for the court to find, in some circumstances, that an insurer’s silence or acquiescence may give rise to an estoppel.

The case in question, Ted Baker v AXA Insurance UK plc [2017] EWCA Civ 4097, concerned a claim by the clothing retail company, Ted Baker, following a theft. AXA refused to pay the claim because, amongst other reasons, Ted Baker had breached a condition precedent in the policy requiring it to produce certain information.

Ted Baker argued that AXA was estopped from relying on its breach, because AXA had known that Ted Baker believed, albeit mistakenly, that the obligation to produce the information had been “parked”.  Although Ted Baker’s claim failed on other grounds, the Court of Appeal agreed that Ted Baker was entitled to expect AXA, acting honestly and responsibly, to speak up if it regarded the information as outstanding, and if it realised that Ted Baker had wrongly believed otherwise.

Summary

Waiver arguments arise in a number of different guises in insurance disputes, and are likely to be hotly contested. Although the availability of any waiver argument will be fact-specific, relevant considerations include the conduct and knowledge of the insurer, and whether the insurer had reserved its rights.

If an insured is able to establish that the insurer has waived its rights, the law will hold the insurer to its choice, and any alternative choice will be lost.