Warranty or Not?

Bluebon Ltd (in liquidation) v Ageas (UK) Limited, Aviva Insurance Ltd and another [2017] EWHC 3301 (Comm)

The assured, owners of the Star Garter Hotel at West Lothian, having purchased the property in December 2007, obtained an insurance policy from insurers, Ageas and Aviva, which incepted on 3 December 2009 for a period of 12 months. The insured property suffered loss by fire on 15 October 2010 and a claim was made. The insurers denied liability on the premise that the Electrical Installation Inspection Warranty was breached. The relevant term in the policy was worded as follows:

“It is warranted that the electrical installation be inspected and tested every five years by a contractor approved by the National Inspection Council for Electrical Installation (NICEIC) and that any defects be remedied forthwith in accordance with the Regulations of the Institute of Electrical Engineers.”

On the premise that the last electrical inspection at the Hotel had taken place in September 2003, the insurers argued that the policy was either void or suspended from the outset. In the case, the trial judge, Bryan, J, was required to determine:

  1. The proper construction of the Warranty – was the five-year period to be calculated from the date of the last electrical inspection, or from Policy inception?
  2. Was the Warranty a True Warranty, a Suspensive Warranty, or a Risk Specific Condition Precedent, and what was the consequence of a breach?

The proper construction of the warranty

The assured argued that the five year period should be calculated from the date the policy has been incepted. Taking into account the commercial purpose of the warranty, i.e. ensuring that the risk of fire is minimised (whilst also protecting the health and safety of the insured and the occupiers of the hotel), the judge rejected this contention. This objective can only be achieved if the electrical installation is inspected at regular intervals, e.g. every five years, and any defects identified are remedied. The judge also suggested that the contention of the assured, i.e. the installation inspected every 5 years from the inception of the policy, would make no commercial sense and not work in the context of a one year policy, like this one.

This outcome makes sense and the judgment is in line with recent authorities on the matter such as AC Ward & Son Ltd v. Catlin (Five) Ltd [2009] EWHC 3122 (Comm) and GE Frankona Reinsurance Ltd v. CMM Trust No 1400 (The Newfoundland Explorer) [2006] EWHC 429 (Admlty), analysed by the author in his contribution to the 4th Volume of The Modern Law of Marine Insurance (2016, Informa Law) “New Parameters in Construing Insurance Contracts”

Legal classification of the clause            

The insurers argued that the clause in question was a true warranty and accordingly in this case breach had the effect of rendering the policy void from inception as the warranty related to a period before the attachment of the risk. Alternatively, they argued that the clause was a “suspensive provision” and as the inspection had not been carried out in 2008, the cover was suspended from the outset, i.e. the insurer never came on the risk. Conversely, the assured argued that the clause was a “Risk-Specific Condition Precedent”- i.e. a term which required compliance in respect of risks relating to the electrical installation. Therefore, in case of breach the assured could not recover for liabilities that emerge from risks associated with the electrical installation but cover should be available for liabilities that emerge from other risks.

The assured’s contention was a novel one and essentially based on the premise that a clause could make compliance with a specific aspect of the risk condition precedent to liability. That is certainly possible but clear and apposite language is required to achieve such an outcome. That does not seem to be the case here and the trial judge finding in favour of the insurers expressed the view that the clause was a “suspensory provision”. In reaching this conclusion, he worked on the assumption that the clause was designed to ensure that the assured undertakes such an inspection immediately if there had been no such inspection in the last five years. In other words, he assumed that the intention of the clause was to encourage the assured to get the inspection done as soon as possible by suspending the cover until it is completed. The author is not certain that this was the original intention of the insurers. The insurers in all probability desired to assess the risk accurately at the outset by ensuring that they were insuring a property that had gone through electrical surveys at regular intervals. To the author, it was clear that the clause went to the root of the contract and bore materially on the risk of fire and damages would not have been an adequate remedy (these are all the attributes of a true warranty as highlighted by Rix, LJ in HIH Casualty & General Insurance v New Hampshire Insurance Co [2001] EWCA Civ 735, at [101]). In fact the judge himself appreciated that the term carried all these attributes! It is, therefore, arguable that this was a true warranty.

In the end, the judge’s classification of the clause as a “suspensory provision” had no impact on the outcome. In the present case, the cover was suspended from the outset as the electrical survey had not been concluded 5 years after the previous one by the time the policy had been incepted.

The outcome is in line with the recent trend in the judiciary, i.e. to avoid classifying terms as warranties due to the harshness of the remedy they attract in case of their breach. (see, for example, Sugar Hut Group v. Great Lakes Reinsurance (UK) Plc [2010] EWHC 2636 (Comm)) Of course, had the case been considered under the Insurance Act 2015 a different outcome could have been possible. Under s. 11 of the 2015 Act, the assured could possibly argue that this was a term designed to reduce the risk of a particular type (i.e. fire that is caused by electrical default) and the assured should be able to recover for the loss if he can show that its breach did not increase the risk of the loss which occurred in the circumstances in which it occurred.

It is worth noting that s. 11 is not available in cases where the term in question is designed to define the risk in a general way. The author does not think that the clause in question is of that nature but nevertheless one should be alert to the fact that this kind of disputes could arise under the new Act as s. 11 introduces a type of causation test from the backdoor (even though the Law Commissions were desperate to avoid such an outcome!). (for a more analytical evaluation on s. 11 and the effect of changes on law see- B. Soyer, “Risk Control Clauses in Insurance Law: Law Reform and the Future” (2016) Cambridge Law Journal 109)

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