Insurance Contracts CP - Law Reform Commission

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LAW REFORM COMMISSION‘S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission‘s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 160 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation. The Commission‘s law reform role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. The Commission‘s role also involves making legislation more accessible through three other related areas of activity, Statute Law Restatement, the Legislation Directory and the Classified List of Legislation in Ireland. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. The Classified List of Legislation in Ireland is a list of all Acts of the Oireachtas that remain in force, organised under 36 major subject-matter headings. ii
MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: Vacant at the time of going to print (December 2011) Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: The Hon Mr Justice Donal O‘Donnell, Judge of the Supreme Court iii
Page 1: CONSULTATION PAPER INSURANCE CONTRA
Page 5 and 6: ADMINISTRATION STAFF Head of Admini
Page 7 and 8: ACKNOWLEDGEMENTS The Commission wou
Page 9 and 10: TABLE OF CONTENTS Table of Key Legi
Page 11 and 12: CHAPTER 4 (3) Factors covered by an
Page 13 and 14: (10)Enforcement 149 CHAPTER 7 FORMA
Page 15: TABLE OF KEY LEGISLATION Assurance
Page 18 and 19: Pg No. Economides v Commercial Unio
Page 20 and 21: Ireland Ltd Pg No. Roselodge Ltd v
Page 22 and 23: D Regulation and Supervision of Ins
Page 24 and 25: has been the Consumer Protection Co
Page 26 and 27: this definition would apply both to
Page 28 and 29: Commission provisionally recommends
Page 30 and 31: 2005 Final Report and Recommendatio
Page 32 and 33: in Coleman accords with data protec
Page 34 and 35: functions may in the future be merg
Page 36 and 37: estrictions on the ability of the O
Page 38 and 39: (2) Adverse comments on the propose
Page 40 and 41: harmonisation of insurance contract
Page 42 and 43: 1.49 Before leaving the general iss
Page 44 and 45: (2) Decisions of the Financial Serv
Page 46 and 47: uberrima fidei, regulatory requirem
Page 48 and 49: 1.68 The Commission provisionally r
Page 50 and 51: 2.03 In contrast, a non-indemnity
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CJ expressed the view that it made
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2.18 In the House of Lords, Lord El
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Lord Eldon formulation, 45 overrule
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interest in respect of the property
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drawings themselves, Auld LJ and Si
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the judges to complicate the law by
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Insurance in the UK, Ireland and EU
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any existing doubt, or prevailing m
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(2) A potential financial loss reco
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to the extent of monies actually ex
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took out a life insurance policy on
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2.86 The Commission invites submiss
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and social provision be integrated
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and deny enforceability. The leadin
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(6) Defining Insurance Contracts in
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3 CHAPTER 3 DUTY OF DISCLOSURE A In
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the Ohio case of Hartford Protectio
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the basis that the insurance contra
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that which the signatory could reas
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―(i) In order to be entitled to a
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withholding information on the basi
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public interest in running blockade
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In Manor Park, McMahon J. took a si
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at the precontractual stage. The de
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decisions in which the Ombudsman ha
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(8) The English Law Commission’s
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(10) Australia 3.88 In ALRC Report
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Article 3:103 Exceptions The sancti
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it is desirable to retain the duty;
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B Judicial approaches to limiting a
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will no doubt arise in the future.
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questions that are incapable of a y
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(1) Marine Insurance Act 1906 and m
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(3) Should the right to rescind be
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y English judges to any extent, and
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non-disclosure or misrepresentation
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Factually incorrect answers to a qu
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4.68 While the English and Scottish
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terms to be construed by reference
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conclusion, ―with considerable re
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the present was held not to be prom
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(10) Limiting the scope of the warr
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have been forthright in suggesting
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nature and potentially draconian na
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(b) that even though the loss was o
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whichever is the earlier event. 103
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5.67 Nevertheless, the law reports
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may properly consider to be relevan
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―It is easy to sympathise with th
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decisions, and case-law, that preve
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the terms of the insurance contract
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householder each assuming the other
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whether in all the circumstances it
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may be regarded as technical or unm
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―Basis of contract clauses would
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The court may be influenced by the
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―consumer‘s reasonable expectat
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of the term, particularly in the co
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National Consumer Agency would be t
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premium, thus taking the contract o
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the Provider could not provide the
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exceptions to these requirements in
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(l) the existence of guarantee fund
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policy should be issued within fift
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contains interesting and helpful ad
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in the Aro Road case who wrote that
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8.11 The most visible demonstration
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common law position relating to sep
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F Effects of fraud 8.27 Once the fr
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8.36 In the case of composite insur
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(i) consented to the act or omissio
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Insurance Corporation of the Channe
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not only an economic purpose, but a
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Article 6:104 Time of Performance (
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B The Problem in Context 9.04 The d
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D Exceptions to the Privity Rule (1
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9.20 Because Ireland has not adopte
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cover but the defendants failed to
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(1) ―Where a person who is not pa
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9.46 The privity doctrine confines
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CHAPTER 10 REMEDIES A Introduction
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(4) Where the risk would have been
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isks‖ policy provided by Royal an
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elation to negligent misrepresentat
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insurer is seeking to avoid the con
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10.38 The decision of Hirst J in Th
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10.48 The Ontario Court of Appeal,
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(a) An insurer cancelled a motor in
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G Subrogation - Public Policy Excep
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(ii) Subrogation - Employee Liabili
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Employee‟s Liability (Indemnifica
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―an employer should be liable to
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Street Dublin against the embezzlem
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11.09 The Commission invites submis
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of a promissory warranty, it should
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Insurance Contracts CP - Law Reform Commission

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