Whither the Duty of Good Faith in UK Insurance Contracts, John Lowry

110 CONNECTICUT INSURANCE LAW JOURNAL [Vol. 16:1
this, among other particulars, exceptional, in that they require on both sides
uberrima fides. Hence, without fraudulent intent, and even bona fides, the
insured may fail in the duty of disclosure.” 62
This decision is followed soon after by Ionides v. Pender, in which
Blackburn J. was moved to assimilate the prevailing view into the so-called
“prudent insurer” test. 63 While the judge accepted that “it would be too
much to put on the assured the duty of disclosing everything which might
influence the mind of an underwriter,” he nevertheless conceded that “a
concealment of a material fact, though made without any fraudulent
intention, vitiates the policy.” 64 Blackburn J. concluded by stating that “all
should be disclosed which would affect the judgment of a rational
underwriter governing himself by the principles and calculations on which
underwriters do in practice act.” 65
62 (1873) 11 M. 351, 359. It might be the case that this generation of judges
was perhaps placing too much reliance on Park’s Law of Marine Insurance
published in 1787, rather than tracing Lord Mansfield’s reasoning first hand. For
example, chapter 10 of Park’s treatise states that “the learned judges of our courts
of law, feeling that the very essence of insurance consists in a rigid attention to the
purest good faith, and the strictest integrity, have constantly held that it is vacated
and annulled by any the least shadow of fraud or undue concealment.” PARK,
supra note 18, at 174 (emphasis supplied).
63 (1874) 9 L.R.Q.B. 531. This was incorporated by Chalmers into § 18(2) of
the Marine Insurance Act, 1906, 6 Edw. 7, c.41 (Eng.), which provides, “[e]very
circumstance is material which would influence the judgment of a prudent insurer
in fixing the premium, or determining whether he will take the risk.”
64 Ionides, 9 L.R.Q.B. at 537, 539.
65 Id. at 539. A further opportunity to put forward his view on the scope of
the duty of disclosure was taken by him, now Lord Blackburn, in Brownlie v.
Campbell, (1880) 5 App. Cas. 925, in which he noted:
… [i]n policies of insurance, whether marine insurance or life
insurance, there is an understanding that the contract is uberrima
fides, that if you know any circumstance at all that may influence
the underwriter's opinion as to the risk he is incurring, and
consequently as to whether he will take it, or what premium he
will charge if he does take it, you will state what you know.
There is an obligation there to disclose what you know; and the
concealment of a material circumstance known to you, whether
you thought it material or not, avoids the policy.
Id. at 954. Material facts are typically categorised as either those relating to