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

114 CONNECTICUT INSURANCE LAW JOURNAL [Vol. 16:1
who had led a totally blameless life. 77 This did not convince McNair J.
who held that the 1946 conviction was not a material fact, having “no
direct relation to trading as a diamond merchant.” 78 Having examined the
authorities, with particular emphasis being given to Horne v. Poland, the
judge concluded:
In my judgment, on this review of the authorities the
judgment of Lord Justice Fletcher Moulton in Joel's case
contains, if I may respectfully say so, a correct statement of
the law on the topic. It has the merit…of emphasizing that
even under the present practice of admitting expert
evidence from underwriters as to materiality, the issue as to
disclosability is one which has to be determined as it was
in Lord Mansfield's day by the view of the Jury of
reasonable men. 79
As conceded by Fletcher Moulton L.J., the duty does not require the
insured to disclose that of which he or she is ignorant, unless the insured
ought to have known of such circumstances in the ordinary course of
business. 80 But, nevertheless, from the insured’s perspective the disclosure
duty laid down by the Marine Insurance Act of 1906, as explained by the
subsequent case law, is particularly harsh and, it is suggested, represents an
overly expanded view of Lord Mansfield’s original formulation which was
premised upon the notion of “concealment.” From a contemporary
standpoint, it is hardly surprising that by the second half of the twentieth
century both the courts and the law reform bodies were questioning
whether such a strict approach was necessarily appropriate for all classes of
insurance.
77 Id. at 132.
78 Id.
79 Id. at 131.
80
See also Lambert v. Co-operative Ins. Soc’y Ltd., [1975] 2 Lloyd’s Rep.
485, 490 (A.C.). See infra notes 63-66. The private insured will not, of course, be
deemed to possess constructive knowledge. See Economides v. Commercial
Union Assurance Co. plc, [1998] Q.B. 587, 601-03 (Simon Brown, L.J.).