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Article
Publication date: 15 November 2011

Gerald Swaby

The purpose of this paper is to provide a critical examination of the current law and the possible changes that are under consideration by the Law Commissions, after…

1375

Abstract

Purpose

The purpose of this paper is to provide a critical examination of the current law and the possible changes that are under consideration by the Law Commissions, after public consultation in relation to the continuing duty of good faith and post‐contractual duties owed by the insured towards the insurer.

Design/methodology/approach

The research is addressed using case law, statutes, current academic and Law Commissions publications in the UK.

Findings

First, the paper finds that the current state of the law allows for the insurer to claim damages from an insured when a fraudulent claim is made to recover the cost of any investigations. Second the insurer can refuse to meet a claim that is tainted by fraud. Third the insurer can have the right to avoid the policy obligations upon the discovery of a fraud, but subject to some limitations. Fourth there is a need for the insured to be protected against an insurer's unjustified allegations of fraud.

Research limitations/implications

This work does not address detailed issues in relation to pre‐contractual issues of good faith. These have been discussed in a previous edition of this journal see Swaby. G. (2010) “Insurance law: fit for purpose in the twenty‐first century?” IJLMA, 52 (1), pp. 21‐39. ISSN 1754‐243X.

Practical implications

The Law Commission will be undertaking further consultations before reforming this area of law.

Originality/value

This paper will be of interest to legal practitioners and academics and those in the insurance industry.

Details

International Journal of Law and Management, vol. 53 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 2 February 2010

Gerald Swaby

The purpose of this paper is to provide a critical examination of the current law and the proposed changes made by the Law Commission, after consultation, in relation to…

1584

Abstract

Purpose

The purpose of this paper is to provide a critical examination of the current law and the proposed changes made by the Law Commission, after consultation, in relation to non‐fraudulent pre‐contractual duties in insurance law.

Design/methodology/approach

The research is addressed using case law, statutes, current academic and law commission publications in the UK and Australia.

Findings

First, the paper finds that the current state of the law is unfair in relation to consumers and small businesses and much reform is needed to rebalance the nature of insurance contracts to reflect modern day practice.

Research limitations/implications

This work does not address detailed issues in relation to fraudulent misrepresentations.

Practical implications

The law will be brought into line with current practice by the Financial Ombudsman Service.

Originality/value

This paper will be of interest to legal practitioners and academics and those in the insurance industry.

Details

International Journal of Law and Management, vol. 52 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

Content available
Article
Publication date: 15 November 2011

Chris Gale

317

Abstract

Details

International Journal of Law and Management, vol. 53 no. 6
Type: Research Article
ISSN: 1754-243X

Content available
Article
Publication date: 3 February 2012

S. Paulo

327

Abstract

Details

International Journal of Law and Management, vol. 54 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

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