Alfred McAlpine Plc v BAI (Run-Off) Ltd [2000] EWCA Civ 40 (11 February 2000)

Mr. Justice Coleman
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 11 February 2000

B e f o r e :

– and –


(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)

Mr. Richard Lynagh Q.C. and Mr. Jonathan Woods (instructed by Messrs CMS Cameron McKenna of London for the Respondent)
Mr. Ronald Walker Q.C. (instructed by Messrs Mackrell Turner Garrett of London for the Appellant)

As Approved by the Court
Crown Copyright ©

Friday, 11th February 2000


1. This is an appeal from the judgment of Colman J given on 5 May 1998. He gave judgment against the defendants (BAI). The issue before him, and the issue on the appeal, relates to a condition in a policy of insurance requiring the insured to give notice of any occurrence which may give rise to a claim “as soon as possible … in writing, with full details”. BAI submitted before the judge that the condition was a condition precedent, and that failure to comply relieved the insurer from any liability. Alternatively they submitted that the failure to comply amounted to a breach of the insured’s duty of good faith or amounted to a repudiation of the contract of insurance, and that the insurers avoided the contract or accepted such repudiation and that on that basis there was no liability under the policy.
2. The plaintiffs (McAlpine) submitted that if there was a failure to comply with the condition that simply gave rise to a right to damages, and that BAI had failed to establish any such claim.
3. Colman J preferred the arguments of McAlpine. BAI appeal against that judgment. By a Supplemental skeleton argument they did however make clear that they did not seek to disturb the judge’s finding that the condition did not constitute a condition precedent.
The History
4. On 1 May 1991 a workman called Mr O’Malley was seriously injured. He was working on the cementing of a bridge over the A23 when he fell some distance to the ground. He alleged that the guard-rail was too high, and that there was thus a gap between the rail and the shuttering which was unsafe and through which he fell. The allegation thus was that there was a breach of the Construction (Working Places) Regulations 1966. There was some suggestion that Mr O’Malley might have suffered an epileptic fit which caused him to fall.
5. Mr O’Malley was employed by one Harry Moss who was responsible for the concreting pursuant to a sub-contract with RC Construction Ltd.(“RCCL”). RCCL was a sub-contractor of McAlpine, and it was McAlpine who had erected the scaffolding, and it was thus Moss and McAlpine who were in breach of the relevant regulations.
6. Loss adjusters acting for insurers for McAlpine investigated the accident taking various statements, which appear in our bundle from 151 to 178. RCCL did not notify their insurers after the incident. It was the adjusters acting for McAlpine or their insurers, (Toplis UK) who notified RCCL of a possible claim by McAlpine by letter dated 13 January 1992 advising RCCL to notify their insurers (BAI) if they had not already done so. By this date RCCL had in fact ceased to trade. However the letter of 13 January was passed to Gibbs Hartley Cooper Ltd (Gibbs Hartley) who were the insurance brokers acting for RCCL in terminating their insurance as from the date RCCL ceased to trade, 11 November 1991 (see pages 101 and 104). According to documents in our bundle, on 12 February 1992 Gibbs Hartley forwarded full particulars of a “new” claim from RCCL, relating to the O’Malley accident, to BAI, but the judge found, and there has been no appeal from the finding, that this letter was never received by BAI.
7. RCCL ultimately went into liquidation on 11 March 1992.
8. On 13 May 1992 Toplis UK (McAlpine adjusters) sent a reminder to RCCL stating that they had still not heard from RCCL’s insurers; followed by a further reminder on 20 May 1992. That led to Toplis UK contacting Gibbs Hartley direct by letter dated 28 May 1992, and to Gibbs Hartley writing to BAI enclosing “further” correspondence by letter dated 4 June 1992. At the same time Gibbs Hartley requested from RCCL “the fully completed claim form”.
9. BAI’s response to Gibbs Hartley was to recognise that RCCL was in liquidation, but to ask Gibbs Hartley to endeavour to obtain from RCCL a full report and relevant documents (page 117); to request details of the main contractors, and details of the contract between RCCL and Moss. They also wished to know why it was only now that the accident had been reported to them. The response from Gibbs Hartley was that their letter of 4 June requesting a report had been returned and that they felt there was nothing further that they could do. By letter dated 25 June 1992, BAI accordingly informed Toplis UK that they regretted that they were unable to obtain a report, and stated “thus it would seem that there has been a breach of policy condition”. The letter continued “we can therefore only suggest you pursue this matter via their liquidators.” Solicitors for McAlpine’s insurers then pursued the matter by letter dated 30 June 1992 and received the response from BAI by letter of 20 July 1992 that due to breach of policy conditions they were unable to indemnify their insured.
10. No attempt was made at this time by anyone to contact the liquidators of RCCL.
11. On 7 January 1994 O’Malley issued proceedings against Moss and McAlpine.
12. Solicitors acting for McAlpine and their insurers pursued BAI again by letter of 23 June 1994, but received the response by letter dated 30 June 1994 “apart from advising our insured would seem to be in breach of policy conditions, we do not feel that we are required to give you more details”.
13. By letter dated 22 December 1994 again those acting on behalf of McAlpine spelt out to BAI the likely course proceedings would take and asked for details of the breach of policy conditions. By their response dated 10 January 1995 BAI made clear they were relying on the breach of the condition “requiring notification as soon as possible in writing with full details”. That condition provided as follows:-
“In the event of any occurrence which may give rise to a claim under this Policy, the insured shall, as soon as possible, give notice thereof to the Company, in writing, with full details and as far as practicable there shall not be any alteration or repair until the Company have had an opportunity of inspecting.”
14. I would pause here just to comment. First, BAI had by June 1992 received notification in writing. The judge doubted however whether it could be said they had received full details (see page 7 penultimate paragraph), and there is no appeal against that finding. What they had received was a copy of the 13 January 1992 letter. That letter certainly gave some details. One suspects that BAI’s real concern was that they had not been notified of the incident “as soon as possible”. On any view sufficient details were made available for BAI to take some action. Second, although BAI had not received “full details”, BAI made no attempt to approach the liquidators of RCCL in order to obtain those details. In my view it is not right to say that RCCL had ceased to exist as the judge held. They were in liquidation, and it would not have been impossible for the liquidators to supply fuller details or arrange for them to be supplied. Thirdly, BAI were never interested in taking any part in the proceedings by virtue of which they could if they had so desired obtained much fuller details than those with which they had been provided. They wished to stand on their rights as they saw them to rely on RCCL’s breach of the condition. Fourthly, although it is pleaded that at some stage BAI “accepted a repudiation” by RCCL, there does not seem to have been any communication by BAI to RCCL’s liquidators to the effect either that a failure to provide details within some specified point in time would be treated as a repudiation of the contract or at least as founding a right to reject the claim, nor that the non-compliance with condition 1(a) was being treated as a repudiation of the contract of insurance or as a right to reject the claim.
15. The remaining history is that McAlpine served third party proceedings on RCCL on 11 April 1995. Mr O’Malley accepted a payment into court on 21 February 1996, and judgment was obtained against RCCL on 20 May 1996 for £243,000 and costs.
16. Thereafter on 13 May 1997 McAlpine commenced these proceedings under the Third Parties (Rights against Insurers) Act 1930. BAI rightly submit that McAlpine can be in no better position as assignees than RCCL. On that basis BAI maintain that by virtue of the breach of condition 1 (a) by RCCL, BAI have no liability.
The Law
17. As the judge commented, the law as to the effect of notice clauses of this nature is remarkably unsettled. But at least on one point there was no argument before us because there was no challenge to the judge’s finding that condition 1(a) was not a condition precedent.
18. Once that point is disposed of, the question is what remains, having regard to the fact that at least by the time these proceedings had been commenced BAI did have full details of the incident from McAlpine.
19. If BAI could establish a repudiation of the contract of insurance or a failure to act in good faith, and establish that they accepted that repudiation or avoided the contract, then they would be entitled to resist liability. This is their pleaded case.
20. As to breach of good faith, I am at present not absolutely clear what is alleged. There is no allegation of dishonesty. It is not said, for example, that personnel within RCCL, knowing that the incident might lead to a claim under the policy with BAI, deliberately decided to conceal the fact that the incident had taken place in order to make it impossible for BAI to investigate the claim. I assume that all that is relied on is the non-supply of full details. In The Star Sea [1997] 1 LLR 360 this court considered certain passages from the judgment of Hirst J in The Litsion Pride [1985] 1 LLR 437 and said this:-
“As refurbished by Mr. Pollock, the underwriters’ defence resembles that of the underwriters in the Royal Boskalis Westminster N.V. v. Mountain, Dec. 18, 1995 (unreported), of which part of the transcript of the judgment was shown to us. The underwriters in that case alleged non-disclosure amounting to deliberate concealment and misrepresentation amounting to a deliberate lie, and submitted that in relation to each the presentation of the claim was deliberately and culpably misleading and palpably dishonest. Mr. Justice Rix decided on the facts that the plaintiffs were not guilty of making a fraudulent claim, but were guilty of deliberate and culpable misrepresentation and non-disclosure. He then had to decide in the light of the The Litsion Pride whether on the reasoning of Mr. Justice Hirst there is an implied term attaching to a non-fraudulent post-contractual breach of the duty of utmost good faith that would similarly go to the forfeiture of the whole policy or only to the particular claim in connection with which the breach arose. After reviewing that case and referring to the judgment of Mr. Justice Tuckey in the present case, Mr. Justice Rix, as we see it, drew a distinction between a breach of the duty of good faith, in the form of non-disclosure or misrepresentation, which might lead to avoidance of the settlement induced thereby (see p. 256), and the making of a fraudulent claim with its Draconian remedy of avoidance. As regards the latter he noted that the only remedy for breach is forfeiture or avoidance, asked himself where the principle stops if it goes beyond fraud, and took the view that the possible distinction contemplated by Mr. Justice Tuckey between disclosure in connection with a claim and disclosure in connection with a defence to a claim might be hard to draw in practice. Mr. Justice Rix summarized his view at p. 246 of the transcript by saying –
. . . These considerations lead me to doubt that the duty of good faith with its Draconian statutory remedy of avoidance is intended in the claims context to extend outside the context of fraudulent claims.”
. . . .
We agree with that analysis, and we come unhesitatingly to the conclusion in the present case that no enlargement of the duty not to make fraudulent claims, so as to encompass claims made “culpably”, is warranted. Such statements as were made in The Litsion Pride (sup.) to the contrary, were wrong. In our judgment there is no warrant for any widening of the duty so as to embrace “culpable” non-disclosure. Either it does not enlarge the scope of fraud, in which case it is not needed, or it does, in which case the extent of the enlargement is unclear and the concept should be rejected.”
21. In my view mere negligence in supplying details of a claim cannot constitute a breach of the obligation of good faith. Dishonesty would have to be established. Even if as per Hirst J something between negligence and dishonesty were a possibility that something must involve “culpability” beyond negligence, and BAI has never alleged even culpable conduct.
22. As regards repudiation of the contract as a whole, as the judge pointed out it is not easy to contemplate that a failure to comply with an ancillary provision relating to one claim under a policy could amount to a repudiatory breach of the whole contract of insurance. He said:-
“The notification clause in the policy is one of a number of provisions which, as I have held, are ancillary to the entitlement of the assured to claim to be indemnified under the policy. In other words, they are not in themselves ordinary promissory terms which can be characterised as conditions in the contract properly so called or innominate terms. Mere non-compliance could not amount to a repudiatory breach of the whole policy. It would by its nature, as I have explained, affect only the particular claim arising from the occurrence which had not been timeously or insufficiently full detail notified to the insurers and not subsequent claims under the policy: see Hood’s Trustees v Southern Union Insurance Co. Of Australasia [1928] Ch. 793 per Tomlin J. at page 806-807 Reid & Co. v Employers’ Accidents Insurance Co. (1899) 1 F 1031.”
23. What however is argued is that “prejudice” suffered by the insurer can turn a breach into a repudiatory breach. Mr Walker QC took us to five cases in support of this proposition as he had done before the judge. Three of those cases were concerned with policies containing conditions precedent, and with the question whether an insurer must demonstrate that he has suffered prejudice before he can rely on a condition precedent. See Barrett Bros (Taxis) Ltd v Davies [1966] 1 WLR 1334; Farrell v Federated Employers Insurance Association Ltd [1970] 1 WLR 1400; and Pioneer Concrete v National Employers Mutual Insurance GAI Ltd [1985] 1 LRR 274. In agreement with the judge, I do not see how those cases assist in supporting an argument that “prejudice” will, without more, entitle an insurer to treat a contract as repudiated. In my view The Vainqueur Jose [1979] 1 LLR 557 a decision of Mocatta J relating to the exercise of discretion by a P&I Club takes the matter little further. In Taylor v Builders Accident Insurance Ltd. [1997] MCLC 247, a decision of Judge Byrt QC, there does appear to be support for Mr Walker’s proposition, although Judge Byrt found in the particular case prejudice had not been suffered so as to entitle the insurers not to pay the claim. In that case Judge Byrt, in reliance on Farrell (supra) and Pioneer (supra), said at 253:-
“Neither of these cases are direct authority for the proposition I have had to determine. Both these cases are dealing with clauses and conditions in insurance policy which were expressly stated to be conditions precedent. But there are comments in those judgments which, though obiter dicta, lend some credence to submissions Mr Lewers has made. They are suggestive that if there is a breach of a condition which has caused the insurers to suffer prejudice in respect of their rights to investigate a claim, and defend their position, then they can repudiate. – – (I pause to reiterate that I do not believe the cases can be relied on as so suggesting.) – (He continues) I surmise the position to be, and I find, that in this case clause 1(a) was obviously an important term of the contract and that it would be clear to any assured person why it was. I think the law is that if the assured so conducts themselves as to deprive or prejudice the insurers of their rights to investigate and defend their position, that would be a breach which would enable the insurance company to repudiate notwithstanding the condition breached is not stated to be a condition precedent. It would be a fundamental breach of an important term in the contract. At that stage one goes back to considering the facts of this case in order to ask whether the defendants have been prejudiced?”
24. It will be noted that Judge Byrt is contemplating a breach causing prejudice as being a breach of a fundamental term of a contract which seems to contemplate a repudiation of the whole contract and an acceptance of that repudiation. What is not clearly addressed by Judge Byrt is the possibility that a breach causing prejudice might in some circumstances entitle an insurer simply to reject a claim without allowing the insured an opportunity to remedy the situation as far as he was able, and without there being a repudiation of the total contract. I am not sure the matter was fully explored before Colman J but two passages from his judgment might be taken as not accepting such a concept. After the passage of his judgment quoted at paragraph 22 above he said:-
“Given that the provision has this ancillary or administrative function, it could be expected that if non-compliance were to operate as a complete defence to the claim in question, as distinct from entitling the insurer to terminate the policy as a whole, that would be expressly stated [as] rather than be left to be inferred.”
25. Later he said:-
“As I have held, in a case where the occurrence notification clause is not expressly or by implication a condition precedent, an assured who advances a claim for indemnity without first complying with the requirements of the clause commits a breach of the contract of insurance. The insurers can then prove that the breach has caused them quantifiable loss and will be entitled to damages to that extent which they can set off against their liability under the policy. They will however, only have a complete defence to the assured’s claim if they can prove that had the assured complied with the requirements of the clause they would have been able to take steps to avoid having to make any payment by way of indemnity under the policy. There may be extreme cases where on the facts insurers could make good a complete set-off, particularly where the claim is brought by a statutory assignee under the 1930 Act, but short of being able to establish a cross-claim for damages amounting to a complete set-off, I cannot accept that proof of some prejudice to the insurers would normally operate as a complete defence. Furthermore, in general one is not here in the environment of fundamental breach, as Judge Byrt appears to have supposed, or of fundamental terms. The only possible exception to this, as I see it, is a case where the conduct of the assured in advancing a claim without first complying with the notification clause could be said to amount to a breach of the duty of the utmost good faith, going beyond mere compensation in damages and amounting to a repudiatory breach of the contract of insurance.”
26. I do not myself think that the choice should necessarily lie between a construction which would involve condition 1(a) being a condition precedent, and condition 1(a) simply giving rise to a claim for damages. It seems to me that once a condition such as condition 1(a) is construed as something less than a condition precedent, it will still be important to ascertain precisely what its contractual effect is intended to be and what the effect of a breach of that term will be. For example, if no details of the incident in relation to which RCCL was making its claim were ever supplied, despite the insurers’ requests for them, would BAI still be bound to pay, and simply be left with a remedy in damages for breach of the condition? Certainly if the consequences for BAI were that they had been seriously prejudiced, it seems to me unreasonable that that should be so. Accordingly it seems to me one should consider the possibility that a breach of condition 1(a) might in some circumstances be so serious as to give a right to reject the claim albeit it was not repudiatory in the sense of enabling BAI to accept a repudiation of the whole contract. The very fact that condition 1(a) is aimed at imposing obligations in relation to individual claims which BAI might be obliged to pay, ought logically to allow for the possibility of a “repudiatory” breach leading simply to a rejection of a claim.
27. I accept, I should say, that it is possible for the terms of a policy by express language to be clearer than this term as to what its intended effect should be. The authorities supplied to us by Mr Walker following argument demonstrate that point. Hiddle v National Fire and Marine Ins. Co. of New Zealand [1896] AC 372 and Banting v Niagara District Mutual Fire Ins. Co. (1866) 25 UCQB 431 are examples of terms being conditions precedent. Weir v Northern Counties of England Ins. Co. (1879) 4 LR Ir 689 is an example of a term not being a condition precedent, but on its language being a term which, until it is complied with, entitles the insured not to meet the claim. Condition 1(a) does not expressly provide for either of the above consequences and one must consider where in the spectrum it falls.
28. In considering this question, and on referring to a textbook on reinsurance law not cited to us at the original hearing, Butler & Merkin Reinsurance Law paragraph C4.3-07, I noted a case referred to in the footnotes which appeared to have addressed this problem. That case Trans-Pacific Insurance Co (Australia) Ltd v Grand Union Insurance Co Ltd (1989) 18 NSW LR 675 as well as (1990) 6 ANZ Insurance Cases 60-949, a decision of Giles J, seemed to me to assist. We thought it right in the circumstances to draw the authority and the passage in Butler & Merkin to the attention of counsel on both sides and invited further submissions in writing. Those submissions have been received and I will deal with them in my discussion of the Trans-Pacific Insurance case. That case was concerned with a marine reinsurance second surplus treaty. On the placing slip had been added the words “(d) claims co-operation clause”. No such clause however had ultimately been spelt out in the reinsurance treaty. That treaty enabled certain risks to be ceded to the treaty. The parties had at all times conducted themselves upon the basis that the treaty gave rise to binding obligations between them and in relation to one particular claim the reinsured had refused to provide further information pending acknowledgement of liability by the reinsurer and consequent thereon the reinsurer had purported to avoid the whole treaty. However at the hearing the reinsurer abandoned the argument as to avoidance of the whole treaty and simply argued an entitlement to avoid liability in relation to the particular claim. Giles J held that there was no standard co-operation clause and that thus the slip should be read as stating and doing no more than stating that the reinsured should co-operate with the reinsurer in relation to claims. He further held that as a matter of construction the manuscript addition “claims co-operation clause” did not import a condition precedent to the reinsurers’ liability. Furthermore, although he did not expressly deal with the point, he did not construe the term as one entitling the reinsurer not to pay until there had been full compliance with the condition. That however as we shall see, was the effect of his judgment. It is fair to say that he also held that where there is a notification and a cession of a risk to a reinsurance treaty then upon “that act a separate contract of reinsurance in relation to the particular risk is concluded.” This point is understandably stressed by Mr Lynagh in his submissions on this authority. Giles J was thus able to approach the matter on the basis that the risk in relation to which the reinsurer was repudiating liability was a risk under a separate contract. He then considered the nature of the term in the reinsurance treaty and in his language concluded that it did not have the “essentiality” such that any breach would entitle the reinsurers to terminate their contractual obligation in relation to the claim being made. He then however continued at 702F as follows:-
“I note that, in Phoenix General Insurance Co of Greece, SA v Halvanon Insurance Co Ltd [1988] QB 216 at 241; [1985] 2 Lloyd’s Rep 599 at 614; (1985) 4 ANZ Insurance Cases ¶ 60-724 at 74,319, Hobhouse J commented that certain implied terms relating to keeping full and proper records, investigating claims, and making records available on request to a reinsurer were “innominate” (which in current terminology distinguishes them from essential terms, see Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26) such that:
“. . . the consequences of any breach for any particular cession or any individual claim or, indeed, for the contracts as a whole, must depend on the nature and gravity of the relevant breach or breaches.”
Apart from illustrating obligations of a similar nature to the claims co-operation obligation being viewed otherwise than as essential, it may be observed that his Lordship envisaged that breach may have consequences for a particular cession or an individual claim.”
29. Thereafter he concluded:-
“I do not think that by the breach of the claims co-operation obligation Trans-Pacific evinced an intention no longer to be bound by the reinsurance contract relating to the “New Dolphin” or showed that it intended to fulfil the contract only in a manner substantially inconsistent with its obligations.”
30. Thus on the facts of the particular case he held that the reinsurer was not entitled to reject the particular claim.
31. It seems to me that condition 1(a) does not have what Giles J described as a quality of “essentiality” for the reasons he gave in relation to the co-operation clause in that case. He said that it must have been obvious that there could be major or minor failures to co-operate, disagreement on what did or did not amount to co-operation, or breaches which could be readily rectified without any prejudice to the reinsurer. The same goes for the supply of details. Indeed this case exemplifies how a breach may be major or minor in that certainly some details were supplied to BAI and details which would have been sufficient to enable BAI to make such enquiries as it needed.
32. I see no reason however why condition 1(a) should not be construed as an “innominate” term as per Hongkong Fir Shipping Co Ltd (supra) where the consequences of a breach may be so serious as to entitle BAI to reject the claim albeit the breach is not so serious as to amount to a repudiation of the whole contract. Mr Lynagh submits there is no support in the judgment of Giles J for the proposition that the consequences may be so serious as to give a right to reject the claim. I accept that Giles J took the view that there was a separate contract of reinsurance in relation to the risk the subject matter of that case, and thus did not decide the point. But I do think the inference to be drawn from the passage quoted at 702F – 703A of the judgment of Giles J supports the view that I take. I accept Mr Walker’s submission in this regard. It seems to me that the payment of individual claims are severable obligations and that where an insured is bound to carry out one obligation in order to receive the benefit of the insurer’s obligation by implication the insured is accepting that if he fails in a serious way to carry out his part of that bargain he will not receive what he has bargained for.
33. Thus the correct analysis of condition 1(a) I would suggest should be as follows. Compliance with condition 1(a) is not by the policy made a condition precedent to liability, thus it is not enough for BAI to establish a failure to supply full details as soon as possible in order to resist the claim. That much is conceded.
34. Condition 1(a) is however an innominate term. Breach of it, however serious, would be unlikely to amount to a repudiation of the whole contract of insurance. Furthermore, it is not a term the breach of which, or any breach of which, would entitle the insured not to pay the claim because that would simply make it a condition precedent. But, in my view, a breach which demonstrated an intention not to continue to make a claim, or which has very serious consequences for BAI, should be such as to entitle BAI to defeat the claim. If a term is a condition precedent to liability, any breach defeats liability but does not lead to a repudiation of the whole contract. I see no reason why although a term is not a condition precedent so that any breach defeats liability, it cannot be construed as a term where a serious breach defeats liability.
35. It has not in fact been pleaded in this case that there was a breach with serious consequences entitling BAI to reject the claim as opposed to accept repudiation of the whole contract. However during argument some attention was focused on this aspect and it may be said that it formed part of the argument based on Taylor. On a proper understanding of Taylor it was however bound to fail unless BAI could demonstrate that there was a serious breach of condition 1(a) which had serious consequences and that in reliance on such a breach the claim had been rejected. In my view the breach of condition 1(a) in this case was very limited in that BAI had sufficient details to enable them to investigate the claim. Furthermore, by the time BAI had at least some details of the claim they had not suffered any irremediable prejudice. It was BAI’s choice not to pursue the liquidator for details in June 1992, and again in June 1994. I am also doubtful whether BAI’s conduct in 1992 or 1994 could be said to amount to a final rejection of the claim, but if it did, it was not justified.
36. Full details were ultimately supplied on any view by McAlpine and in so far as it was open to Mr Walker to argue that BAI were entitled to defeat the claim because full details had never been supplied by RCCL, (and I have some doubt whether on the pleadings it was so open), I would reject that argument. Thus, although going part of the way with Mr Walker’s submission on the Trans-Pacific Insurance case, I cannot accept his ultimate conclusion.
37. Thus BAI cannot establish
1. any failure on the part of RCCL to act in good faith, entitling BAI to avoid the contract of insurance;
2. any repudiation of the whole contract, or acceptance of that repudiation by BAI (i.e. their pleaded case);
3. any serious breach of condition 1(a) nor any serious consequences for BAI entitling BAI to reject the claim.
38. Thus BAI’s remedy for any breach of condition 1(a) lay in damages and that claim has been abandoned.
I would accordingly dismiss this appeal.

Order: Appeal dismissed; Appellant to pay Respondent’s costs; leave to appeal to the House of Lords refused. Order does not form part of approved judgment.