Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - PROFESSIONAL INDEMNITY INSURANCE LAW
PROFESSIONAL INDEMNITY INSURANCE LAW. W. I. B. Enright, B.A., LL.B., LL.M., Solicitor of the Supreme Courts of England and New South Wales. Sweet & Maxwell, London (1996) ciii and 877 pp., plus 32 pp. General Index and 3 pp. Index of Professionals. Hardback £135.
This is a long book which contains a great deal of information and analysis that readers will not find elsewhere: professional liability insurance is treated cursorily, if at all, in the standard texts on professional negligence and insurance law, and previous works specifically addressed to the subject cannot match this one for the breadth and density of its coverage. At appropriate points in the text, the author gives a careful account of the wording of provisions commonly encountered in indemnity policies, throughout the book the English case law is discussed in exhaustive detail, and references are frequently made to Commonwealth authorities as well. He tackles his material in an admirably rigorous fashion, and makes many acute and interesting observations. He is to be congratulated on producing a substantial piece of work of the highest quality, which this reviewer would certainly recommend to anyone with an interest in the area.
If a criticism can be made of the book, it is that the author might have written a better, shorter book out of the same material. He has a tendency to preface and conclude every part of his discussion with a summary of what has gone before and what is still to come, with the result that his argument can sometimes seem unnecessarily protracted. Also, more generally, the book’s focus needs sharpening up: the author spends too long over his exposition of general principles of insurance law, e.g., the duty of utmost good faith, without making this discussion sufficiently specific to professional liability policies. Of course, some reference to such matters is needed to place indemnity policies in context, and it would be wrong to imply that the author has nothing interesting to say about them. On the contrary, his comments on the general principles are often enlightening: see, e.g., the well-made arguments at para. 4.051 that the content of the duty of utmost good faith should change as insurance markets become more established and insurers have a better idea of the nature of the risks insured; and at para. 4.236 that the “reasonable insurer” test for materiality is not necessarily helpful to insurers, besides being unfair to their insureds. But the particular value of this book will be as a source of reference on matters specific to professional liability insurance, and to some extent this has been compromised by the amount of space afforded to more general matters.
Inevitably, there are assertions of principle with which some may disagree, and statements of the law which have been overtaken since the time of writing by more recent developments. For example, it seems curious that the discussion of delegation by trustees in paras 1–104 et seq. should make no mention of the Trustee Act 1925, ss 23 and 25 (and on s. 23, see (1994) 2 Decisions of the Charity Commissioners 28); the discussion in paras 6.080 et seq. of the effect of policies made in breach of the Insurance Contracts Act 1982, s. 2 has been superseded by the Court of Appeal’s decision in Group Josi Re v. Walbrook Insurance Co. Ltd
[1996] 1 Lloyd’s Rep. 345; Nicholls, V.-C.’s decision on the effect of s. 16 of the same statute in Fuji Finance Inc. v. Aetna Life Insurance Co. Ltd [1995] Ch. 122, discussed in para. 6.242, has been reversed on another point by the Court of Appeal, but in obiter remarks the majority disagreed with him ([1996] 3 W.L.R. 871; pettn all. [1997] 1 W.L.R. 482); Sir Wilfrid Greene, M.R.’s discussion of joint and composite insurances in
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