Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - THE LAW OF INSURANCE CONTRACTS
THE LAW OF INSURANCE CONTRACTS by Malcolm A. Clarke, M.A., LL.B., Ph.D., Fellow of St. John’s College, Lecturer in Law, University of Cambridge. Lloyd’s of London Press, London (1989, ciii and 645 pp., plus 15 pp. Index). Hardback £95.
This is a book of true scholarship for which Dr Clarke deserves the highest praise. It will stand on the bookshelves of lawyers and insurers as a first point of reference.
The author provides a comprehensive guide to the law applying to insurance contracts. It should be noted that it is very much the law applicable to the contract of insurance that is the subject-matter, not insurance law as such. One consequence of this is that the book is not concerned with issues such as the statutory regulation of insurance (whether in general under the Insurance Companies Act 1982 or specifically relating to the selling of most forms of life insurance under the Financial Services Act 1986), the statutory schemes for compulsory insurance of motor risks and employer’s liability risks, or with the “backup” of the Motor Insurers’ Bureau scheme, except insofar as any of these aspects of insurance law impinges on contractual rights. Nor is the book concerned with the peculiar principles of marine insurance. Another consequence is that, while recognizing that the insurance contract attracts its own special attributes, Dr Clarke approaches the subject very much as a part of contract law in general (see pp. 8–9). This is to be applauded and is reflected in some recent cases (see, e.g., the Court of Appeal in The Good Luck [1990] 1 Q.B. 818 on the effect of a breach of warranty), although there is no doubt that there are decisions where the courts appear to have overlooked basic contract principles (see, e.g., West v. National Motor & Accident Insurance Union Ltd. [1955] 1 Lloyd’s Rep. 207). One particular example of the latter phenomenon, which Dr Clarke examines meticulously and criticizes trenchantly, is the notorious decision in CTI v. Oceanus
[1984] 1 Lloyd’s Rep. 476 (see pp. 452–456, especially para. 23–7C).
At first sight the order of treatment of the subject appears odd in parts. Logically, Dr Clarke commences with questions of definition (and immediately thereafter gets conflict of laws issues out of the way) and then proceeds to examine insurable interest and related matters. Agency in insurance is next, which is fine, before we reach the chapter (Chap. 10) concerned with the proposal of insurance. So far, so good. I then expected, however, to find pre-contractual matters dealt with, i.e., non-disclosure and misrepresentation. These, though, do not appear until Chapters 22 and 23, after detailed consideration of the detail of the premium, the contents of policies, the construction of policies, the cover provided by and the exceptions to insurance contracts and warranties. At first I found this odd. On reflection, however, I could see the justification for this treatment, namely that Dr Clarke chose to deal with vitiating factors together, after examination of contractual contents (although, unless I missed it, I could find no explanation of this in the book). Perhaps, also, it does not matter anyway in a reference work of this size, since nobody, except for assiduous reviewers, will be expected to read it through from cover to cover. The book is to be dipped into for clarification, elucidation, insight and explanation (and, as often as not, appropriate criticism).
Dr Clarke, quite properly on the whole, is generous in his citation of foreign authorities, from the United States, Canada and Australia in particular. Indeed, his Preface is largely devoted to a justification for this. It is an undisputed fact that these other common law jurisdictions have been much more creative than we in Britain have been in the development of the subject. This is particularly true of the American courts, the decisions of which are most often cited by Dr Clarke. To illustrate by way of a small point made early on in the book (p. 36), the Americans have attempted to rationalize much more fully the requirement of
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