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Lloyd's Maritime and Commercial Law Quarterly

THIRD PARTY RIGHTS AGAINST INSURERS

Keith Michel *

Simon Congdon

In 1930 Parliament passed the Third Parties (Rights Against Insurers) Act 1930 (“the 1930 Act”). The immediate cause of the Act was the desire to remedy the injustice of two Court of Appeal decisions which had held that, where a person (“the third party”) was injured by another (“the insured”) who was insured under a liability policy, and the insured subsequently became insolvent, the third party could not reap the full benefit of the insured’s policy but the proceeds had to be paid to the liquidator or trustee in bankruptcy, with the result that the insured could at best recover a dividend and might recover nothing at all. The Act itself is somewhat wider in scope, and may apply in particular to cases where a company is wound up otherwise than by reason of insolvency. The draftsman of the 1930 Act adopted the deceptively simple formula of transferring the insured’s rights against the insurer in such circumstances to the third party. All defences available to the insurer against the insured remain, subject to certain qualifications, available against the third party.
A recent article1 drew attention to the development of the use of the 1930 Act to bring claims against the insurers of commercial liabilities and, in particular, against shipowners’ mutual liability insurers (i.e., P. & I. Clubs) in the light of the large number of shipping insolvencies which occurred during the recent severe recession in the industry. The application of the Act to these policies has been a subject of considerable debate among legal practitioners for a number of years. Two cases2 have recently come before the courts, The Fanti, a decision of Staughton, J.,3 (as he then was) and The Padre Island, a decision of Saville, J.4 (which upheld an arbitration award of Mr Nicholas Philips, Q.C., as he then was). In those cases two major defences of the P. & I. Clubs against their members were the subject of discussion: the “condition of prior payment” defence arose in both cases, and the defence of “retrospective cesser of cover” arose in the latter.
The combined appeal in both cases has now been heard before the Court of Appeal.5 Bingham, Stuart-Smith and O’Connor, L.JJ., had the unenviable task of deciding the points in dispute. After a wide-ranging examination of the issues involved, the court struck down both defences. Bingham, L.J., dissented with

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