Duty of fair presentation: waiver

Young v Royal and Sun Alliance plc [2019] CSOH 32 is the first decided case on the duty of fair presentation under the Insurance Act 2015. It raised an issue of waiver familiar to the old law, and indeed it was common ground that the law in this respect had not changed. The question was whether insurers had, by asking questions that were strictly limited in their ambit, waived disclosure of facts that would have been material but outside the scope of the questions.

In the event Lady Wolffe, in the Court of Session Outer House, found that there was no waiver in that the insurers had not actually asked any questions. The issue of materiality was left over for full trial.