UK: Duty of Disclosure: Fair Presentation of the Risk


    In Alan Bate v Aviva Insurance UK Ltd [2013] EWHC 1687 (Comm), the Commercial Court held that there had been material misrepresentation and non-disclosure as the insurer was not given a fair presentation of the risk.


    In Bate, Mr Bate held a domestic buildings and contents insurance policy with Aviva, which provided cover for a dwelling named Long House on his estate. A fire occurred at Long House and Mr Bate made a claim on the policy. However, Aviva attempted to avoid the policy for non-disclosure and misrepresentation of material facts in relation to Long House and Coach House (a separate dwelling on the estate). Mr Bate denied the allegation and claimed for an indemnity from Aviva.


    In the Commercial Court, Judge Mackie QC noted that Mr Bate had:

    • not disclosed that a business was operating from the garage of Coach House, or that development works were ongoing at Coach House;
    • not disclosed that clerical work was being carried out at the garage of Long House; and
    • misrepresented a previous fire claim by stating that the fire had occurred at a “previous” address, when the fire had occurred at Long House.

    The judge also noted that Mr Bate owned an insurance assessing business, and therefore, understood the requirement to disclose all material facts to Aviva. The judge further highlighted that Mr Bate had been a dishonest witness.

    Bearing all of the above in mind, the judge held that Mr Bate’s claim for indemnity failed for the following reasons:

    • Mr Bate may have plausibly argued that the above non-disclosures and misrepresentations were not material, if the matters were considered in isolation.
    • However, given the proximity of all dwellings on the estate, the activities within them and the nature of the cover provided, it was material that a business was being operated from the garage of Coach House.
    • Furthermore, when considering all the matters as a whole, Mr Bate should have known that disclosure of most of the above matters was required to give Aviva “a fair presentation of the risk”.

    The case highlights the fact that the Court will consider all factors when considering whether there has been any material misrepresentation or non-disclosure.

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