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Lloyd's Maritime and Commercial Law Quarterly

Remedies for the failure to observe the utmost good faith

Peter MacDonald Eggers *

The remedies for failure to observe the duty of utmost good faith in respect of insurance contracts are inflexible and one-sided. In this paper, it is proposed that: (1) avoidance be the applicable remedy for pre-contractual and post-contractual breaches of the duty of utmost good faith, subject to the exercise of a judicial discretion; (2) there be no independent remedy of forfeiture in the event of the presentation of a fraudulent claim; and (3) damages be available as a remedy for any breach of the duty of utmost good faith.
Three recent decisions of the appellate courts in England and Wales have led to a legal soul-searching for the appropriate remedy for a breach of the duty of utmost good faith in respect of insurance contracts.1 The particular focus has been on the duty, insofar as it exists, after the contract of insurance is made. This quest for a soul has re-raised the apparently perennial concern that the remedy of avoidance, often regarded against a background of a minor breach of the duty, might be seen as too harsh and unmerciful. This concern has led to perceptive analyses of the duty and remedies for its breach, but without the desirable outcome of a clear ratio which declares for all the common law of England and Wales. A regrettable state of affairs, considering the obvious shortcomings of the available remedies. Simply stated, the remedies fail to accord with intuitive notions of justice in that they are one-sided in favouring the party who wishes to escape the bargain (often the insurer) and can operate disproportionately so as harshly to punish those who are guilty of no more than an oversight.
The purpose of this paper is to identify the juridical basis of the duty and thence the remedies appropriate to redress justly a failure to observe the duty of utmost good faith. The conclusions will seek to satisfy the countervailing policy concerns underlying the

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