A November 2025 High Court judgment on an insurance fire claim offers practical guidance on the burden resting on insurers who raise misrepresentation and reasonable precautions defences, and how time bar clauses operate when pleadings evolve.
On misrepresentation, the insurer contended that, during a pre-inception survey, the claimant’s representative stated it had valid electrical certificates of compliance for all distribution boards in the affected building, when this was not true.
The court held that the insurer bears the onus to prove that the misrepresentation was made, apart from materiality and inducement. Neither the surveyor nor the claimant’s witness directly recalled what they discussed regarding electrical compliance certificates during the survey. The court acknowledged that contemporaneous documents (such as the survey) can be persuasive, but only if it is reliable. Here, the survey recorded that there were no flammable liquids on site, despite an obvious, marked flammables store. That error undermined the survey’s reliability as a record of what was said. The court thought that the surveyor probably “ticked the box” confirming that electrical compliance certificates were in place, consistent with a favourable overall risk impression rather than recording a specific representation.
Considering that disputes often arise about misrepresentations and non-disclosures during surveys, digitally recorded surveys would be valuable during litigation and probably avoid it in many instances. Faded memories and contemporaneous records containing errors can scupper such defences.
On reasonable precautions, the insurer relied on a clause requiring the claimant to take reasonable steps to comply with statutory and regulatory duties, arguing that the absence of electrical compliance certificates breached that obligation.
The court accepted that, in an all-risks policy, losses caused by the claimant’s negligence are usually covered. For a reasonable precautions defence to succeed, the claimant’s conduct must amount to recklessness, requiring the claimant to “have actually recognised the danger to which it was exposed, and have done nothing or too little about it”. Mere inadvertence or administrative failure does not suffice. The records showed a well-maintained facility, favourable expert impressions of the electrical installations in the past, and no evidence that the claimant knew of non-compliance or was indifferent to it. On those facts, the defence failed.
There is a growing consensus in the High Court that an insurer must prove recklessness and not negligence when raising this type of defence. Recklessness is difficult to prove.
On the time bar defence, the policy required service of legal process within six months of the rejection of the claim. The claimant issued and served summons in time. Later, after the insurer pleaded that a different set of policy documents applied to those relied on by the claimant, the claimant amended its particulars to align with the insurer’s pleaded policy documents. The insurer argued this created a new, time‑barred claim. The court disagreed. Changing the pleaded policy documents to those the insurer advanced does not convert the claim into a new one.
The key is to distinguish between service of legal process (which must be done in time) and later amendments that do not alter the nature of the claim.
The issues were decided in the claimant’s favour. A trial on the remaining separate issues was postponed.