In the judgment of Cometsambre SA v Lloyd’s Insurance Company SA HIG 5321 [2026] EWHC 1837 (Comm), the English Commercial Court considered the duty of fair presentation under the Insurance Act 2015, finding in favour of the insurer.
The Decision
A fire broke out onboard the LOWLANDS MIMOSA while it was loading scrap metal at Ghent. A substantial charterparty claim was brought against the claimant who sought indemnification under its Charterers’ Liability policy. The defendant sought to avoid the policy, arguing that the claimant breached its duty of fair presentation by failing to disclose five fires during the 18 months preceding renewal.
The court’s decision determined the following:
- Materiality: All five fires were material – i.e. they influenced the judgment of a prudent underwriter when deciding whether to write the risk and on what terms, because they informed the claimant’s risk profile, irrespective of whether a claim was made. The pattern of fires across 18 months, following 12 years without any fires, was a disclosable change to the claimant’s risk profile.
- Knowledge of the insurer: Given the type of scrap cargo being shipped, and the steps taken by the insured to ensure that it was clean and non-oily, the insurer would reasonably have expected the risk of fire to be low. The insurer would also not have known of the occurrence of the five fires.
- Insurer on notice: The insurer could not be put on notice to make further enquiries where it lacked knowledge of the fires. Concluding otherwise would improperly reverse the burden of fair presentation.
- Waiver: A lack of a renewal questionnaire does not, without more, constitute the insurer waiving disclosure of the fires.
- Inducement: The insurer would not have renewed the policy had it known of the fires, because the risk would have been disproportionate to the annual premium earned.
Practical Takeaways
Market practitioners should bear in mind that a general awareness of risks should be distinguished from a presumption of the insurer having knowledge of an incident.
The courts do not apply any presumption against insurers when assessing whether they would have written the risk had the material circumstance been disclosed.
The decision serves as a reminder that incidents which do not give rise to claims may need to be disclosed to insurers if relevant to the insured’s risk profile.
For an in-depth analysis, see HFW’s full briefing here.
