Whether judge in a case on avoidance should recuse himself

One of the issues in this case was whether the defendant insurer was entitled to avoid the policy for non-disclosure after the policy had been placed. Clause 5 of the policy provided that "if in connection with the happening or purported happening of any event insured by this Policy, the Member makes an untrue statement…or omits to disclose a Material Fact, the cover provided by the Policy…will immediately become void.." It was therefore argued by the defendant that it did not matter if the claimant insured had been innocent of all fault, the policy could still be avoided (ie fraud or recklessness was not required).

The judge had asked if there were any relevant statutory or regulatory provisions which might relate to the application, interpretation or effect of Clause 5 and when the claimant did not refer to that issue in his further written submissions, the judge asked for an opportunity to hear oral submissions on certain matters. In response to the defendant's question, he advised that he wished to hear submissions on whether an innocent or careless omission would have the result of voiding the policy.

Two months later, the defendant invited the judge to recuse himself, in part on the basis that he attempted to pursue an analysis of the law which would limit the ambit or effect of Clause 5 to the benefit of the claimant alone, even though the claimant had not pursued the point. The judge rejected that argument: "In the absence, at least, of any express concession on the part of the party in whose interests a legal point has not been made or developed, the judge is not required to turn a blind eye to the potential points of law which may not have been fully or adequately considered by the parties". He rejected any appearance of bias and refused to recuse himself.

As a preliminary issue, the judge also noted that the application had not complied with the formalities of CPR r23 as no application notice had been filed. Although the court can dispense with an application notice, that is "an act of discretion and not one of generic entitlement". He did however agree to dispense with the need to file an application notice given the further delay which that would have caused.

COMMENT: As noted in the judgment, the state of mind required of the assured under common law for a breach of the post-contractual duty of utmost good faith is unresolved by prior caselaw (although some textbooks refer to the requirement for fraud to be demonstrated). Accordingly, if this case goes to trial, this issue may be resolved (although it may instead turn upon an interpretation of the particular clause in the policy). (Although the Insurance Act 2015 retained the duty of utmost good faith (including post-contract), it is no longer possible to avoid the contract on the basis of the breach of this duty).