Chris Fellowes November 16 2015 Subcontractor's insurance derailed by non-disclosure and misrepresentation Mayer Brown | Projects, Construction & Infrastructure - United Kingdom Chris Fellowes Projects, Construction & Infrastructure FactsDecisionFactsA tunnelling subcontractor installed a micro-tunnel for power cables under a railway line. Ground settlement above the tunnel was greater than anticipated (or permitted by Network Rail) and a void occurred in an adjacent road. Another void under the railway line subsequently caused a train derailment. The subcontractor renewed its insurance cover during this period, but failed at the relevant time to disclose the additional settlement and the road void.The court found that it had also represented to the insurer that it was not tunnelling under or near to an active railway line. Did this non-disclosure and misrepresentation entitle the insurer to avoid the policy?If a prospective insured fails to disclose a material circumstance or makes a material misrepresentation, a policy can be avoided. Whether a circumstance is material is a question of fact to be determined objectively by the court from the perspective of a hypothetical prudent insurer. It does not depend on the insured's own appreciation or assessment of its potential importance and is not settled automatically by existing practice or the opinion of insurers.The relevant question is simply whether the circumstance would have had "an effect on the mind of the insurer in weighing up the risk". A misrepresentation is similarly material if a prudent insurer would have taken the matter into account. Again it is a question of fact to be determined objectively by the court and there is no need for an insurer to prove negligence or fraud.DecisionThe court found that there had been material non-disclosure and misrepresentation, and that the insurer was therefore entitled to avoid the policy.(1)For further information on this topic please contact Chris Fellowes at Mayer Brown International LLP by telephone (+44 20 3130 3000) or email ([email protected]). The Mayer Brown International LLP website can be accessed at www.mayerbrown.com.Endnotes(1) Brit UW Ltd v F & B Trenchless Solutions Ltd  EWHC 2237 (Comm) (July 31 2015).