A recent decision of the High Court has illustrated the perils of repudiating an insurance policy late into proceedings.
In Berney v. South Dublin County Council (High Court, Hedigan J, 6 June 2014) the plaintiff succeeded in an action against her neighbours (the second and third named defendants) when a footpath had caused her to trip and fall. However, her claim against the County Council (the first named defendant) failed.
The insurance company's solicitor came off record for the neighbour defendants after the case had been first listed for hearing, but before the case was heard. The insurer repudiated liability on the basis that the neighbour defendants had misled the insurer and this was accepted by the court. Nevertheless, the court awarded costs to the plaintiff and the County Council as against the insurance company. The court applied McTiernan v. Quin Con Developments (High Court, Laffoy J, 17 April 2007) and found that the insurer had delayed excessively in repudiating the contract of insurance and had not made reasonable and diligent enquiries to reveal the material relied on to repudiate. If the insurance company had carried out an earlier investigation it would have revealed that the neighbour defendants had carried out significant alterations to the footpath without the prior knowledge.