In the recent judgment of Maritsave Ltd v National Farmers' Union Mutual Insurance Society Ltd (2011) EWHC 1660 (QB), the High Court found in favour of Maritsave in respect of a claim for fire damage losses under a property insurance policy and rejected the Defendant insurer's contention that Maritsave had not complied with certain unoccupied property warranties.

The Claimant's property had been damaged by a fire. It was common ground that the fire was started deliberately by an intruder. The Claimant sought a declaration that it was entitled to be indemnified by the Defendant insurer in respect of the damage caused by the fire, and claimed damages for breach of its insurance policy. The fact that the property had been unoccupied triggered the application of certain warranties that provided outside doors would be kept securely locked and windows firmly secured.

The case turned on whether or not the warranties had been complied with given the conflicting evidence provided by each party's expert and factual witnesses. Mr Justice Supperstone found that they had, holding that the Defendant had not sufficiently challenged the evidence of the Claimant's director for it to be rejected. There was also some evidence of forced means of entry into the building, raising doubt as to whether the intruder had taken advantage of security lapses.

The judgment underlines that where an insurer seeks to rely on a breach of warranty defence, it must clearly and positively prove such a breach to the civil standard of proof. It also illustrates the importance of contemporaneous evidence gathering.