In Jonathan Smyth v St Andrew's Insurance plc [2012] EWHC 2511 (QB) Mr John Randall QC (sitting as a Deputy High Court Judge) held that defendant insurers (St Andrew's) had failed to establish that the claimant's (Smyth) partner had deliberately started a fire which had caused extensive damage to Smyth's property, and thus St Andrews could not avail itself of a clause in the relevant insurance policy which excluded damage caused by Smyth's "family".

The case turned on a simple question of fact, namely, whether Smyth's partner had deliberately caused the fire. Randell QC stated that it was common ground that the burden of proof was on St Andrew's to show that Smyth's partner had deliberately started the fire. He added that since on St Andrew's case Smyth's partner had committed a serious criminal offence, regard had to be given to the general principle that, to the extent appropriate in the circumstances, the more serious the allegation, the clearer the evidence required to support the allegation.

Against that background, and having heard the factual evidence at trial, the court held that it was not satisfied that Smyth's partner had deliberately started the fire. It was concluded that the most likely cause of the fire was actually an accidentally discarded cigarette in the basement of the house.

This case illustrates the difficulties caused by the burden of proof being placed on insurers when they seek to rely on exclusion clauses in their policies. Such difficulties will be particularly pronounced in circumstances where the facts upon which the insurer relies when seeking to invoke the exclusion involve serious allegations of misconduct by the insured.