Super Chem Products Ltd v. American Life and General Insurance Co Ltd & Ors (Trinidad and Tobago) [2004] UKPC 2

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 68 of 2002

Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

Between

Super Chem Products LtdAppellant

American Life and General Insurance Co Ltd & Ors (Trinidad and Tobago)Respondent

Before

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Lord Rodger of Earlsferry

Sir Kenneth Keith Viscount Haldane

Date 5 October 2001

[1]:- Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Rodger of Earlsferry Sir Kenneth Keith [Delivered by Lord Steyn ] The Insurance Policies. The appellant, Super Chem Products Limited, carried on the business of manufacturing detergents, shampoos, disinfectants, adhesives and other chemically based products at its business premises at Plaisance Park, Pointe-a-Pierre, Trinidad. In 1990 it had 193 employees. The respondents agreed to insure the appellant, in respect of the business premises at Plaisance Park, under the terms of two Collective Fire and Special Perils Insurance Policies namely:(a) Policy No. P-2190/S ("the stock policy"), which provided cover against loss and damage to stocks and stores at the premises;

(b) Policy No. P-2138/S ("the consequential loss policy"), which provided cover against business interruption and other losses consequent upon the loss of, or damage to, stocks and stores at the premises. In addition the buildings and equipment were insured to a value of TT$7,500,000 under policy number F21763 ("the buildings and equipment policy"). The latter policy is, however, not directly relevant to the issues on the appeal. The claims.

[2]On 3 April 1990 a fire occurred at the premises. It destroyed large parts of the insured's factory, stock and equipment, and offices. Claims were presented under both the stock and the consequential loss policies. By a letter dated 11 October 1991 the insurers denied liability for the claims. On 19 September 1991 the insured had commenced proceedings against the insurers under the stock policy. On 18 March 1992 the insured started further proceedings against the insurers under the consequential loss policy. Both writs claimed indemnity for sums allegedly due under the two policies. The insurers disputed liability under both policies. The two actions were subsequently consolidated. The terms of the policies.

[3]The material provisions of the stock policy were as follows:

" Condition 11: On the happening of any loss or damage the Insured shall forthwith give notice thereof to the Company, and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the Company (a) a claim in writing for the loss or damage containing as particular an account as may be reasonably practicable of all the several articles or items of property damaged or destroyed, and of the amount of the loss or damage thereto respectively, having regard to their value at the time of the loss or damage, not including profit of any kind. (b) particulars of all other insurance, if any. The Insured shall also at all times at his own expense produce, procure and give to the Company all such further particulars, plans, specifications, books, vouchers, invoices, duplicates or copies thereof, documents, proofs and information with respect to the claim and the origin and cause of the fire and circumstances under which the loss or damage occurred, and any matter touching the liability or the amount of the liability of the Company as may be reasonably required by or on behalf of the Company together with a declaration on oath or in other legal form of the truth of the claim and of any matters connected therewith. No claim under this Policy shall be payable unless the terms of this Condition have been complied with. Condition 13: If the claim be in any respect fraudulent, ... or, if the claim be made and rejected and an action or suit be not commenced within three months after such rejection ... all benefit under this Policy shall be forfeited. Condition 19: In no case whatever shall the Company be liable for any loss or damage after the expiration of twelve months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration."

The relevant provisions of the consequential loss policy were as follows:

" Condition 4: On the happening of any Damage in consequence of which a claim is or may be made under this Policy, the Insured shall forthwith give notice thereof in writing to the first named of the insurers and shall with due diligence do and concur in doing and permit to be done all things which may be reasonably practicable to minimise or check any interruption of or interference with the business or to avoid or diminish the loss, and in the event of a claim being made under this Policy shall, not later than thirty days after the expiry of the Indemnity Period or within such further time as the Insurers may in writing allow, at his own expense deliver to the Insurers in writing a statement setting forth particulars of his claim, together with details of all other Insurances covering the Damage or any part of it or consequential loss of any kind resulting therefrom. The Insured shall at his own expense also produce and furnish to the Insurers such books of account and other business books, vouchers, invoices, balance sheets, and other documents, proofs, information, explanation and other evidence as may reasonably be required by the Insurers for the purpose of investigating or verifying the claim together with (if demanded) a statutory declaration of the truth of the claim and of any matters connected therewith. No claim under this Policy shall be payable unless the terms of this condition have been complied with and in the event of non-compliance therewith in any respect, any payment on account of the claim already made shall be re-paid to the insurers forthwith. Condition 5: If the claim be in any respect fraudulent, ... or, if the claim be made and rejected and an action or suit be not commenced within three months after such rejection ... all benefit under this Policy shall be forfeited."

The defences.

[4]The insurers denied liability inter alia on the following grounds:(1) The fire was caused by arson of, or with the connivance or complicity of, the insured.

(2) Both actions had been commenced out of time in as much as: (i) The stock policy action had not been brought within 12 months of the happening of the loss or damage as required by condition 19 of the stock policy. (ii) They had not complied with the 30 days' notice provision under condition 4 of the consequential loss policy. Further the consequential loss policy action had not been brought within 3 months of the rejection of the claim under condition 5.

(3) There were a number of breaches of the claims co-operation provisions of the two policies. Specifically the insurers alleged failures to provide documentation and information which had reasonably been requested of the insured by the insurers, in breach of condition 11 of the stock policy and condition 4 of the consequential loss policy, due compliance with such conditions being alleged to be a condition precedent to liability under the policies. The insured's reply.

[5]By its reply, and by submissions at trial, with particular reference to the limitation and claims co-operation defences, the insured contended that:(1) Once the insurers had alleged that the claims were fraudulent, they could no longer rely on any conditions in the policies dealing with matters of limitation or claims co-operation. The insurers' conduct in alleging fraud amounted to a repudiation of the contracts of insurance and precluded any reliance on any conditions precedent to liability. This argument raised what was described as the Jureidini point, that being a contention based on the speech of Viscount Haldane, LC, in Jureidini v National British and Irish Millers Insurance Company Limited

[1915] AC 499

, at 505.

(2) Although the insured admitted that the action on the stock policy had not been brought within 12 months of the happening of the loss and damage for the purposes of condition 19 of the stock policy, it was alleged there had been a waiver of the insurers' right to rely on a limitation defence, or an estoppel precluding any such reliance.

(3) Although the insured admitted that it had failed to comply with the 30 days' notice provision under Condition 4 of the consequential loss policy and the action on the consequential loss policy had not been brought within 3 months of the rejection of the claim within the meaning of condition 5 of the consequential loss policy, the insured alleged that it had had no knowledge or notice of such limitation conditions and that therefore such limitation provisions were not binding on it. In effect the insured alleged that the relevant provision had not been incorporated into the consequential loss policy.

(4) Further, the insured alleged a waiver or estoppel precluding reliance on a limitation defence.

(5) No arguments of waiver or estoppel were deployed in relation to the alleged breaches of the claims co-operation clauses under either policy. Apart from the Jureidini issue, the insured's case at trial was confined to the factual case that there had been no failure to comply with the obligation to provide the documentation or information reasonably required of it. Judgment at first instance.

[6]After a trial lasting 79 days Sealey J gave judgment on 29 July 1997. She dismissed the insured's claims under both policies. The outcome was as follows:(1) During the course of the trial the judge had decided that the insurers' unparticularised case of arson could not be entertained. The Court of Appeal dismissed an appeal against this decision. Subsequently the trial judge refused an application to remedy the deficiency by particulars at a late stage in the trial. Accordingly she did not deal with this aspect in her final judgment.

(2) The limitation defence under condition 19 of the stock policy succeeded. Sealey J. rejected the insured's arguments based on (a) the Jureidini issue and (b) waiver or estoppel.

(3) In the action on the consequential loss policy the limitation defences failed. Although the judge rejected the insured's arguments based on (a) the Jureidini issue and (b) waiver and estoppel, she held that since neither the insured nor its brokers (who had prepared the policy) had actual knowledge of the limitation conditions of the consequential loss policy, the limitation conditions were not incorporated into the consequential loss policy.

(4) The claims co-operation defences succeeded in respect of both stock policy and the consequential loss policy actions. In this regard, the judge found that there were failures to provide documentation and information in relation to (a) the insured's income tax returns; (b) cancelled or returned cheques; and (c) the names and addresses of the insured's employees. The judge also rejected the insured's reliance on the decision in Jureidini as an answer to this defence. The Court of Appeal judgment.

[7]The insured appealed to the Court of Appeal. The principal issues were(a) the Jureidini point and its effect on the insurers' right to rely on the limitation and claims co-operation provisions in both policies;

(b) issues concerning waiver and estoppel in relation to the insurers' right to rely on limitation in the stock policy action; and

(c) whether breaches of the claims co-operation provisions had been established. By a unanimous judgment dated 5 October 2001 the Court of Appeal (Sharma, Hamel-Smith and Warner JJA) dismissed the insured's appeal. The judgments of the Court of Appeal focussed principally on the Jureidini issue. The Court of Appeal held that neither the decision in Jureidini itself, nor orthodox contractual analysis, supported the insured's contention that by alleging fraud, the insurers had precluded themselves from relying on the conditions of the policies by way of defence to the claims. The Court of Appeal regarded the issues of waiver and estoppel and of breach of the claims co-operation provisions as essentially raising questions of fact and in the result upheld the judge's findings. The issues.

[8]It will be convenient to consider the issues in the following

[9]It is common ground that the consequential loss policy, which was in standard form, was prepared by the insured's brokers. A copy of that policy was placed before the Board. It contains the relevant limitation provision, and in particular Condition 4 which provided for 30 days' notice and Condition 5 which provided for a three-month limitation period running from the time of the rejection of a claim. It is common ground that a contract was concluded on the basis of the standard form. But at trial the judge was persuaded that Condition 4 and Condition 5 were not incorporated. Her reasoning was that in order to establish incorporation of the limitation provisions the insurers "must prove that the brokers knew about the condition upon which they [the insurers] now rely". She concluded:

"What the defendants have not shown in their attempt at agency, is that the conditions came to the knowledge of the brokers. Without that information, the knowledge cannot attach to the plaintiff at all. Insofar as [the consequential loss action] is concerned, the limitation point does not succeed."

On this point the judge wrongly adopted a subjective approach to the formation of the contract. The decisive fact is that the brokers, whatever they may have known, committed the insured to a contract on all the standard form terms of the consequential loss policy. They unquestionably had authority to do so. Conditions 4 and 5 were validly incorporated. The judge erred.

[10]The Board has not overlooked the fact that this point was not a ground of appeal before the Court of Appeal. It should have been. But it is a pure question of law. In order to grapple with the real issues the Board has had to deal with it. It follows that the limitation defences under both policies must be considered. The Jureidini issue.

[11]In Jureidini v National British and Irish Millers Insurance Company Limited

[1915] AC 499

an insurance company disputed liability of a claim by an insured, arising out of a fire, on the grounds of fraud and arson. At trial these allegations were found to be unsustainable. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an arbitration clause in the policy. The arbitration clause applied only "if any difference arises as to the amount of any loss or damage" and provided that "it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage if disputed shall be first obtained". The House of Lords held that the insurance company was not entitled to rely on the arbitration clause.

[12]In the present case the counsel for the insured argued that because the insurers had alleged arson they are not entitled to rely on the limitation provisions and claims co-operations provision in both policies. This contention was based on a passage in the unreserved opinion of Viscount Haldane in Jureidini . He stated [at 505]:

"there has been in the proceedings throughout a repudiation on the part of the respondents of their liability based upon charges of fraud and arson, the effect of which, if they are right, is that all benefit under the policy is forfeited. But one of the benefits is the right to go to arbitration under this contract, and to establish your claim in a way which may, to some people, seem preferable to proceeding in the Courts; and accordingly that is one of the things which the appellants have, according to the respondents, forfeited with every other benefit under the contract. Now my Lords, speaking for myself, when there is a repudiation which goes to the substance of the whole contract I do not see how the person setting up that repudiation can be entitled to insist on a subordinate term of the contract still being enforced."

If one were to assume that this passage correctly reflected the ratio decidendi of Jureidini it would not assist the insured in the present case. There are at least three obstacles in the way of the insured's argument. First, properly understood the insurers' defence of arson was not a repudiation of the contract but rather a defence based on the contract. Secondly, it is part of the very alphabet of contract law that, despite a repudiatory breach, obligations under the contract survive until the breach is accepted by the innocent party as terminating the contract. Here there was no such acceptance. Thirdly, counsel for the insured rightly accepted that if the relevant limitation and claims co-operation defences had come into existence before the insurers rejected the claim on 11 October 1991 the point cannot assist the insured. That is indeed the factual position in the present case. In the circumstances the Jureidini defence must be rejected.

[13]But the Board cannot leave this aspect without considering whether Viscount Haldane's observations represent good law. Contract law cannot and does not prevent an insurer from resisting a claim on alternative bases, one involving an allegation of fraud and the other breaches of policy conditions. It would be contrary to principle and business common sense, which underpin our commercial law, to require an insurer to choose between alleging fraud, thereby abandoning the right to invoke other conditions of the policy, or to rely on those provisions, thereby giving up the right to allege fraud. With profound respect it must be said that Viscount Haldane's statement of principle was either wrong or required such radical qualification as to leave it with virtually no useful content. The Board has felt it appropriate to address this point because Viscount Haldane's statement has bedevilled our commercial law for too long.

[14]The observations of other Law Lords in Jureidini , and assessment of that case in subsequent decisions of high authority, have demonstrated that Viscount Haldane's observations do not correctly state the effect of that decision. In Jureidini Lord Dunedin based his decision on the view that the arbitration clause applied only to differences concerning the amount of loss and, therefore, not to a claim that was repudiated by the insurer altogether (at 507). Lord Atkinson concurred on the same "short ground" (at 507). Lord Parmoor also confined his judgment to noting "that no difference had arisen as regards matters which could come for decision under clause 17, and that consequently the clause had no application" (at 508). Lord Parker of Waddington simply concurred in the result.

[15]In Woodall v Pearl Assurance Co Ltd

[1919] 1 KB 593

Bankes LJ made clear that in his view Viscount Haldane's statement was not part of the ratio decidendi of Jureidini: at 605. Warrington LJ took the same view: at 609.

[16]This view of Jureidini was trenchantly reinforced in Sanderson & Son v Amour & Co Ltd 1922 SC (HL) 117 in which Lord Dunedin observed [at 128]:

"… I should say a single word as to the case of Jureidini . That case has in my view no application, for the simple reason that the clause of reference there was not a reference of all disputes, but only a reference as to the evaluation of loss. In other words, the clause was not a clause of the universal sort ..."

In Sanderson Viscount Haldane and Lord Shaw of Dunfermline expressly agreed with Lord Dunedin's opinion. In other words the ratio of Jureidini is based on the special wording of the arbitration clause and the fact that no dispute as to quantum had arisen.

[17]In Heyman v Darwins Limited

[1942] AC 356

the House of Lords took the view that Viscount Haldane's comments did not form the ratio of Jureidini . Viscount Simon LC set out the reasoning behind the decision in Jureidini as expressed by Lords Dunedin, Atkinson and Parmoor, and observed:

"It is on this second ground that I think the majority of the House should be regarded as having decided the appeal" (at 365). Lord Porter, at 401, concurred: "... I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of submission and the fact that no dispute had arisen on the only point submitted to arbitration."

Lord Wright discussed what he called the curious case of Jureidini (at 385) and preferred the narrow view of its ratio decidendi. Lord Macmillan gave a separate opinion, with which Lord Russell of Killowen agreed, in which the analysis of Jureidini is perhaps not entirely clear.

[18]In Photo Production Ltd v Securicor Transport Ltd

[1980] AC 827

the House of Lords held that a fundamental breach, whilst bringing to an end primary obligations under the contract, does not necessarily bring to an end secondary obligations, such as exclusion clauses. Lord Diplock made clear that whether or not the secondary obligations survive is a matter of construction: (at 848). Photo Productions Limited was a landmark decision. Its relevance in the present context is demonstrated by the subsequent decision of the Privy Council in Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd

[1981] 1 WLR 138

, commonly referred to as the New York Star case. A question arose, in the context of dispute between a consignee of goods and stevedores, whether the latter could rely on a time bar. The judgment of the Privy Council was given by Lord Wilberforce. He held (at 144-146):

"Thirdly, as to 'fundamental breach'. The proposition that exemption clauses may be held inapplicable to certain breaches of contract as a matter of construction of the contract, as held by the House of Lords in Suisse Atlantique Société d'Armement Maritime S.A. v N.V. Rotterdamsche Kolen Centrale [1967] 1 AC 361 and Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 and endorsed in Australia by Windeyer J. in Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd (1966) 115 CLR 353, 376 was not disputed. But Mr Hobhouse for the consignee put forward a special, and ingenious, argument that, because of the fundamental nature of the breach, the stevedore had deprived itself of the benefit of clause 17 of the bill of lading - the time bar clause. A breach of a repudiatory character, which he contended that the breach in question was, entitles the innocent party, unless he waives the breach, to claim to be released from further performance of his obligations under the contract - so far their Lordships of course agree. One of these obligations, counsel proceeded to argue, was to bring any action upon the breach within a period of one year, and the innocent party was released from this obligation. An alternative way of putting it was that the bringing of suit within one year was a condition with which the innocent party was obliged to comply: the repudiatory breach discharged this condition. ... Their Lordships' opinion upon these arguments is clear. However adroitly presented, they are unsound, and indeed unreal. Clause 17 is drafted in general and all-embracing terms: 'In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered.' … it is quite unreal to equate this clause with those provisions in the contract which relate to performance. It is a clause which comes into operation when contractual performance has become impossible, or has been given up: then, it regulates the manner in which liability for breach of contract is to be established. In this respect their Lordships find it relevantly indistinguishable from an arbitration clause, or a forum clause, which, on clear authority, survive a repudiatory breach: see Heyman v Darwins [1942] AC 356, Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 , 849. Mr Hobhouse appealed for support to some observations by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd, at p 849, where reference is made to putting an end 'to all primary obligations ... remaining unperformed'. But these words were never intended to cover such 'obligations' to use Lord Diplock's word, as arise when primary obligations have been put an end to. There then arise, on his Lordship's analysis, secondary obligations which include an obligation to pay monetary compensation. Whether these have been modified by agreement is a matter of construction of the contract. The analysis, indeed, so far from supporting the consignee's argument, is directly opposed to it. Their Lordships are of opinion that, on construction and analysis, clause 17 plainly operates to exclude the consignee's claim."

Unfortunately, the citation was lengthy but it demonstrates the fallacy of the argument based on Jureidini with great clarity and authority.

[19]It follows that as a matter of precedent Jureidini is not an authoritative decision on insurance law or general contract law. If it has any remaining force it would be in the field of arbitration law, but then only on an arbitration clause on all fours with the clause in that case. The Board rejects all the insured's arguments on the Jureidini issue in both actions.

[20]Finally, recognising the obstacles in the way of directly relying on Jureidini, counsel for the insured invoked Lord Wright's observation in Heyman v Darwins, supra, at 387 that "it is familiar law that a party who has prevented fulfilment of a condition precedent cannot set up the fact of its non-fulfilment". Nothing that the insurers did prevented the insured from issuing a writ within the limitation periods of the two policies. Nothing that the insurers did prevented the insured from complying with the claims co-operation provisions of the two policies before the claims were rejected on 11 October 1991. The principle stated by Lord Wright is inapplicable. Waiver and estoppel.

[21]It will be convenient to consider in the first place the issues of waiver and estoppel in the context of the time bar in the stock policy. It is common ground that the insured never asked for an extension of the limitation period and that the insurers never volunteered an extension of time. The insured relied in support of its pleas on conduct. Depending on the nature of the conduct that is, of course, a tenable position. The insured enlisted the doctrines of waiver and estoppel. Somewhat tentatively it was also suggested that the insurers could be debarred by election from raising a time bar. Election is more appropriately applicable where a party has a right to choose between two things: The Kanchenjunga [1990] Lloyds LR 391, at 398; Meagher, Gummow, and Lehane, Equity: Doctrines and Remedies, 4th ed., 1992, 433-435. The Board considers that in the present context the insured must establish either a waiver or an estoppel. If the insured fails to do so, election cannot assist. The concepts of waiver and estoppel have often been explained. Generally, waiver is of a unilateral character: it involves giving up something. Estoppel by representation is bilateral in character and focuses on the impact on the representee. This is, of course, an extremely general statement. But it is sufficient for present purposes since it is common ground that waiver and estoppel can only be established, in the circumstances of the present case, if the insurers made a clear and unequivocal representation to the insured that they would not rely on the time bar: Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd

[1972] AC 741

, at 753, per Lord Hailsham of St Marylebone, LC. If the insured cannot establish such a clear and unequivocal representation both pleas must fail.

[22]The insured relied on three categories of evidence. The first category of evidence related to discussions between Mr Doyle, an insurance consultant adjuster acting for the insured, and Mr Romany, the claims manager of the insurers, culminating in a conversation shortly before the expiry of the time bar under the stock policy. The evidence regarding these discussions was reviewed in detail by the trial judge and again in the Court of Appeal. Mr Romany made clear that the insurers were awaiting advice on the question of arson. Both Mr Doyle and Mr Romany were aware of the impending time bar. Mr Doyle knew that liability was in dispute and he said that proceedings would be commenced if the insurers were not going to pay the claim. What Mr Romany did not know was whether the insured had issued a protective writ. It was rightly conceded before the Board that nothing said on behalf of the insurers during the discussions could amount to a representation, let alone an unequivocal one, that the time bar would not be relied on. Moreover, as the Court of Appeal held, the insured was not encouraged by Mr Romany in any way to think that the time bar would not be relied on.

[23]The second category of evidence relied on was evidence of investigation of and discussion of the claim, which continued after the expiry of the limitation period. Reliance was placed on exchanges between 9 May 1991 and 15 July 1991. Except in one case these exchanges related to the claim under the consequential loss policy. The exception is a letter of 21 June 1991 to the bank which is irrelevant. The exchanges about the position regarding the consequential loss claim are irrelevant to the claim under the stock policy. For this reason alone reliance on these exchanges is misconceived. Secondly, insurers are entitled to investigate liability and quantum at the same time and to negotiate about both at the same time, and often prudence will require them to do so. Moreover, the mere fact that a party has continued to negotiate with the other party about the claim after the limitation period had expired, without anything being agreed about what happens if the negotiations break down, cannot give rise to a waiver or estoppel: Hillingdon London Borough Council v ARC Ltd (No 2)

[2000] 3 EGLR 97

, at 104, per Arden LJ; Seechurn v ACE Insurance SA [2002] 2 Lloyd's LR 390. Nothing in the exchanges in the present case is therefore capable of creating a representation that the time bar would not be relied on. Thirdly, there is nothing to show that the insurers knew whether a protective writ had been issued or not. It is therefore impossible to say that their silence signified that they would not be relying on the time bar. It is further clear that in this case the insurers did nothing to raise an expectation in the mind of the insured that the time bar would not be relied on. The judge and the Court of Appeal were right to conclude that the insurers' conduct in investigating the claims could not give rise to a waiver or estoppel.

[24]The third category of evidence relied on related to interim payments made by some insurers who also subscribed to the separate buildings policy. These payments were not only made under a different policy but were made to mortgagees under a policy provision which provided that the mortgagees' interest "shall not be invalidated by any act or neglect of" the insured. There would have been a reasonable view that arson by the insured (if established) could not defeat a claim by the mortgagees. This is the context in which the interim payments must be seen. In the circumstances the interim payments could not give rise to the type of representation required for a waiver or estoppel.

[25]It is now necessary to turn to the issues of waiver and estoppel in the context of the time bars in the consequential loss policy, viz the 30 days' notice provision under Condition 4 and the 3 months provision under Condition 5. Having held these conditions to be validly incorporated, it is not disputed that, subject to waiver and estoppel, these time bars took effect. The provision under Condition 4 took effect 30 days after the expiry of the indemnity period, ie 30 days after 3 April 1990. The provision under Condition 5 took effect on 11 January 1992. The writ was, of course, only issued on 18 March 1992.

[26]The conduct alleged to give rise to the waiver and estoppel in respect of both policies has already been described. The reasons why that conduct cannot amount to waiver or estoppel in respect of the claim under the stock policy are, subject to one point, equally applicable in respect of the claim under the consequential loss policy. The qualification is that the point in paragraph 23 about the exchanges relating only to the consequential loss policy and not the stock policy is not relevant in the present context. But the other reasons given are applicable.

[27]It follows that the pleas of waiver and estoppel must also fail in respect of the time bars under the consequential loss policy. Claims co-operation clauses.

[28]The claims co-operation provision in Condition 11 of the stock policy reads as follows:

"The Insured shall also at all times at his own expense produce, procure and give to the Company all such further particulars, plans, specifications, books, vouchers, invoices, duplicates or copies thereof, documents, proofs and information (i) with respect to the claim and (ii) the origin and cause of the fire and circumstances under which the loss or damage occurred, and (iii) any matter touching the liability or (iv) the amount of the liability of the Company as may be reasonably required by or on behalf of the Company together with a declaration on oath or in other legal form of the truth of the claim and any matters connected therewith. No claim under this Policy shall be payable unless the terms of this Condition have been complied with."

The corresponding provision in Condition 4 of the consequential loss policy provides as follows:

"The Insured shall at his own expense also produce and furnish to the Insurers such books of account and other business books, vouchers, invoices, balance sheets, and other documents, proofs, information, explanation and other evidence as may reasonably be required by the Insurers for the purpose of investigating or verifying the claim together with (if demanded) a statutory declaration of the truth of the claim and any matters connected therewith. No claim under this Policy shall be payable unless the terms of this condition have been complied with and in the event of non-compliance therewith in any respect, any payment on account of the claim already made shall be re-paid to the Insurers forthwith."

[29]At trial the judge cited a decision of the New Zealand Court of Appeal in Challenge Finance Limited v State Insurance General Manager

[1982] 1 NZLR 762

on the correct approach to such clauses. The relevant passage in the judgment of the court, at pp 766-767 (delivered by Somers J) read as follows:

"It is not to be supposed that the condition in the policy required of the insured by way of information more than he had or could practically ascertain. Both parties accepted as applicable the statement in 25 Halsbury's Laws of England (4th ed) para 505: ' Particulars required . The particulars required necessarily vary according to the nature of the insurance. They must be furnished with such details as are reasonably practicable. Whether the details given are sufficient or not is a question of degree, depending partly upon the materials available which, particularly in the case of a fire, may be scanty, and partly upon the time within which they have to be furnished. In any case, the assured has not performed his duty adequately unless he has furnished the best particulars which the circumstances permit."

That is how the judge approached the issue in the present case. The Court of Appeal approached the matter in a similar way. At neither level was there any dispute about this legal approach to the claims co-operation provisions.

[30]During oral argument the question was raised whether the clauses in question could be construed not as conditions but as innominate terms. The Board is satisfied that it is too late to entertain such an argument. In declining to consider this point the Board is satisfied that, if the provisions were to be interpreted as innominate terms, the result would nevertheless have been the same.

[31]Only one other question of law needs to be mentioned. Hamel-Smith JA appeared to conclude that insurers could not rely on the claims co-operation condition once they had "repudiated" the policy. The judgments of Sharma and Warner JJA do not contain any such conclusion. Hamel-Smith JA's analysis appears to be focussing on the separate question of whether, after repudiation, an insured could be required to provide continued performance of a primary obligation to provide claims documentation and information, rather than whether or not accrued breaches of that obligation (as found by the trial judge) could still be relied on by way of defence. The point raised by Hamel-Smith JA does not arise in the present case.

[32]In these circumstances the issues in respect of claims co-operation are entirely factual in nature. Sealey J made her findings under this heading on three matters, viz requests for the insured's income tax returns, cancelled cheques, and the names and addresses of employers. In respect of all three categories the judge observed that it was not suggested that the documents were not reasonably required for the claims to be processed. Her findings on the request for the insured's income tax returns were as follows:

"The defendants requested the plaintiff's income tax returns. These were never provided. The plaintiff's explanation was that they were destroyed by fire and efforts by their auditor to obtain them were unsuccessful. Attorney-at-law for the plaintiff said that the plaintiff's servants and/or agents made strenuous effort to obtain same. All that Mr Sawh said is that he requested the documents from the Board of Inland Revenue and that their auditor Mr Omar Ali made the same request also without success. What is difficult for me to conceive is that the accountant/auditor was unable in 1990 to supply at least copies of tax returns for the year 1989, or that sufficient effort was made to obtain them from the Board of Inland Revenue. I am fortified in this view, by the statement made by Mr Sawh on the 3rd July 1995, that the efforts to obtain the tax returns were not successful, and that he did not mean by that that all methods to obtain the tax returns were exhausted. Did the plaintiff do all that was reasonably required to obtain the Income tax returns? I do not think so, the evidence of strenuous effort on the part of the plaintiff is not there."

The Court of Appeal affirmed these findings of fact. In the result there are concurrent findings of fact. The Board has carefully considered the oral and written arguments of the insured but concludes that the judge and Court of Appeal came to the correct conclusion on this aspect.

The judge dealt with the findings of fact on cancelled cheques as follows:

"It is a fact that some of the information was provided, so that I have not accepted the statement of Mr Zoe that he did not receive any information. However, there was other significant information which was not supplied to the defendants. One such request was for the cancelled cheques. According to Mr Sawh, when the request was made for the returned cheques, he sought to put them together and when it dawned upon him that there were so many, they thought that Mr Zoe should come to their premises to inspect them. That suggestion was not responded to and sometime after, a break-in occurred at the premises. Several documents were taken and the intruder was found to be an employee who had been defrauding the company. One wonders whether one should attach any significance to the timing of the break-in. Blame for not getting the documents in a timely fashion has been attributed to each side. Mr Sawh is saying that Mr Zoe did not come in when he was invited, and Mr Zoe is saying that he was put off several times, until the events related herein. Then it was suggested that the defendants could go to the bank and view the cheques there, as it was going to be quite costly to have them copied by the bank. Attorney for the defendants submitted that that was not a realistic approach since according to the clause in the policy, they were to be supplied at the cost of insured. It seems to me that the approach taken by the plaintiff cannot be in compliance with the terms of the policy."

Again, the Court of Appeal affirmed the judge's findings of fact. This aspect is, however, more troublesome, notably because the judge did not resolve the dispute between Mr Sawh and Mr Zoe. The Board prefers to express no concluded view on it.

[34]On the third matter

the judge found:

"Another request which was made, was for the names and address of employees. This was not done, and Mr Sawh in evidence said that in hindsight, he could have obtained this information by going directly to the employees and requesting their addresses."

The Court of Appeal affirmed this finding of fact. It is a concurrent finding of fact. None of the oral or written arguments advanced on this appeal have caused the Board to question the correctness of this finding.

[35]It follows that at least in respect of the income tax returns and the list of employees' names and addresses the judge, and the Court of Appeal, were right to conclude that the insured was in breach of the claims co-operation provisions. Independent of the time bar defences, which the Board have already upheld, the breaches of the claims co-operation provisions afford the insurers complete defences in both actions. Conclusion.

[36]The appeal must be dismissed with costs.

order

(1) The correctness of the judge's conclusion that the limitation provisions contained in the consequential loss policy were not incorporated in the contract.

(2) The Jureidini question, viz whether the insurers' assertion of fraud precludes them from relying on the limitation condition (i) in the stock policy and (ii) subject to the decision on (1) above, in the consequential loss policy, as well as on the claims co-operation conditions in both policies.

(3) The question whether the insured has established the necessary ingredients for a successful plea of waiver or estoppel to defeat the limitation defence under the stock policy and, if it arises, under the consequential loss policy.

(4) The question whether the insured's challenge to the judge's findings that there were breaches of the claims co-operation conditions in the stock policy and in the consequential loss policy ought to succeed. The incorporation issue.