b'TABLE OF CONTENTSon an estoppel, prevented the two insurers fromIn the context of the insurers investigations into a relying on an estoppel founded on non-fraudulentsubsequent claim on the policies resulting from representations to reject the banks claim for loss.physical damages and losses at the development, The significance of this case, aside from itsthe insurer discovered the prior criminal discussion of estoppels by convention, is itsproceedings, and sought to avoid Berkshires illustration of how non-avoidance clausespolicies on the basis of a breach of the duty of fair will be interpreted.presentation under section 3 of the Insurance Act 2015Berkshire argued that (i) the director who Berkshire Assets (West London)approved the renewal had not been aware of the charge against the other director; but (ii) in any Ltd v AXA Insurance UK Plc [2021]event, Berkshire had made a fair presentation of EWHC 2689 (Comm) the risk because the charges were not material, relating as they did to the directors directorship In October 2021, the Queens Bench Division of theof an unrelated company, and given the fact that High Court handed down judgment in Berkshire vthe director had not been accused of acting AXA, the first reported case to address the duty ofdishonestly (in fact, following the insurers fair presentation under the Insurance Act 2015.decision to avoid the policies, the charges against The case, which involved business interruptionthe director were dropped). and construction all risks insurance policies,In the subsequent proceedings, the Court concerned the insured joint venture vehicle,considered the two relevant elements of materiality Berkshire (which had been set up for the purposeand inducement, specifically (i) whether the of a residential complex development), failing todirectors criminal charge was in fact a material disclose, pre-inception and on renewal, that onecircumstance for the purposes of the duty of fair of its directors had been the subject of criminalpresentation; and (ii) if it was, and had it been proceedings in Malaysia. This was despite the factdisclosed to the insurer, whether the insurer would that a pre-inception quote issued by the insurerhave agreed to insure Berkshire. stipulated, in a section entitled fair presentation of risk, that coverage would be subject to variousConfirming that pre-Insurance Act common law on statements, including one specifically confirmingthe materiality of circumstances continued to apply, that none of Berkshires directors had beenthe Court foundby reference to established convicted of or charged with a criminal offence.principles and based on the insurers factual and The renewal schedule also referred to Berkshiresexpert evidencethat the charge was a material obligation to make a fair presentation of the risk,circumstance (notwithstanding that it did not and to bring any changes, or inaccuracies orinvolve allegations of dishonesty); and that the omissions in the previously provided information,insurer would not have written the policies had it to the insurers attention. The renewal, which wasknown of the charge, in significant part based on approved by a different director, made nothe content of an internal practice note within the reference to the criminal proceedings.insurer which indicated that criminal allegations MAYER BROWN |165'