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Once More Unto the Breach: Remedies for the Non-Payment of Insurance Claims after Blake

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Chapter Summary

This chapter considers alternative mechanisms for the award of damages beyond the indemnity provided for in the contract. It details the unsuccessful attempts to gain damages for consequential losses. The chapter provides some further examples of alleged bad faith behavior by insurers, lest it be thought that Sprung is an isolated example. The rule in Sprung has been consistently cited as a rule in need of reform. Finally, it concludes with a review of the remedies that have been reconsidered since Blake, exemplary damages, disgorgement and hypothetical release fees, in search of a new model for late payments. The English courts have been restrained in awarding damages for distress caused by the late payment of an insurance claim. The potential for remedies claimed on a gains-based rather than claimant loss model to supplement compensatory damages has now been fulfilled in a variety of contractual situations.

Keywords: Blake; claimant loss model; compensatory damages; English courts; insurance claim; Sprung



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