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Avon Insurance plc v Swire Fraser Ltd  1 All ER (Comm) 573
The nature of misrepresentation
The claimant was a stop loss insurance company which made a claim against the defendant insurance brokers under the Misrepresentation Act 1967 on the basis that it had been induced into the contract by assurances made by the defendant as to how the risk of each potential insured party was to be assessed. The claimants asserted that a booklet produced by the defendant stated that each insured party would be individually assessed by the defendant’s lead underwriter in accordance with the stated underwriting criteria. The claims were not assessed individually in this manner and the claimant sought damages at the rate available in fraud. The defendant asserted that damages were calculable at the same rate as in negligent misrepresentation.
The issue in this context was whether the contents of the booklet and the manner in which the risks were assessed for underwriting constituted a misrepresentation.
It was held that the booklet did not constitute a misrepresentation. The fact that the risks were assessed by a team under the control of the head underwriter was not a significant departure from the words of the booklet. The representation was true, even though it did not exactly match the terms of the booklet. In any event, this point alone, had not been the primary inducement to the claimant to enter into the agreement and therefore there was no misrepresentation. If there had been, the correct calculation of damages was on the fraud basis and therefore, the court should take care in finding that a misrepresentation had occurred.
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