Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work And Pensions

Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work And Pensions

The court held that the 1997 Act, as interpreted and applied to pre-1997 Act insurance policies in disease cases, was incompatible with the Claimants' rights under Article 1 Protocol 1 ECHR in three specific respects: (i) requiring insurers to repay 100% of recoverable benefit despite contributory negligence, (ii)...

Source-derived case information.

Parties
Claimant: Aviva Insurance Limited; Claimant: Swiss Reinsurance Company Limited; Defendant: Secretary of State for Work and Pensions
Jurisdiction
England and Wales
Judgment Date
12 January 2021
Procedural Posture
Judicial Review / Post Substantive Judgment; Consequential Matters and Remedies
Outcome
Claimants' judicial review claim succeeds in principle; both parties granted permission to appeal; no immediate quashing of Bainbridge certificate; remedies and financial loss issues to be addressed in further proceedings.
Legal Topics
Article 1 Protocol 1 ECHR, Retrospective Legislation, Reading Down Legislation, Judicial Review Remedies, Social Security (recovery of Benefits) Act 1997, Limitation of Insurers' Liability, Section 3 Human Rights Act 1998, Section 31(2 A) Senior Courts Act 1981
Public Law Human Rights Law Insurance Law Article 1 Protocol 1 ECHR Retrospective Legislation Reading Down Legislation Judicial Review Remedies Social Security (recovery of Benefits) Act 1997 +3 more

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Summary, issues, holding and outcome

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Parties

Aviva Insurance Limited

Claimant

Swiss Reinsurance Company Limited

Claimant

Secretary of State for Work and Pensions

Defendant

Procedural Posture

Judicial Review / Post Substantive Judgment; Consequential Matters and Remedies

Legal Issues

  1. 1 Scope of judgment and appropriate order under the 1997 Act
  2. 2 Starting dates for non-compliance with A1P1
  3. 3 Whether the 1997 Act can be read down under HRA section 3

Ratio Decidendi

The court held that the 1997 Act, as interpreted and applied to pre-1997 Act insurance policies in disease cases, was incompatible with the Claimants' rights under Article 1 Protocol 1 ECHR in three specific respects: (i) requiring insurers to repay 100% of recoverable benefit despite contributory negligence, (ii) requiring repayment for divisible diseases where the insurer's liability was only partial, and (iii) requiring full repayment for indivisible diseases where other liable parties or insurers could not be traced. The court found it possible and necessary to read down the legislation under HRA section 3 to proportionately reduce insurers' liability in these cases. The Defendant...

Court Disposition

Claimants' judicial review claim succeeds in principle; both parties granted permission to appeal; no immediate quashing of Bainbridge certificate; remedies and financial loss issues to be addressed in further proceedings.

Orders

  • The 1997 Act is to be read down under HRA section 3 to proportionately reduce insurers' liability in the specified circumstances.
  • Claimants granted liberty to apply for quashing of the Bainbridge certificate.