Carter V Boehm Considered

• Author: Max Barrett
• Position: Judge of the High Court
• Pages: 92-106

IRISH JUDICIAL STUDIES JOURNAL

92

[2020] Irish Judicial Studies Journal Vol 4(1)

92

CARTER V BOEHM CONSIDERED

Abstract: This article looks at the significance of Carter v Boehm in developing the duty of disclosure in

insurance contracts and examines the evolution of that duty over the more than 250 years since the decision.

Lord Mansfield espoused a narrow duty of disclosure in Carter, but a wider duty of disclosure developed in

the English courts through the 19th and 20th centuries. A narrower duty is favoured by Ireland’s Supreme

Court. This article will argue that a narrower duty is more appropriate in the world of today where – unlike

the world in which Carter v Boehm, and later related cases of the 19th and early-20th centuries, fell to be

decided – means of communication have been revolutionised by the technological advances of the late-20th and

early-21st centuries, such that insurers now generally have the means to acquire readily a great deal of the

information that they need to know concerning a proposed policy. The article also briefly considers the changes

made to the duty of disclosure in the consumer-law context by the Consumer Insurance Contracts Act 2019.

Author: Mr Justice Max Barrett, Judge of the High Court

Introduction

Insurance contracts are the classic example of a form of contract to which a duty of

disclosure applies. Most textbooks point the reader to the judgment of Lord Mansfield in

Carter v Boehm

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as the case in which this duty was established. But while Carter v Boehm is

perhaps the case in which a justification for that duty has long been described best, it is not

correct to state that Carter v Boehm was the case in which the form of that duty, certainly as

applied by the courts of England and Wales throughout much of the 19th and 20th centuries,

was established. This article looks at the legal and practical significance of Carter v Boehm and

the evolution of the duty of disclosure in the quarter-millennium since that case was decided.

More particularly, it considers:

(i) the factual background of Carter v Boehm, a case with a fascinating imperial factual

matrix;

(ii) (briefly) the career of Lord Mansfield, a man with a good claim to having founded

modern British commercial law, and thus to having shaped commercial law throughout

the countries of the former British Empire;

(iii) the ratio and reasoning of Lord Mansfield’s decision in Carter v Boehm;

(iv) how Lord Mansfield’s duty not to deliberately conceal evolved in later English case-

law into an active duty of disclosure, a process which reached its apogee in the early-

20th century, as compounded/reflected in part in the Insurance Act 1906;

(v) the more nuanced, and arguably more correct, interpretation of Carter v Boehm by the

courts of the United States;

(vi) the interesting dichotomy of decisions by the Irish Supreme Court since the 1980s,

with the more recent decisions of that court pointing to a retreat from a wide duty of

disclosure to something more akin to the duty identified in Carter v Boehm;

(vii) how statutory developments/proposals in the United Kingdom/Ireland appear to be

running ahead of case-law in terms of ameliorating the duty of disclosure in certain

contexts; and

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(1766) 97 ER 1162.