Carter V Boehm Considered

AuthorMax Barrett
PositionJudge of the High Court
Pages92-106
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
1
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
1
(1766) 97 ER 1162.

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