To see the lengths to which this goes, you might like to contemplate Bristol & West Building Society v May, May & Merrimans (No.2) [1998] 1 W.L.R. 336. A mortgage lender who lent against overvalued security which was sold for less than the mortgage debt succeeded against the valuer, despite having recovered under a mortgage indemnity policy, and despite the insurers having paid the lender under a settlement expressly excluding subrogation. Nice work if you can get it: a bank laughing all the way to itself.

Andrew

Hi Matt

As a matter of Irish law, the answer is that it should make no
difference as a matter of principle.  Whether a party is insured or
has received a pay out under an insurance policy, so that the claim is
being pursued by insurers should not be relevant to quantum.

In practice, the Court always knows if the claim is being pursued for
or on behalf of insurers.

Kind regards

Ger

On 6/20/18, Harrington Matthew P. <matthew.p.harrington@umontreal.ca> wrote:

This might sound like a rather naïve question, but I hope colleagues will
bear with me if it is:

I am looking into the problem of subrogation and compensating advantage.
Specifically, I`m wondering if --- at the damages phase --- it would be
appropriate for a court to enquire as to whether (1) there is insurance, (2)
whether the insurers have paid out prior to trial, and (3) whether the
insurers have a right of subrogation.

I`m not assuming any complicated set of facts.  Simple tort or contract
claim.  Liability is admitted or determined.

I’d appreciate any thoughts on this. And, as I say, if this is an elementary
question the answer to which I ought to know already, I hope you`ll excuse
my ignorance.

Kind regards.

Matt



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Matthew P Harrington
Professeur
Faculté de droit
Université de Montréal
3101 chemin de la Tour
Montréal, Québec H3T 1J7
514.343.6105
www.commonlaw.umontreal.ca
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