Late notification blocks compensation: Makin v Protec & QBE [2025]

The recently reported High Court personal injury case of ‘Makin’ has highlighted some important lessons for all parties around use of the Third Parties (Rights Against Insurers) Act 2010.  In summary, even where a Claimant is injured and blameless, they could still be left without compensation if the conditions of an insurance policy are not met by the policyholder.

Here the Claimant was left seriously injured after being ejected from the Muse Bar and Restaurant by door supervisors employed by Protec on 6 August 2017.

The Claimant subsequently brought a personal injury claim and, whilst the claim was initially defended, Protec appointed liquidators the day before trial and weren’t in attendance. The trial went ahead with the Court finding Protec to be vicariously liable for the actions of the door supervisors and causation was established.

QBE were the Public Liability insurers for Protec.  Due to Protec’s liquidation, they were joined to proceedings, as, in accordance with s.1  Third Party (Rights against Insurers) Act 2010, Protec had incurred a “liability against which that person is insured under a contract of insurance”.

The problem, however, was that Protec had not notified their Insurer of the claim until July 2020, despite receipt of the Letter of Claim in October 2019.  This was a breach of the specific policy requirements to notify the insurer promptly.  After some argument it was found that this was a “condition precedent” to any payout under the policy and accordingly QBE were entitled, as of right, to refuse to indemnify Protec and therefore there was no obligation to compensate the Claimant.

In conclusion, the Claimant’s claim against the Insurer failed.

Forbes comment:

• It is an important reminder for insurers that there are very strong policy reasons as to why claims notification should be a condition precedent to liability under its policy of insurance.

• When a claim is redirected under the Third Parties (Rights Against Insurers) Act 2010, Insurer need to ensure all policy conditions have been met before agreeing to indemnify.

• It is understood that permission to appeal has been granted over the finding that the notification provisions were in fact conditions precedent and it is therefore important to ensure that any such conditions are properly drafted and avoid any ambiguity.

• For Insureds – ensure you comply with any notification conditions contained within your policy!