ICOBS 2.5 Exclusion of liability, conditions, warranties, and reliance on others 1

Exclusion of liability and conditions

ICOBS 2.5.1R
1
  1. (1)

    A firm must not seek to exclude or restrict, or rely on any exclusion or restriction of, any duty or liability it may have to a customer or other policyholder unless it is reasonable for it to do so and the duty or liability arises other than under the regulatory system.1

  2. (2)

    A Solvency II firm must ensure that general and special policy conditions do not include any conditions intended to meet, in an individual case, the particular circumstances of the risk to be covered.1

    [Note: article 187 of the Solvency II Directive]1

ICOBS 2.5.2G

The general law, including the Unfair Terms Regulations (for contracts entered into before 1 October 2015) and the CRA, 2also limits the scope for a firm to exclude or restrict any duty or liability to a consumer.

Conditions and warranties in policies

ICOBS 2.5.2AR

3An insurer must ensure that any condition or warranty included in a policy with a consumer:

  1. (1)

    has operative effect only in relation to the types of crystallised risk covered by the policy that are connected to that condition or warranty; and

  2. (2)

    (for a warranty in a pure protection contract) is material to the risks to which it relates and is drawn to the customer’s attention before the conclusion of the contract.

ICOBS 2.5.2BR

3ICOBS 2.5.2AR(2) does not apply to a ‘life of another’ contract where the warranty relates to a statement of fact concerning the life to be assured.

ICOBS 2.5.2CG

3An insurer may choose to draft its conditions and warranties so that they clearly state the particular types of crystallised risks covered by the policy to which they are connected, for the purposes of ICOBS 2.5.2AR(1). Alternatively the insurer may in practice have systems and controls which operate the conditions and warranties in a way that has the same effect.

Reliance on others

ICOBS 2.5.3G
  1. (1)

    Where it is compatible with the nature of the obligation imposed by a particular rule and with the Principles, in particular Principles 1 (Integrity), 2 (Skill, care and diligence) and 3 (Management and control), firms may rely on third parties in order to comply with the rules in this sourcebook.

  2. (2)

    For example, where a rule requires a firm to take reasonable steps to achieve an outcome, it will generally be reasonable for a firm to rely on information provided to it in writing by an unconnected authorised person or a professional firm, unless it is aware or ought reasonably to be aware of any fact that would give reasonable grounds to question the accuracy of that information. However, a firm cannot delegate its responsibility under the regulatory system. For example, where a rule imposes an absolute obligation (such as the requirement for an insurer to handle claims promptly and fairly) although a firm could use outsourcing arrangements to fulfil its obligation, it retains regulatory responsibility for achieving the outcome required.