‘Makin’ an insurer pay? It’s a matter of interpretation

Makin v Protec & QBE [2025] EWHC 895 (KB); Burnett v International Insurance Company of Hanover Ltd [2021] UKSC 12

Two cases, both alike in dignity. But with very different results. And all a matter of interpretation.

The factual circumstances of Makin and Burnett are remarkably similar. These court actions arise from unconnected incidents – one in Scotland, the other in England – in which a patron was ejected from a bar by door stewards and sustained injury. In Burnett, the injuries were fatal; in Makin, the injuries led to a stroke and subsequent serious neurological disability.

In both actions, claims for damages were initially raised against the operators of the respective bars involved, along with the security companies who employed the door stewards. In each case, the claims against the respective bar owners were discontinued (or “abandoned” in Scottish parlance). The respective security companies both ultimately ended up in liquidation and either did not enter appearance (Burnett) or failed to attend trial (Makin).

Against that background, the claimant/pursuer in each case convened the insurers of each security company as additional defenders to their respective actions pursuant to the Third Parties (Rights Against Insurers) Act 2010. This Act allows a third party to directly pursue a claim against an insurer when the insured becomes insolvent and owes the third party a sum of money which is covered by the policy.

But this is where the scenarios diverge.

In Burnett, the case turned on the interpretation of an exclusion clause within the insurer’s policy. The clause excluded liability arising out of “deliberate acts” of an employee. The insurer concerned sought to rely upon that clause and refused to indemnify the claim. Their position was that the actions of the security guard, who was found guilty of assault, but not guilty of murder following a ‘badly executed, [but] not badly motivated” restraint, fell within the ‘deliberate acts’ exclusion of their policy. However, the Outer House of the Court of Session disagreed with the insurer’s interpretation, as did the Inner House (on appeal), and indeed the Supreme Court. The Supreme Court found that the exclusion clause covered acts that were intended to cause injury, not acts that were recklessly performed. In the circumstances, the Burnett claim succeeded, and the insurers required to indemnify the claim.

However, in Makin, the decision turned on a breach of the insurer’s policy conditions. Under the terms of their policy, the policyholder was required to notify the insurer “as soon as practical but in any event within thirty (30) days in the case of damage, bodily injury, incident, accident or occurrence, that may give rise to a claim”. And herein lies the rub; despite having received the letter of claim in October 2019, the security company in Makin did not notify the insurers until July 2020, thus in apparent breach.

The High Court issued its decision in Makin in May 2025 and ultimately found that the breach was a ‘condition precedent’ to any payout under the policy and that in these circumstances, the insurers were entitled to refuse indemnity and were under no obligation to compensate the claimant. The Court accepted a submission by the insurer’s KC that, whilst they had considerable sympathy for the injured claimant, that cannot itself mean that he had a good legal case.

It is understood that permission to appeal has been granted in Makin and as such, whether the decision will stand remains to be seen. For now, the decision serves as an important reminder that insurers should satisfy themselves that their policy conditions have been satisfied before agreeing to indemnify a claim.