In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even if the employer was not insured throughout the period of employment. The seven Justices unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching that result, the majority recognised that the insurers were entitled to ‘equitable recoupment’ from insured-employers in respect of periods during which they were uninsured. This note critiques the recoupment right with an unjust enrichment lens.
KV Krishnaprasad, Unjust Enrichment in the ‘Fairchild Enclave’: International Energy Group Ltd v Zurich Insurance plc, Modern Law Review, Volume 80, Issue 6, November 2017, Pages 1150–1163.