Proportionality, fair presentation of the risk & the hypothetical bargain: The Law Commission’s remaking of commercial insurance law

The Law Commission has a growing role in the design of English private law, with its ability to fast-track Bills through Parliament. This makes its vision for consumer and commercial markets of considerable significance. This article considers the recent use of these powers in creating a series of proportionate remedies for breach of pre-contractual duties in insurance contract law. The Insurance Act 2015, which provides the case study for this piece, requires the judiciary to imagine the bargain that the parties would have made, were it not for the breach. This requires the sophisticated issue of counter-factual analysis, a technique often used but poorly understood within much of private law theory. The 2015 Act provides a timely case study for lawmakers in general on the risks of trying to do too much with too little information.