Makin v Protec Security Group: Court of Appeal upholds insurer’s refusal of cover

The Court of Appeal has dismissed Daniel Makin’s appeal against a ruling that QBE Insurance (Europe) Limited was not liable to indemnify security company Protec Security Group Limited, after Protec failed to comply with policy notification requirements.

In Daniel Makin v Protec Security Group Limited [2026] EWCA Civ 1367, the court held that the policy’s claims notification conditions operated as conditions precedent to liability, despite not being expressly labelled as such. The decision also clarifies when an insured’s obligation to notify insurers arises where relevant knowledge is acquired after an incident.

The claim arose from an incident outside the Muse Bar and Restaurant in Oldham on 6 August 2017. Mr Makin was ejected by two door supervisors engaged by Protec. During an altercation, one supervisor forced him to the ground and held him in a headlock. Mr Makin walked away afterwards but suffered a stroke two days later, leaving him with serious neurological difficulties.

In July 2023, following a preliminary issue hearing, the court found that the stroke and resulting injuries had been caused by an assault by the door supervisor and entered judgement against Protec, with damages to be assessed. Protec had entered liquidation earlier that month. Mr Makin subsequently pursued QBE under the Third Parties (Rights Against Insurers) Act 2010.

QBE declined cover on the basis that Protec had failed to notify it of the incident and subsequent correspondence within the timescales required by the policy. The High Court accepted that Claims Conditions 2 and 3.5 had been breached and that those breaches entitled QBE to refuse indemnity. Mr Makin appealed.

The Court of Appeal rejected the challenge to the finding that Claims Condition 3.5 had been breached. The condition required notification as soon as practicable and, in any event, within 30 days of an incident that might give rise to a claim. Although the High Court had found that no reasonable insured would necessarily have anticipated a claim immediately after the incident, Protec’s director acquired relevant knowledge within the 30-day period, including that police wished to interview members of staff about an incident involving alleged injury.

Lord Justice Stuart-Smith held that the condition did not impose a continuing duty to reassess every incident. However, if the insured acquired sufficient knowledge within the specified 30 days to recognise a real, rather than fanciful, risk of a claim, the notification obligation was triggered. The court distinguished Zurich Insurance plc v Maccaferri Ltd, where the relevant policy wording lacked the same fixed time limit.

The court also upheld the finding that Protec breached Claims Condition 2 by failing to forward relevant correspondence immediately and unanswered. Despite the condition’s poor drafting, its meaning was clear when read as a whole: documents connected with an incident had to be forwarded if they related to an existing policy claim or indicated that a claim might arise.

The court further rejected the argument that the wording, which stated that breach would “entitle” QBE to refuse to deal with a claim, created a contractual discretion that had to be exercised rationally. The wording gave the insurer an entitlement to refuse cover, and no additional term restricting that entitlement was necessary. The conditions therefore operated as conditions precedent, without any requirement for QBE to demonstrate prejudice caused by the breaches.

The court did not determine a separate issue concerning the effect of the earlier liability finding under the 2010 Act, leaving that question for a case in which it must be decided.

Lady Justice King and Lady Justice Cockerill agreed with Lord Justice Stuart-Smith. The appeal was dismissed.