Condition Subsequent in UK Law

I agree with Mr. Pollock that is important to keep promissory and contingent conditions separate but in my opinion there is a common factor. If the provision in an agreement is of fundamental importance then the result either of a failure to perform it (if it is promissory) or of the event not happening or the act not being done (if it is a contingent condition or a condition precedent or a condition subsequent) may be that the contract either never comes into being or terminates.

But when I say potentially liable, there is a sharp distinction between steps required to enforce a valid claim under a policy in force at the time of the loss, and a claim which never was valid, and never could be enforced. Thus if B has a good defence to the assured's claim on the basis of misrepresentation or non-disclosure, there is no double insurance. Since the effect of the defence is that the contract is avoided ab initio, it is as if B had never been on risk at all.

My Lords, it is, in my view, most consistent with the achievement of the purpose of the 1971 Act that the time at which to ascertain whether a choice of forum clause will have an effect that is proscribed by Article III rule 8 should be when the condition subsequent is fulfilled and the carrier seeks to bring the clause into operation and to rely upon it.

If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was.

The determination by a Court of competent jurisdiction of the existence or non-existence of a fact, the existence of which is not of itself a condition the fulfilment of which is necessary to the cause of action which is being litigated before that Court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatam either party in subsequent litigation from asserting the existence or nonexistence of the same fact contrary to the determination of the first Court.

It is this uncertainty of degree which prevents the divesting event from being seen precisely and distinctly from the beginning, and which makes this condition void for uncertainty. The uncertainty attaching to the requirement of Jewish parentage avoids the whole condition subsequent, with the result that no defeasance takes place.

Mr Buley's submissions assume that the only conditions subject to which planning permission has been granted are those imposed at the same time as the grant of that permission. The fact that a condition subject to which a subsequent required approval was given was not imposed when the permission was granted does not mean in my judgment, however, that the permission has not been granted subject to it as a result of that conditional approval.