Date: Thu, 17 Aug 2006 16:01:07 +0100

From: Robert Stevens

Subject: Trident General Insurance v McNiece

(1) You might try Reynolds' note (1989) 105 L.Q.R. 1.

(2) Trident was an odd case. An insurer, like a bookmaker, would not stay long in business admitting that a sum is due but refusing to pay on the basis that they cannot be compelled to do so by the payee. Even if an insurer did refuse to pay, the promisee/insured would be able to compel payment to the third party payee through an order for specific performance (see Brennan J p 138-139).

The real source of the dispute in Trident was whether the claimant was one of the parties insured at all. The privity rule was then invoked as a fall back but wasn't what the initial/real argument was about.

As to what Trident's ratio is, that is obscure.

My own view, is that the result would have been unimpeachable if the promisee had been before the court. It is sometimes said that it is unacceptable to leave the third party at the mercy of the choice of the promisee as to whether to obtain a remedy on his behalf, if the third party has no right under a contract or trust to compel the promisee to do so. My view is that this is just tough luck on the third party (see Brennan J at p 140).

Robert Stevens
Barrister
University of Oxford

Jason Neyers writes:

Dear Colleagues:

Two questions:

1) Does anyone know of any appellate judicial discussion, or academic commentary, which tries to make sense of the decision of Trident General Insurance v McNiece? I have checked one Aussie textbook on contract but there did not seem to be much discussion of subsequent developments.

2) Does anyone have an opinion as to the best juridical understanding of the Trident case?

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