“The principle or doctrine of incorporation by reference is one that is frequently applied in the construction of documents, including contracts of insurance where from the documents which were produced by both parties it was clear that some other evidence must have been in the contemplation of the parties. In such cases the principle is that the documents put forward compel the Court to look beyond them and ascertain precisely the other evidence which by necessary implication the parties must have had in their minds at the time of the contract. In Wyndham Rather Ltd. v. Eagle, Star & British Dominion Insurance Co. Ltd. [1925] Ll.L.R. 214 the point came up for decision as to whether the assured was bound by an arbitration clause appearing in an insurance policy which it was found had not been issued or delivered to him. In that case, the assured had paid the necessary premium and had been issued with a cover note on which a reference was made to the policy. Delivering the judgement of the Court of Appeal in the case, Atkin, L.J. (as he then was) observed:- “This is a case which is undoubtedly not very easy to decide, but I think that in the circumstances, the view taken by the Judge was right. We have not to consider the question of whether or not the insurance company are liable on some contract of insurance. The only question we have to determine is whether, on the contract of insurance, there was a submission to arbitration”. In the course of his judgment in the same case Sargant, L. J. stated:- “I am of the same opinion. The slip contains a clear reference to the proposal form, and the proposal form contains a clear incorporation of the usual conditions of the company’s policy. Looking at it from the broad business point of view, it appears that just as Mr. Justice Mathew held that a slip must be deemed to constitute a contract, and that it could not be properly held that the assured was left unprotected in the interval between the slip and the preparation of the policy, so in a case of this kind it cannot be properly supposed that the insurers are giving the assured in that interval a protection upon greater or other conditions than those which are to be embodied in the ultimate policy”. Wyndham’s case clearly shows that the doctrine of incorporation by reference is employed in the construction of insurance contracts but it must be conceded that the law is not at rest in this area and there is a welter of authorities which are not easy to reconcile and/in which the divergences in the opinions or dicta of judges have helped considerably to make confusion worse confounded. See Macleod Ross & Co. Ltd. v. Compagnie d’ Assurances, etc. [1952] 1 All. E. R. 331; Koskas v. Standard Marine Insurance Co. Ltd. (1927) 137 L. T. R. 165; Thomson v. Weems (1884) A. C. 671; Izzard v. Universal Insurance Co. [1937] A. C. 773; Wheelton v. Hardisty (1857) 8 E.1. & B.I. 232; Heath & Ors. v. Durant (1844) 12 M. & W. 438.”
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