DRAFT
PARTICULARS OF CLAIM
AGAINST MY BUILDING INSURERS
i. The Defendant
building insurers knew from Sept 2005 that the third party commercial
leaseholder to their insured was suffering material damage to two of her
commercial premises. Both of her premises were insured for material damage with
her landlords building insurance policy taken out for her benefit and for which
she had paid a premium, making her a ‘noted interest’ on the building insurance
policy, as seen in her two leases. The defendant building insurers breached
their expressed ‘duty’ or ‘promise’ to make her, who was the beneficiary of
the policy, ‘held harmless’ by repair or reinstatement of her premises.
ii. Further the defendant
building insurers by refusing to settle the valid claim therefore failed to enable
the insured landlord policyholder, to comply with the legalities of the
claimants leases, in Para 7 thereof: - “… in the event of damage to the demised
premises by any of the insured risks (the policy holder) is obliged with all
convenient speed to lay out and apply in rebuilding repairing or otherwise
reinstating the demised premises all monies received by virtue of such
insurance.” by a protracted avoidance of the disrepair claims for material
damage, leaving the disrepair to continue.
iii. Under the (third party
to the building insurance) commercial leases, the landlord was obliged to
effect claims on their building insurance policy promptly wherever they had
cover. They instigated this in Sept 2005 in respect of a number of disrepairs
dated from 2003/4/5 that the third party claimants had either had to fix
themselves by paying for their own emergency contractors and/or in some cases
the landlord had fixed repairs themselves too. The landlord’s building insurers
that the landlord had claimed for in the 2005 property claim form reimbursed an
amount of just over £3,000 to the third party claimants. Since the structure
was insured by the landlord there was some ‘property owner liability’ claims by
the third party which were left outstanding by the insurer, as well as two
major structural repairs, that neither the landlord nor the third party could
afford to pay for. This amounted to professional negligence as the repairs in
both commercial premises rendered both businesses unable to trade from and with
commercial rents and running costs still having to be paid, the delays amounted
to undue stress and could not been seen in insurance law as a ‘duty of good
faith’ a ‘promise’ or any other kind of ‘duty’ to hold the insured or their
third party ‘harmless’ nor did the insurers actions prevent further loss
occurring in a commercial reality for a medium income small business.
iv. The insurers then acted
in ‘bad faith’ instead ensuing a protracted avoidance of the valid claims and
this prevented further action being taken promptly in respect of risks covered
for in the building insurance policy. The commercial consequences of the
insurers actions could only lead to the third party being continuously
penalised financially and this was not only foreseeable but as it was no matter
how many times there was an opportunity to mitigate the claimants continued
losses in terms of rising interest, reimbursement, reinstatement or repair the
insurers failed to do so until they arbitrarily set the landlord up against the
tenant to fight out an unnecessary liability claim where the Court of Appeal in
2013 would eventually state both parties were insured so neither was liable for
repair, in a waste of time, effort and extraordinary costs to themselves and for
what?
v. The Defendants building
insurers continued to act in ‘bad faith’ by paying for the legal costs of one
side of a situation that they caused and/or permitted to continue a dispute
between the landlord and tenant that would lead to years of court proceedings
and they failed to take any sensible and necessary steps to stop, prevent or remedy
the situation. This we were made aware was a commercial decision based on
larger liabilities than the third party claimants alone, potentially leading to
floodgate litigation cases regarding the law of a precedent. They acted in ‘bad
faith’ putting their commercial interests first in a conflict of interest.
vi. The Defendant building
insurers were made aware from the start of the claim in 2005 of the good work
of the third party building insurance claimant and therefore the morally
principled urgency to settle the claims expediently so as not to have a
detrimental effect on such important work, as well as the nature of the
claimants entrepreneurial youth parliament aims, in this commercial social
enterprise associated with the prevention of child abuse which later on during
protracted court proceedings became subject to a police criminal investigation
which became widely publically known as Operation Fernbridge, formerly
Operation Fairbank to which the claimant had been central to and that she had
set up both premises and further, the types of corporate clients she was
attracting and the value of such business. Further, they were made aware of all
other continuing problems occurring as soon as they arose. This however did not
prevent delays in settlement and presents a similar case that had the correct
credentials to overturn the much renowned case of Sprung V Royal Insurances
where there is no damages for delays in paying of a valid claim in England as
opposed to Germany, Italy, United States and Canada, China and even Scotland
and is said to be a much needed law change in England. Some delays as in this
case have dyer consequences.
vii. The defendant building
insurers were negligent in that they delayed in instigating repairs and/or
replacements causing ongoing and increased damage and/or loss of business and
of business opportunity.
viii. They were further
negligent in failing to replace the damaged floor in one of the third party
commercial premises after a flood from the insured landlords property, when it
was foreseeable that if they did not this would cause interruption to business.
ix. They were further
negligent in failing to repair the structure in one of the third party
commercial premises, when it was foreseeable that if they did not this would
make the business illegal to trade from as it had no air.
By reason of all the
aforesaid the Claimant has suffered loss and damage, loss of reputation and
goodwill, distress, depression, stress and inconvenience AND the Claimant claims:
-
1. Damages (Schedule of Loss
to follow)
2. Exemplary damages
3. Further or alternatively,
re-payment of rent paid at £47,994 plus interest during the periods the Claimant was unable in
part or in full to use the premises
4. Interest pursuant to
Section 35A of the Supreme Court Act 1981
5. Costs
6. Any other remedy the
Court deems fit
Final Response letter from UK Underwriters
UK
UNDERWRITING
Jo Gavin and Chantal Cracy 104 & 106-108 Cromer Street London WC1H8BZ
8'h August 2006
Dear Madam
Insured - Community Housing Association
I
have now had an opportunity to review this claim and, after careful
consideration of all the information available to me, can now offer UK
Underwriting Ltd's response in this matter.
Complaint
You
have submitted a number of claims in respect of incidents relating to water
damage that have occurred between April
2004 and October 2005. Your claim is based upon loss of business/earnings and what you refer to as Capital losses which
you define as Rent, Business rates,
Running Costs,etc. My understanding is that your current claim stands at £445,025 as defined by you below:-
"Total
amount claimed for in the case for liability against CHA and the insurance:
CHA:£280,450
We rented property from
CHA, with the usual landlord's
covenants, those were
breached.
lnsurance:£164,575
We were
covered on 'all risk' in regards to water damage."
In
respect of the first section of your claim for £280,450 it is my understanding
that you are
claiming against CHA who you deem to be responsible for these losses due to
their failure to
ensure repairs were in place in a timely manner.
With
regard to the second section of your claim for £164,575 it is my understanding that you are claiming against
Insurers both under the terms of the policy as you consider it provides cover in this
regard and directly against Insurers as a result of their 'excessive delays in the handling of the
claim'.
UK Underwriting Limited
2 Gibraltar House Bowcliffe Road Off Gibraltar Island Road Leeds LSI0 1MB
T 0870 421 4503 F 0870 421 4504
Member of the Primary Group
Registered Address: 10 King William Street London
EC4N 7TW
Registered No. 4506493
UK Underwriting Limited are
authorised and regulated by the Financial Services Author*
UK
UNDERWRITING
Circumstances
In
April 2004 you obtained a lease to the premises known as 106-108 and 104 Cromer
Street. The premises are owned by
the Insured Community Housing Association (CHA).
A
number of incidents occurred from this time which resulted in damage to the property. Under the terms of
the lease you are required to contribute towards the premium for cover against material damage to the
Buildings and Landlords fixtures and fittings and the policy taken out by CHA has responded in
dealing with the damage to the buildings.
You
are however continuing to pursue a claim as above on the basis that you believe
that it provides cover for the items claimed for. In addition you wish to
pursue CHA for the
amount as detailed above.
Conclusion
The
first section of your claim appears to be against CHA and from examining the
file I understand that it is your view that your losses are as a result of the
failure of CHA's personnel
to diligently discharge their duties and responsibilities. You will need to demonstrate this and provide
evidence in this regard and CHA may then wish to inform their Public Liability
Insurers. However there is no cover under the policy with UK Underwriting Ltd and there is
nothing further that I or my colleagues can do to assist in that regard.
With
regard to the second section of the claim which is against Insurers, I
understand that this includes both
losses under the terms of the policy and losses due to the alleged delays in handling the claim. I will deal with each
of these items in turn:-
Losses claimed under the policy - the policy does
not provide cover in respect
any loss of
business or increased costs that you might incur. It does provide
cover in
respect of damage to the building and payment has already been made
in this regard. The losses you
are claiming for are simply not covered.
Losses due to alleged delay - with regard to losses that
have been incurred due
to the
excessive delays in handling the claim you will need to provide evidence
that you
have suffered losses that are directly attributable to another party and
specify who
that party is. The party concerned will then have to address the
matter as
they deem appropriate but possibly through their own Insurers. There
is, however,
no cover under the policy with UK Underwriting Ltd for such losses
and there is
nothing further that I or my colleagues can do to assist in that
regard.
I must
therefore advise that UK Underwriting are unable to assist you further with
your claim for the reasons specified
above and this is their Final Decision letter.
UK Underwriting Limited
2 Gibraltar House Bowcliffe Road Off Gibraltar Island Road Leeds LS10 1MB
T 0870 421 4503 F 0870 421
4504
Member of the Primary Group
Registered Address: 10 King William Street London
EC4N 7TW
Registered No. 4506493
UK Underwriting Limited are
authorised and regulated by the Financial Services Author*
UK
UNDERWRITING
I realise that you may be
disappointed with this decision, nevertheless I hope that I have been able to adequately explain the position of UK
Underwriting Ltd. In the event that you
still remain unsatisfied you may contact the Financial Ombudsman Service as you
have previously referred to. I have enclosed a copy of their leaflet for
information.
I
would however urge you to first take proper legal advice in order to obtain an independent view of your
position as I do consider you would benefit from such advice.
Yours sincerely
David Gillan
Head of Claims
UK Underwriting Limited
UK Underwriting Limited
2 Gibraltar House Bowcliffe Road Off Gibraltar Island Road Leeds LS10 1MB
T 0870 421 4503
F 0870 421 4504
Member of the Primary Group
Registered Address: 10 King William Street London
EC4N 7TW
Registered No. 4506493
UK Underwriting Limited are authorised and regulated by
the Financial Services Author*
Letter written 10 days ago
Dear UK
Underwriters, 5th
May 2016
In the
case of Gavin & Anr v Community Housing Association
Your company trading as UK Underwriters building insurers, held at all times in
2005 when my landlord made a claim, ‘that the landlord breached the terms of
the insurance by failing to repair’.
However it
was proved at the Court of Appeal 2013 8 yrs later that the landlord held no
liability to repair and that the building was insured for repair at all times,
for parties and contractual benefit of the landlord and the tenant, as seen in
my two leases for 104 and 106-108 Cromer Street, London WC1.
Your
position led you to not paying for damage to the structure, eventually put me
out of business, affecting my 3rd party rights to have the buildings repaired
and to trade from them.
I have a
forensic accountants report from Smith and Williamson on the losses.
I therefore
consider this to now be a personal injuries case and an act of professional
negligence.
As insurers
to my landlord at the time of the claim you were sacked by them once you
refused to pay us, as you were blaming the landlord for breaching the policy
and not mitigating the losses by repairing on time.
However you
then went on to defend the landlord against their ‘liability’ to repair, backing
the landlord in legal costs and setting us up against one another. This is
because neither of you wanted to pay us so your decision was to turn on me the
tenant. Therefore UK Underwriters in effect not only failed me in terms of
repairs but also proceeded to defend a liability claim alongside the landlord
when you said the landlord was at fault. That I consider is vexatious position
causing injury to my good work and myself.
I have
tirelessly tried to get compensation for my losses inside and outside of court
and I can show you this in the following two letters as well as the fact I have
kept the issue as public as I can.
If I do not
hear from you within 10 days I will be serving you with particulars of claim
and lodging them with the Supreme Court to enforce to my legal claim from the
Court of Appeal and for damages.
Kind
Regards
Ms Jo
Flores
Nee: Gavin
1
Damages for late payment and the…
insurers duty of good faith…
SUMMARY
S.1 In this Issues Paper we consider whether a policyholder should be entitled to
damages where the insurer has refused to pay a valid insurance claim, or has
paid only after considerable delay. In England and Wales, a policyholder who has
not been paid a valid claim is entitled to sue the insurer for the money owed, plus
interest. However, the policyholder is not entitled to damages for any further loss
suffered through the delay in receiving the money.
S.2 This has proved controversial. By contrast, in Scotland (and in most other
common law jurisdictions) damages are payable, provided that the loss is
considered foreseeable at the time the contract is made.
S.3 This Issues Paper sets out our preliminary thinking. Its purpose is to promote
discussion before we formulate our proposals. We seek responses by 24 June
2010, to the address on page 1 of the full paper.
S.4 Here we focus on the insurer’s obligations. Later this year we plan to publish a
further issues paper, looking at the insured’s duty to act in good faith after an
insurance contract has been formed.
THE DECISION IN SPRUNG
S.5 The English case of Sprung v Royal Insurance (UK) Ltd illustrates the problems.1
Mr Sprung bought an insurance policy to protect his factory against “sudden and
unforeseen damage”. In April 1986, vandals broke into the factory and caused
considerable damage. Mr Sprung’s insurers rejected his subsequent claim. In
difficult trading conditions, Mr Sprung lacked the financial resources to carry out
repairs himself and he was not able to raise a loan. Six months later Mr Sprung
was out of business.
S.6 Mr Sprung started proceedings against his insurers. Four years later, in March
1990, the insurers abandoned their defence and Mr Sprung was awarded an
indemnity for his damaged property, plus simple interest and costs. The judge
found that the claim should have been paid by 31 October 1986. As it had not, Mr
Sprung had suffered an uninsured loss of £75,000 for the lost opportunity to sell
his business. However, the Court of Appeal held that Mr Sprung was not entitled
to claim this further loss, as it was not a claim recognised in law.
Sprung compared to ordinary contract law principles
S.7 In Part 2, we argue that the decision in Sprung is out of line with the principles of
ordinary contract law.
1 [1999] 1 Lloyd’s Rep IR 111; [1997] CLC 70.
2
S.8 The general rule in England is that if one party breaks a contract, the other party
may claim damages for the actual loss suffered, provided that it was foreseeable
at the time the contract was made. This is subject to three main limitations:
(1) The victim of the breach of contract must prove actual financial loss;
(2) The victim must take reasonable steps to mitigate the loss;
(3) The level of damages may be limited (or expanded) by the express
provisions of the contract.
S.9 In 1854, in Hadley v Baxendale,2 the House of Lords defined which losses are
“foreseeable” in contract law. There are two kinds:
(1) Those which may fairly and reasonably be considered as arising
naturally, that is “according to the normal course of things”; and
(2) Those arising from any special circumstances which were communicated
at the time the contract was made.
S.10 At one stage, it was suggested that damages were not necessarily payable for
breach of an obligation to pay. It was also suggested that damages were not
payable to claimants who failed to mitigate their losses because (like Mr Sprung)
they lacked the financial means to do so. However, the law in these areas has
now changed. Sprung is left looking increasingly isolated and anomalous.
Why insurance is an exception
S.11 The English courts have held that insurance is an exception to the rule that the
party breaking a contract should pay damages for foreseeable losses. This is
based on the fiction that an insurer’s primary obligation is to “hold the insured
harmless”. In other words, the insurer is said to promise that the loss will not
occur. If it does, the insurer is then liable to pay the amount of the claim as
damages. Thus an insurance payment is not a primary obligation to pay money,
but a secondary obligation to pay damages. It is said that English law does not
recognise an obligation to pay damages for a failure to pay damages.
S.12 An insurance contract is treated as analogous to a contract with a security firm, in
which the security firm undertakes to prevent a break-in. However, if the security
firm broke its promise, the courts would look at all foreseeable loss including,
possibly, the effects of business interruption. Insurance law goes one step
further. Insurance is treated as if the contract with the security firm had included a
clause to limit any damages for breach to a specified amount. In these
hypothetical circumstances, if the security firm paid the agreed damages late, the
law would respect the parties’ agreement to limit damages. It would not award the
property owner additional damages for the loss caused by the late payment of the
agreed damages.
2 (1854) 9 Exch 341.
3
S.13 The English courts are also reluctant to find that insurance policies contain terms,
whether express or implied, requiring insurers to assess and pay claims
expeditiously. This contrasts with the position in Scotland and other common law
jurisdictions.
Conclusion on Sprung
S.14 In Part 2 we argue that the “hold harmless” analysis is a complex and unrealistic
way to characterise an insurance contract. Unlike a security firm, an insurer is in
no position to prevent a loss. Buying insurance does not make a fire, flood or
theft less likely. Instead, policyholders buy a promise that if something does go
wrong, the insurer will provide the payment specified in the contract. There is
nothing in most indemnity contracts to suggest that the parties have put their
minds to what the position would be if the insurers failed to make the expected
payment, or to limit damages in those circumstances.
S.15 We tentatively conclude that the insurer’s primary obligation should be to pay
valid claims. If the insurer fails in this obligation, then normal contract principles
should apply.
DAMAGES FOR LATE PAYMENT IN SCOTS LAW
S.16 The Scottish courts do not follow the English approach. In Part 3, we explain that
Scots law applies ordinary contract principles. An insurance claim is not
considered to be damages for breach of the obligation to hold the insured
harmless. Instead, the insurer has an obligation to pay a valid claim once it has
had an opportunity to investigate its soundness. This was made clear by Lord
Eassie in the case of Strachan v The Scottish Boatowners’ Mutual Insurance
Association.3
S.17 There are then two ways in which the insurer may breach its contractual
obligation: by unjustifiable delay in payment or by wrongful repudiation of a claim.
Where the insurer does breach the contract, it may be liable for losses which the
insured has suffered and which fall within the rule in Hadley v Baxendale.
AN INSURER’S DUTY TO ACT IN GOOD FAITH
S.18 It is well-established under both English and Scots law that insurance contracts
are based on mutual “good faith”. In Part 4 we consider how far an insurer’s
unjustified delay or unreasonable refusal to pay a claim may be a breach of its
duty of good faith. Although most cases on good faith are concerned with the
insured’s duties rather than the insurer’s, there are tentative suggestions in the
case law that insurers should make enquiries, not act arbitrarily and not take into
account extraneous circumstances.
S.19 The problem with the duty of good faith in insurance contracts is that only one
remedy is available for breach: avoidance. This means that the contract is
declared void from the start. The insurer may refuse all claims and simply return
the premium. It is a one-sided remedy, of far more use to the insurer than to the
insured.
3 Outer House, Court of Session, 31 May 2001 (unreported).
4
S.20 In the case of Banque Financiere v Westgate Insurance Co, the Court of Appeal
confirmed that where an insurer breaches its duty of good faith, the policyholder
is not entitled to damages for the loss suffered.4 We summarise the many
criticisms made of this case. However, it is a well-established precedent in
English law. We think it is also likely to be followed by the Scottish courts.
S.21 Mutual duties of good faith underpin the insurance bargain. We think that the law
should provide the parties with appropriate remedies if these duties are
breached. If an insurer acts in bad faith in a way that causes foreseeable loss to
the policyholder, damages should be available.
S.22 However, it is not easy to characterise the duty of good faith. We do not think it is
an implied term or that it should give rise to an action in tort or delict. It is best
seen as a separate, non-excludable duty, giving rise to specific remedies.
OTHER REMEDIES
S.23 In Part 5 we describe four other remedies available to a policyholder who has
suffered loss as a result of the late payment of a claim:
(1) Interest. This is the main form of compensation for late payment, but
does not compensate for further losses.
(2) Breach of statutory duty. The Financial Services Authority (FSA) requires
insurers to handle claims promptly and fairly. If not, the FSA may take
disciplinary action against the insurer and may impose a fine. In addition,
consumer policyholders may bring a claim for damages for breach of
statutory duty under section 150 of the Financial Services and Markets
Act 2000. However, these claims are not open to businesses.
(3) The tort of deceit (or, in Scotland, the delict of fraud). In theory, if an
insurer lies to an insured, it would be liable for any losses which result.
However, we do not think this would cover most examples discussed in
this paper.
(4) Reinstatement. Insurance policies often allow insurers to choose
between paying a sum of money or reinstating (that is, repairing or
replacing) the property damaged. If an insurer elects to reinstate, it
acquires obligations in relation to the quality of that reinstatement. Delays
in reinstating property may give rise to a claim for damages, including
damages for distress and inconvenience.
THE FINANCIAL OMBUDSMAN SERVICE
S.24 Consumers make take complaints against insurers to the Financial Ombudsman
Service (FOS). The FOS may also resolve complaints from small businesses with
a turnover of less than €2 million and fewer than ten employees. The FOS
decides disputes according to what is “fair and reasonable in all the
circumstances of the case”. It has regard to the law, but where the legal result
would be unfair, it does not apply the law.
4 [1990] 1 QB 665.
5
S.25 In Part 6, we explain that the FOS departs from the strict case law on damages
for late payment of insurance claims in two ways:
(1) Distress and inconvenience. Where an insurer has caused distress and
inconvenience by mishandling a claim, the FOS will order the insurer to
make some kind of reparation. These awards are compensatory rather
than penal and tend to involve low monetary awards.
(2) Compensation for financial loss. Where claimants can prove actual loss
as a result of an insurer’s delayed or non-payment, the FOS may award
substantial sums as compensation. For example, in one case the FOS
awarded up to the maximum it is authorised to award (£100,000) for the
interruption of an insured’s business.
COMPARATIVE LAW
S.26 In Appendix A we discuss the law on late payment of claims in Australia, the
United States and Canada, and refer briefly to the law in China, Germany, Italy
and Spain. In Part 7 we summarise the results of this research.
S.27 All the jurisdictions we looked at offer greater protection to policyholders than
English law. No other jurisdiction follows Sprung. In Australia, Canada and the
United States, the primary obligation of insurers is characterised as a duty to pay
valid claims, rather than as a promise to hold the insured harmless. China,
Germany, Italy and Spain also allow some form of compensation where there has
been late or non-payment of a claim.
S.28 In the common law jurisdictions, damages are also available for an insurer’s
breach of good faith. However, the cause of action differs. In Australia, good faith
is considered an implied term; when breached, it gives rise to an action for
breach of contract. In some states of the United States a lack of good faith may
also be considered a tort, giving rise to damages on a more generous scale.
Sometimes the courts award punitive damages to punish insurers who have
acted in a malicious or oppressive way.
THE CASE FOR REFORM
S.29 In Part 8 we summarise the many judicial and academic criticisms made of the
decision in Sprung. These began in the case itself. As Lord Justice Beldam put it:
There will be many who share Mr Sprung’s view that in cases such as
this such an award [the indemnity plus interest] is inadequate to
compensate him or any other assured who may have to abandon his
business as a result of insurers’ failure to pay, and that early
consideration should be given to reform the law in similar cases.5
S.30 We make four criticisms of the current law of England and Wales:
(1) The law lacks principle. The idea that the insurer’s primary obligation is to
prevent a loss occurring is a fiction which ignores commercial reality.
5 Sprung, above, at p 80.
6
(2) The law appears unfair. The law of England and Wales gives the
impression of being biased against the interests of policyholders.
(3) The law appears to reward inefficiency and dishonesty. The law does not
support efficient and well-run insurers.
(4) The law leads to injustice. Although the FOS mitigates the injustice of the
law for consumers and some small businesses, it cannot help medium
businesses; provide damages of over £100,000; or deal with disputed
oral evidence.
THE OPTIONS FOR REFORM
S.31 In Part 9, we identify two broad approaches to reform. The first would be to
amend section 17 of the Marine Insurance Act 1906, so as to provide
policyholders with damages where an insurer has acted in bad faith. The second
would be to reverse the decision in Sprung, so as to make an insurer liable for a
failure to pay a valid claim within a reasonable time.
S.32 We think that the duty of good faith should be non-excludable. However, in
business insurance, the parties would be free to agree contract terms excluding
the second form of liability (for failure to pay within a reasonable time).
Damages for breach of the duty of good faith
S.33 We think that the law is right to recognise that the parties to an insurance contract
have mutual duties of good faith. The nature of the insurance bargain makes this
a commercial necessity. However, the law on the insured’s duties is much more
developed than the law on the insurer’s duties.
S.34 We ask if legislation should include guidelines on the insurer’s duties. Drawing on
existing cases and FSA rules,6 we suggest that an insurer should investigate
claims fairly; assess claims in an unbiased way; give reasons for refusing claims;
and (where an insurer considers a claim to be valid) pay it within a reasonable
time.
S.35 The major flaw with the duty of good faith is that the only remedy currently
available is avoidance. We tentatively propose that damages should also be
available in appropriate cases.
S.36 We are proposing a limited and controlled liability. It would be a prerequisite to
liability that the claim was valid. The policyholder would then need to prove actual
loss, and that this was foreseeable within the general contract principles of
Hadley v Baxendale. We do not consider that breach of the duty of good faith
should form a separate tort or delict. This would leave the insurer open to a more
extended and unpredictable liability, which could add to the cost of premiums,
and act as a disincentive to challenge invalid claims.
S.37 We argue that the core duty of good faith should be non-excludable. It would be
inimical to the nature of an insurance bargain for the parties to exclude or limit
liability where a party acts in bad faith.
6 See, in particular, ICOBS 8.
7
Overturning the decision in Sprung
S.38 We think it is wrong to characterise an insurer’s obligation as a duty to prevent
harm from occurring. We prefer the Scottish approach, namely that the insurer’s
primary obligation is to pay valid claims after the opportunity for a reasonable
investigation. If an insurer breaches this obligation, it should be liable for actual
loss caused by the breach, provided that the loss was foreseeable at the time the
contract was made, and that the policyholder acted reasonably to mitigate the
loss.
S.39 It would, however, be open to commercial parties to exclude liability for late
payment through a contract term. For consumer contracts, such terms would be
subject to the Unfair Terms in Consumer Contracts Regulations 1999, and would
be likely to be considered unfair. However, in the case of business insurance, we
see no reason why insurers should not exclude or limit their liability for damages
arising from late payment.
S.40 We think that, if faced with a suitable case, it would be open to the Supreme
Court to reverse the Court of Appeal’s decision in Sprung. We ask whether the
issue should be left to the courts, or whether legislative reform is desirable.
Damages for distress and inconvenience
S.41 Under normal contract law principles, where a consumer enters into a contract to
provide “pleasure, relaxation and peace of mind”,7 then damages would be
available where a breach of contract causes the consumer distress or discomfort.
In cases where the consumer’s home has been left in serious disrepair for a
prolonged period, it has been suggested that it might be appropriate to award up
to £2,000 per person per year.8 The Financial Ombudsman Service follows this
approach.
S.42 The courts have held that these damages are available where an insurer fails to
reinstate the property, but not where it fails to make a monetary payment. We
think this is an unjustified anomaly. We conclude that damages for distress,
inconvenience and discomfort should also be available for delayed payments.
Questions for consultation
S.43 A full list of questions is set out in Part 10. We are particularly seeking information
on the costs and benefits of the reforms.
7 Watts v Morrow [1991] 4 All ER 937.
8 AXA Insurance UK v Cunningham Lindsey UK [2007] EWHC 3023.
GOING TO THE
FSA…
Outcome
in brief…
On Friday 11th
Nov 2011 Jo Flores forwarded 50 emails explaining the correlation of how the floor
and the lack of air both ‘material damage’ claims for which Mike Ward states in
his correspondence we are recognised as ‘policy holders’ for led to the
businesses being closed down. How trickery was involved and how the strength of
many interested parties in not paying and not admitting liability has left the
situation still unresolved today. To add insult to injury now Mike Ward will
not even comment on the floor or the structural defect. He will not open the
case and has failed the so-called independence of the ombudsman. DISP 2.7 is a
joke another nail in our coffin which will prove to be another injustice.
Outcome
in Length…
Events
concerning the Financial Ombudsman
Lease
– There are no repairing obligations on either the landlord or the tenant as it
is covered by the building insurance, drafted in the lease. We lessees pay a
premium towards the building insurance.
In
the insurance policy it states that in the event of a claim, lessees are to be
treated as if they had insured under a separate policy. The building insurance
is a joint policy holding separate cover in the event of a claim. Lessees are a
‘noted interest’ therefore treated as a separate customer of UK General (UKG)
building insurance, a requirement and contractual obligation set out in the
lease. Lessees are also contractually prevented from insuring the building
except through the landlords insurance.
Our
‘business interruption’ and ‘cessor of rent’ claim was as a result of the
landlord (fault) liability, which is fortunately a cover insured in the
buildings policy with a section called ‘Property Owners Liability’. All parties
are covered in the event any of us are at fault, as long as notice is given on
time.
However
‘Liability’ for these repairs was neither, admitted or denied by the landlord,
the insurers do not allow a landlord to admit liability, as it may in some
cases prejudice a claim so that is the general rule.
Unbeknownst
to us UKG however wrote to the landlord to state that they had breached the
terms of their insurance by not reporting the losses to the insurance company and
also by not mitigating the losses by failing to repair in a timely manner. This
further breached a contractual obligation set out in the leases (and the
policy) that the landlord is to repair with speed subject to having made a
claim, both of which the landlord failed to do.
We
lessees in 2005 were asked to provide evidence of why they believed the
landlord was at fault to the loss adjuster Alan Hines of QuestGates, for the
‘Property Owners Liability’ (POL) building insurance cover with UKG and much
later with another loss adjuster Graham Ward of the Royal & Sun Alliance
liability insurers who were brought in (RSA being an extra ‘integrally based
combined policy’ forming part of the UKG building policy offering further
‘liability cover’ and POL) because UKG had unbeknown to us refused cover causing
mass delays in the process, since the landlord failed to mitigate their losses.
The
issue of liability being left unanswered breached the rules of pre-action
protocol in construction and engineering disputes, which strictly and legally
allows 3 months for any liability insurer to admit or deny liability (or even
accept liability without admitting it on behalf of the insured landlord, which
is why liability insurance exists to protect the insured and shoulder any
financial liability). We therefore in accordance with the pre-action protocol
were entitled to know if liability was accepted or denied, instead we were left
in a position of indifference for years not knowing if we would ever have our
losses recouped. The financial burden, interest and immense stress caused a
great strain on us as a business and on a personal and organisational level.
In
2007 we asked the Financial Ombudsman to intervene and they told us to get a
‘final notice’ from UKG. UKG gave a ‘final decision’ notice to say that we were
not covered under the terms of our policy despite POL being in place. We
believe that the insurer should have acted in our interest and paid us
immediately which would have mitigated any further continuing losses and then
they should have recouped their losses from the landlord as well as told us the
landlord breached the cover. However if that were to be the case the UKG would
of had to pay us for the landlord being ‘liable’ for our loss under the POL,
which covered the landlord. We believe that the UKG made a ‘commercial
decision’ not to recover our loss and chose instead to view us a third party
and treat us at arms length. UKG however much later, to avoid an embarrassing
and potentially publically damaging ‘satellite dispute’ with RSA were forced by
the legal team of RSA Plexus Law to trigger the very same POL cover that they
had avoided using and pay equally with Royal and Sun Alliance to try to resolve
the claim, as RSA insisted the claim was valid under UKG POL cover for which
the landlord still held cover. At this stage we appointed one of the best loss
adjusters in the country as we could not understand what was taking so long and
we needed someone who did, as we wanted to settle quickly and get on with work.
However
in a tri-party meeting, RSA, UKG and the landlord they decided together to
force us into litigation and try their best to reduce quantum rather than
resolve the claim and insisted we appoint solicitors all of which would be more
money for us at this very difficult time anyway. We knew we could not afford a
legal team and also believed that the UKG should provide us with the legal
support under the cover we held with them or why were we paying for a building
insurance in a building issue that did nothing to help us mitigate further
losses if even UKG said the landlord was liable inadvertently because they had
refused the landlords claim under the POL on the grounds that they failed to
stop the losses and report the damage to UKG so they actually agreed with us
yet did nothing to help us as a separate policy holder in the event of a claim
to recoup the losses even if it was only for their own benefit to stop what has
been a case for them of further financial loss defending a policy holder whose
wrong.
All
parties now very interestingly took a unified battle stance towards us, which
was so transparent to us. Firstly the landlord wanted to save face with the
disrepair because as a Residential Social Landlord it had a political agenda at
the time to take over local authority stock and our disrepair case being so
severe in delays only served to reflect on the way they treat their tenants.
The local councillor and later the Mayor had written to the Housing Minister
Caroline Flint expressing these concerns.
The
UKG were never interested in paying the claim being the head building insurer
and a relatively new firm from Leeds and HQ in Dublin. CEO Paul Smith was aware
of the claim as the claimants had written to him in Bermuda and he asked Ansell
West to deal with us.
Finally
the RSA because we threatened the press and FOS thought they could beat us down
through the laborious legal route saying we had not properly presented our
claim and forcing us into court. Attempting a very old fashioned trick by
costing us out of any justice by dancing us into court which cannot be legal?
According
to the Financial Services Ombudsman now (who we contacted again this year since
the case has been heard against the landlord in court so the facts are in place
to make it clear for FOS and the insurers have never been investigated for
their behaviour) we are still pursuing a claim for business interruption
losses, which they say is not in the policy cover. We are actually making a
claim for liability, fault, error which caused massive losses business
interruption and two material damage claims ignored for so long as to put us
out of business in both premises. That means POL covers it and the general
material damage covers! The FOS are trying to say we are not a customer and
therefore they can’t deal with it but we believe that having taken the time to
read the case that they are scared to look into the case due to the huge losses
occurring until today and would now amount to a serious decision FOS are far
too scared to make as the implications are we could walk into any solicitor
with the FOS decision are sue both insurers for the ruining of not only our
lives but of the Youth Parliament Social Enterprise and Youth Economy. The
legal fees alone are £388,000.00 to date that UKG and RSA have had to already
pay to represent the landlord and if its found by FOS that UKG too would have
to pay our legal fees under the policy, the claim really should have been
resolved without litigation as they would end up paying far more and it is
looking very suspicious as to why they are all spending so much to take us down
and still today. Yes the claim today is large but at the beginning it was a
modest claim. If insurance people want to go around avoiding claims they should
check who they are dealing with because with nothing left we do not go away and
if they had anything on us they with all their legal might would have taken us
out by now. We have the truth! A true case of financial corruption by the big
people trying to take down the little people.
DISP
2.7.6
The
Financial Ombudsman Services rules when dealing with a complaint about insurers
are:
(6) The complainant is a person
on whom the legal right to benefit from a claim against the respondent
under a contract
of insurance has been devolved by contract, assignment, subrogation or
legislation (save the European Community (Rights against Insurers) Regulations
2002)
The
FOS are saying that these rules get the FOS off the hook and don’t allow them
to deal with this claim as they say we are not a customer and therefore they
cannot investigate. So the question is how on earth are we not a customer it
makes no sense at all!!
Under
the POL of our insurance policy, the landlord was at fault. It was not just
that the building had disrepair but the landlord failed to repair with any
speed or diligence as set out in the contractual obligations that requires them
to in the lease, therefore making the landlord ‘liable’ for our losses (business
interruption or otherwise). Had we simply been interrupted and this
interruption was not exacerbated by the landlord’s inaction, we would in no way
have had any claim against the landlord to pay us compensation whilst we could
not trade including rent paid which unduly enriched the landlord. The insurance
and the POL would not be triggered. Our claim is for them to admit ‘liability’
and pay!
UK
General Insurance (UKG) did not defend the landlord initially and said that
they had breached the terms of the insurance because firstly they failed to
mitigate our losses and secondly they failed to give notice to the insurance
company. The insurance then failed legally or in any other way to represent
us!!
Correspondence
from the Financial Ombudsman in 2011
1) 13th
April. 2011 Letter of acknowledgment providing a reference 6416403/JN/CCDG
2) 18th
April. Request for a copy of the ‘Final Decision Letter’ to give referral right
to the FOS
3) 5th
May. Request for signature of complainant Chantal Cracy
4) 18th
May. Acknowledgement that our correspondence has been received (two files).
5) 19th
May. Consumer fact sheet enclosed and acknowledgment that the insurers have
been contacted to provide information, once received the FOS will start work on
the case within 8 weeks.
6) 14th
July. Acknowledgement that the complaint will be now handed over to an
adjudicator
7) 19th
August. The case has now been referred to an adjudicator Mr Mike Ward who
writes that he specialises in settling disputes informally. He will look at
both sides and weigh up the information. Where a complaint cannot be settled
informally he can issue a more formal recommendations about whether a complaint
can be upheld or not. If either side do not accept what he says they can ask
for the complaint to be reviewed by an Ombudsman. The time taken on the outcome
will depend on what is involved and whether he needs further information. He
explains that there may be issues, which could prevent the Financial Ombudsman
Service considering the complaint. There is now a new reference number
6416403/MW/IS19
8) 26th
August. Email from Jo to Mike Ward following Mike make a telephone call to Jo
to say “the insurer may have made a commercial decision to avoid the claim”
which apparently and according to Mike they would be “perfectly entitled to”
and further that the FOS may not be in a position to deal with the complaint
according to rule 2.7.6. The email thanks Mike for his call and goes on to ask
for Mike to let Jo know where to find the rules he quotes as she has looked but
she could not find them. Jo does not get a reply but eventually she finds the
rules after a day or so and copies/pastes them into a further email to Mike
saying she finds it suspicious for Mike to only mention this flimsy rule and
that she believes that she is a policy holder which on the phone Mike denies
she is and further states the rule does not apply to her.
9) 16th
Sept. Mike emails Jo apologising for not getting back sooner and says he has a
particular issue that he needs to be cleared up with UKG saying it does not
affect her claim but it is an issue which needs to be clarified. Jo responds
and attaches the permission to appeal skeleton argument she has just issued at
the High Court (after a nine month wait to receive the transcripts from the
courts paid for by public funds with which without unusually and according to
the organisation Liberty uniquely she has not be allowed to ask for permission
until received as ordered by the Judge. The document outlines the corruption to
date. Jo further asks a pressing question about what Mike said to her on the
phone “I also need to know is a company taking a commercial decision really
'legally entitled' like you said it was on the phone, to do that? If so
which law backs that? Then well, what is the point of getting insurance cover?”
Jo adds “Final point in the light of the fact that I still have no legal
representation and that you the Financial Ombudsman finds that the building
insurance failed to give me legal cover even though I was covered under the
policy, how soon can they start to pay that? I really want a lawyer to talk to
although I have learned a substantial amount about the law. I would probably
represent our side still in the High Court at Appeal as you know its a serial
complex case plus the lawyers from what I have observed get so many things
wrong, it is hardly worth getting them involved at this late stage. To which
Mike again does not respond.
10) 22nd
Sept. Jo sends Mike an email asking has he got the information that he
mentioned he needed from UKG and she asks Mike to give her a call. Mike
responds and says he will call tomorrow morning or afternoon which ever suits
her.
11) 23rd
Sept. Telephone call between Mike and Jo reveals Mike is wondering who the
underwriter is as it is important to go after the correct people. He had
thought it was AXA but it later turns out to be Lloyds. Jo tells Mike her Great
Aunt Helen Mary Lloyd was married to Thomas Owen Lloyd and Mike say’s that the
Lloyds Society cannot be involved as UKG have permission to deal with complaints.
12) 29th
Sept. Mike writes to Jo to tell her, the policy was written by the lead insurer
under its former identity of Primary Insurance Company Limited (PICL).
Therefore UKG is authorised to deal with complaints against the insurer. He
says that the identity of the insurer is not relevant to the complaint although
the complaint must be set up against the correct insurer. He goes on to make
several points in his assessment to date:
a) The
policy provided 2 million pounds cover in respect of POL.
b) This
cover was for accidental bodily injury or accidental material damage to the
property arising out of a defect in the buildings.
c) The
policy was for the landlord and leaseholders given that we would be joint
policyholders.
d) Additionally
the landlord held a liability policy with RSA but no joint interests are noted
on that particular schedule.
e) Our
claims constituted mainly of business interruption and consequential losses as
opposed to those insured under the policy.
f) It
was not made clear to you by the landlord that you could make claims for some
time.
g) The
broker made it clear that our claims were not covered and we acknowledged that.
h) Monies
were paid by UKG for the material damage. The liability claim was ongoing.
i) Court
proceedings followed and continue.
j) Your
complaint to FOS is that you should have had your legal costs covered by the
building insurers to recoup your losses (and their own Jo adds). You are
dissatisfied about the way the UKG handled your claim as a joint policyholder.
Mike
goes on to say the FOS is not free to consider every complaint referred to it
and is governed by Dispute Resolution Rules of the Financial Services
Authority. Mikes position is DISP 2.7.6 (1), (2) & (5). He says “I do not
believe you were named on the policy and so you were not a customer or
potential customer. You were not bringing a claim directly under your policy
but as a third party against the policy holder.” No claim could have been
brought against the insurer except in very narrowly defined circumstances not
applicable here. Mikes conclusion is that “you were not seeking to assert any
rights against the insurer as a customer or potential customer and therefore
(1) & (2) do not apply to this scenario”
Mike
then agrees with my email now were I assert I was a customer and copied the
rules out, he states, “Insofar as I believe you were parties for those benefit
a contract of insurance was taken out leaseholders were included in the
schedule as “Policyholders” you were allowed to deal with your own claims and
if anyone had brought an action against you as a result of a defect in the
building the POL would protected and covered you. However the policy did not
provide legal cover for an action brought by you or the landlord or for
business losses suffered by either party.
Therefore
you are not seeking to recover contractual benefits entitled under the policy.
The policy provides a part for defence and is being utilised by the landlord to
defend your claim.
Therefore
you are the third party and the insurer is entitled to deal with you at arms
length.
The
loss adjuster dealt with the claim and I can see no dispute between you both
after 2006.
If
the Ombudsman found in your favour and awarded £100,000 you would forfeit any
rights in law to pursue the balance of the £400,000 claimed Andrews v SBJ
Benefit Consultants [2010] EWHC 875.
I
believe RSA would have no case to answer although I can only deal with one
insurer. This is because the policy does not name any other party other than
the landlord on the policy.
13) 30th
Sept. Jo Flores (cross over correspondence) emails: Since it has now been
established (as I have always stated from the beginning) that I am a policy
holder in my own right as if I had insured separately from the landlord:
1) How soon can I get my building insurers to give me legal help as with the
appeal pending I'll want that?
2) Will I get my legal fees back of £55,000 that I had to spend and will the
£388,000 of the other side’s fees be wiped out?
3) Even if you award compensation can I sue Lloyd's?
4) What happens about suitable or alternative accommodation to run my
businesses from for which I was insured?
5) How does one begin to sort of the mess of what has been done to me so I get
back to some sort of normal position and so what will you be recommending?
6) Do I finally get to meet the insurance and would you be there and can I
bring my loss adjuster Alan Harris?
I still can't believe this has happened to me, can you let me know when you
will adjudicate? I've had enough of waiting, its enough now, really!
14) 3rd
Oct. Jo writes an email to Mike she says: Yes funnily enough I got your letter
the same day I sent my email about suing Lloyds who you said was the insurer.
I think bearing in mind that the action of trespass was against me so
technically although claimant in the whole scenario I was defending a trespass,
which lead to all the issues being looked at by the courts I still have a case
to be answered as to why I wasn't defended legally.
Also since I asked the insurers to give me the facts (which I many years later
got on disclosure but knew already from the start) about whether they were not
paying for my losses under the combined insurance policy, specifically the POL,
because of CHA not mitigating their losses by acting expediently and they did
not give me this information as my insurers should have and should have advised
me legally then as I asked them to, then again they still have a case to
answer.
Again we discussed that too on the phone before your quick ruling on that they
were only able to defend claims, which they certainly did not in my case and
left me in the dark all along.
Look it is obvious to me and my loss adjuster at the time and the satellite
dispute goes some way to proving it that CHA had breached the terms, none of
them wanted to cover them and then between the lot of them they danced me into
court knowing that the premium would cover them putting me the 'problem' at
arms length as they all watched me fight for my life. Making me stupid offers
not reflecting my losses at any point.
I will sift through emails today and tomorrow to show you what I mean but in
the meanwhile I will be also looking into suing Lloyds as I know I'm right.
Again on the 3rd Oct Jo writes another email to Mike: Mike this is
the start of us being put to legal expense and having to employ a solicitor. It
is obvious that the CHA are starting to try to evict when the problems are
stemming from defects in the building...
-----Original Message-----
From: David Wise [mailto:DWise@steeleslaw.co.uk]
Sent: 21 August 2008 14:36
To: info@spaceshift.co.uk
Subject: Cromer Street FAO JO GAVIN
Importance: High
Dear Jo,
1.) I refer to our telephone conversation today.
2.) I attach a letter for your approval. Please approve and I shall send.
3.) From a file set-up point of view, I note that Chantal is the Co- Lessee
of 106/108. As such, we shall also be acting for her. As such, I need to take
a means of identity for her (passport/utility bill for home address) as we
did for you. You will both also need to sign a revised client care agreement.
When are you both available to come in and do this?
Look forward to hearing from you asap.
Kind regards
David.
David J Wise
Associate
Steeles Law
for Steeles (Law) LLP
Another
email was sent on the 3rd Oct from Jo to Mike: Just forwarding the
run up to that email... To make it clear to you the landlord had issued a
section 25 notice to double the rent if we did not pay £5,000 to have the floor
renewed which was an insured risk.
The insurance refused to pay for the floor until the liability claim was
over.... why? It was an insured risk and we could not trade. It should have
been a very common consequential damage material damage claim. Just because
they would not pay we got the letter from the landlord to double are rent on
104 or pay for the floor. They said it was a reasonable offer but it was
harassment and improper inducement. Why did the insurers not pay and if AGAIN
it was because they were all having a dispute as to who was to pay then how is
that our problem?
Thee insurers should have been defending our position but they left us in the
dark because they were all not wanting to pay leaving us in a position of
indifference.
Had the UKG just told us that the delays were due to the landlord and defended
our position and their own instead of fobbing us off then they and us would be
in a better position today.
From: spaceshift [mailto:info@spaceshift.co.uk]
Sent: 18 August 2008 17:13
To: Allison Sandiford-Austin
Cc: David Wise
Subject: RE: need your advice before
you go
Hi Allison,
Regarding the list of insured risks,
I have attached a copy of the building insurance which covers insured
risks for both spaceshift and Scarlet. This is the old Building Insurance, they
have now changed to another insurer, for which I don’t have a copy of the
policy. However I suspect it should be similar and have just requested for that
to be sent to me – which they may or may not do.
Also attached are copies of the two
letters from CHA dated 14/08/08 with demand for rent payments. We have always
ended up paying full rent on both shops right until 1st July 2008,
which is the quarter they are now referring to. The lease also seems to imply
that they are insured for rent loss in the case of damage to the premises
covered by the insurance.
You are right that we need the lease
sorting out first strategically but in this instance the landlord as per usual
is coming at us with any angle that puts us out of business, just like they did
with the rent review. This will render us unable to afford to continue with the
Scarlet rent review if we lose the money maker spaceshift, which we did say we
wanted to tackle after the rent review is completed but now seems much more
urgent.
I have attached a copy of the lease for
spaceshift and yes, it does state the same as within the Scarlet lease re
insured risks, which should apply to previous and recent disrepair at
spaceshift; but in the case of lack of ventilation it may be more than that,
i.e. a serious breach of building regulations.
I will also forward the recent
correspondence by email with the landlord for you to see the state of play at
present re recent leaks and lack of air in spaceshift. I have been in to the
Building Control Department at Camden this morning and have requested copies of
the original plans showing whether air vents should have been put in as
standard and this should hopefully be sent to me in a few days.
Building Control also advised that we should speak to environmental health
to have the space closed down until standard air vents are put in.
The landlord are saying in their email
that this is our responsibility but I think this is not.
We shall appoint a surveyor for market
value and for the floor damage at Scarlet and now for the air vents at
spaceshift to help the overall case.
So as they take us seriously and that
they don't dare repossess etc., can you respond to both rent demand letters on
our behalf, highlighting the legal clause about non payment of rent? If you
need further payment and/or ID to represent us with 106-108 Cromer Street ,
please let us know and we will drop it off to your offices tomorrow. I
certainly don't want a situation of guarding my own front door from a drill
taking the locks off or we will be really in a bad position then.
Kind regards
Jo
From: Allison Sandiford-Austin
Sent: 18 August 2008 14:53
To: 'spaceshift'
Subject: RE: need your advice before you go
Hi Jo,
Insofar as the exchange of
correspondence between you and the landlord relates to Scarlett Maguire, can I
please see copies?
With regard to Spaceshift, as
you know, I have not seen the lease in relation to this site and
therefore, I cannot advise you on how the terms of that lease affect your
position (also strictly speaking, as I understand it, I am instructed to deal
with the lease renewal of 104 Cromer Street (?)).
That said, the lease of
104 Cromer Street (Scarlett Maguire) at the bottom of page 29,
clause 6(3) states the following:
"If the Demised Premises or any part thereof shall be
destroyed or so damaged by fire or any other risk for which the Landlord
is indemnified under the insurance of the Demised Premises so as to be unfit
for occupation or use then unless the insurance of the Demised Premises
shall have been vitiated by the act neglect default or omission of the Tenant
the rent hereby reserved or a fair proportion thereof according to the nature
and extent of the damage sustained shall be suspended and cease to be payable
until the Demised Premises or damaged portion thereof shall have been
reinstated or made fit for occupation or until the third anniversary of such
destruction or damage whichever shall be the sooner"
It strikes me however, that
there is no list of "Insured Risks" attached to the lease (or at
least there isn't one attached the the copy of the lease that I have - is such
a list attached to your copy of the lease?
Notwithstanding this, it is
clear from this clause in the Scarlett Maguire lease that you are not
required to pay rent for the premises if it is rendered unfit for occupation or
use as a result of damage or destruction cause by an Insured Risk (provided
that you, as the tenant, are not responsible for the cause of the damage
or destruction). There will no doubt be some debate as to what
amounts to "rendered unfit for occupation or use" but in principle
the term is clear and it is a reasonable starting position from your point of
view.
With regard to Scarlett
Maguire, once I have seen and considered the correspondence, I or
David (in my absence) can write to the landlord and their legal
representatives in appropriate terms drawing their attention to this clause.
Have a look at the Spaceshift
lease to see if there is a similar clause.
In addition to sending me the
correspondence that you refer to in your email, please also give me details of
when you last paid rent in respect of Scarlett Maguire. Do you have an
up-to-date rent statement? What does the landlord say the arrears are?
I am copying David into this
email so that you have his email address.
I await hearing from you as
soon as possible in view of the landlords 7 day threat.
As you know, tomorrow is my
last day in the office until 3rd September but David returns from his
leave tomorrow so I will fully update him.
Rgds
Allison
From: spaceshift [mailto: info@spaceshift.co.uk ]
Sent: 18 August 2008 12:24
To: Allison Sandiford-Austin
Subject: need your advice before you go
Importance: High
Dear Allison,
We just received 2 nasty letters dated 14th
Aug 08’ from the landlord on Saturday. They are basically stating that if we
don’t pay the rent due on both shops since 1st July within 7 days,
they will either send bailiffs or would consider repossession. This is
following some email exchanges we had with them in the last 3 months to do with
spaceshift (our other business at 106-108 Cromer Street) where business has
been interrupted since 13 may due to a couple of leaks and where we also
realised there is no ventilation at all in the premises – i.e. not even the
basic air vents which should allow air to naturally come in and out of the
building and should have been fitted in the 1st stages of refurbishment,
according to UK building regulations. We asked them if they would agree to
cover the costs of fitting in vents, which they refused in an email last week
and to also give us a rebate on the rent since we could not trade due to these
problems and that was their response. They also blatantly denied that the
building may not be complying with building regulations and standard health
& safety requirements.
For us this is extremely bad news, as the
lack of ventilation means that we will not be able to proceed as we planned
with finding a client to hire the premises on a long-term contract, thus
guaranteeing a regular income, even if much lower than it would be with a
succession of short-term hire.
We therefore end up being in a total
static position on both businesses: unable to trade but forced to pay rent and
business rates on both shops. We need to know from you asap whether we have the
right to demand from the landlord that rent payments should stop while repairs
are still pending.
Thanks Allison, I look forward to hearing
from you
Jo (07916 325 037)
PS:
On a brighter note, spaceshift was hired for a day’s shoot by a production team
from Channel4 last Friday which is major exposure and marketing: because the
shoot they had to do was supposed to take place in a sauna, they said they did
not mind the lack of air having taken an enormous shine to the space and it was
a very successful day, starring T4 presenter Steve Jones in a brief promo to be
shown on TV at least ten times a day starting 28th Aug on Channel4
to introduce a programme entitled “When Women Rule the World”… ;-) so there’s
always hope if we can get things tied up quickly!
15)
3rd Oct. A further email was
sent from Jo with 4 attachments, Jo wrote: Dear Mike,
These letters prove that the legal action was first taken by CHA with the full
legal backing of their insurer and ours too as they paid the legal costs. It
would then fit that we defended our own position when we had peaceable made
known to the landlord and all their insured who were now plotting together to
get rid of us and the claim. Please see attached 4 documents, two rent demands,
letter to the directors and finally a letter of repossession where the landlord
trespassed despite us being forced once more to pay rent they drilled the locks
off to conceal the evidence of disrepair.
16)
4th Oct. Mike writes: I note
you have referred to Lloyd's. However, Lloyd's syndicates were co-insurers with
UK General Insurance (Ireland) Limited and the latter made all decisions as
lead insurer. That is the normal market practice and the co-insurers would not
handle claims or complaints, instead leaving that to the lead insurer. As such
Lloyd's is not involved in the process and will not have any input. Can you
confirm whether there are any further points you wish to make? I will be
dealing with the points raised in due course but want to ensure you have
included everything you wish to add before I do so.
17)
4th Oct. Jo wrote: I have just
taken some independent legal advice from three different people.
The views are relatively the same but with a few differences.
1) As a policy holder the insurance company should have sought to recover my
losses in the first instance and my landlord should have been viewed as the 3rd
party.
2) The insurance company should have paid my losses and taken action against
the landlord to recover their losses since they breached the terms of the
policy so the insurance owed them no duty even under the POL.
3) Although cases of insurance companies being sued are difficulty especially Lloyds
who have some immunity if as I have done I manage to negotiate through a family
friend to settle then that may be the most fastidious move. Any judgment by the
FO will help.
18)
5th Oct. Jo emails Mike:
You clearly state as a leaseholder I was a policy holder.
You
say that I probably wouldn't have a claim against RSA yet although not named
FARR PLC refer to RSA as part of a combined policy with the building insurance
policy.
I may have told Alison Gibson at the time very early on in the claim and before
I had access to the terms of the insurance policy that I understood her point
that does not mean that I accepted it, I simply accepted her point that she was
saying time and loss were not covered under POL but suffice to say Graham Ward
the loss adjuster did say later that we had a claim that could be treated under
the POL now he was acting for RSA yet referred to the POL as part of UKG's
policy. I believe the two were therefore combined as it says at the top of the
building insurance policy written by FARR PLC.
It does not just say that the insurers can defend claims they can also take
legal action to recover costs as I asked them in the first instance in 2005 to
do, if the policy had been made void by the landlord.
Did RSA have the right to force UKG to pay for some of the costs? Did UKG cave
in due to any legal threat or undue pressure from Plexus Law. UKG had made
their position clear to not pay towards anything due to terms being breached,
they made it clear to us and to the landlord. In fact the landlord threatened
to sue them through Woolf Simmons Solicitors when Jaqui Greene was commercial
manager. In no uncertain terms the landlord was forced to back down.
Why did our building insurer team up later with a liability insurer when
according to them they had no case to answer. Why were we left in the dark as
to the reasons behind their decisions, being that the landlord has breached the
terms. They should have taken on our claim from the start and legally backed us
to recover our losses. They had a conflict of interest investigating liability
against effectively themselves paying us if they had found the landlord had
breached the terms which they already knew they did. They should have put us in
the picture and backed us. Had they taken that position, backed by the
breaches, then RSA could not have effectively dragged them into the saga that
was then allowed to ensue involving other legalities effectively that would not
have been allowed to occur had we been not been left defenceless against a
powerful public body landlord and Plexus Law.
You say they had no contractual duty but in fact they did, they had a duty to
recover our losses from the 3rd party but for whose lack of action breached
terms and led to us not being covered for cessor of rent or the floor and
finally the lack ventilation airbricks which could have again been pursued by
our building insurer because of actions arising out of defects in the building
and HAPM insurance was there for that too.
5th Oct Email from Jo to Mike: I need
to ask you something in relation to that case law you quoted me. Also another
email from Jo -
Dear Ms Flores
Thank you for your email. Just to clarify,
although I would regard the cases against CHA and UK General as separate,
I cannot legally advise you as to any potential effect the latter would have on
the former. That is for you and your legal advisers to consider.
Unfortunately I cannot guarantee a swift
resolution to the complaint. The case is not straightforward and you have
raised a number of further issues which I have to consider. As I said, I assume
you have nothing further to add, although if you do I would appreciate
receiving this by the end of Friday 7 October 2011 at the latest.
If I am unable to provide you with a
favourable outcome by reason of eligibility or otherwise, you will have the
right to refer that to an ombudsman for a final decision. I would have no
control over the content of that final decision and the matter would
be looked at afresh.
Perhaps I might also reiterate for the sake
of completeness that this complaint does not and could not involve the
Society of Lloyd's or any of its underwriters. The lead insurer is UK
General Insurance (Ireland) Limited and this is the only insurer we
could consider a complaint against.
I will deal with your additional points as soon
as possible and hope to be in a position to do that by 4 November 2011.
Yours sincerely
Mike Ward
Adjudicator
| Financial Ombudsman Service
South Quay
Plaza | 183 Marsh Wall | London | E14 9SR
Tel: 0207 964 1486 | Fax: 0207 964 1487
Email: mike.ward@financial-ombudsman.org.uk
From: Scarlet Maguire Gallery
[mailto:scarletmaguire@yahoo.com]
Sent: 05 October 2011 15:44
To: Ward, Mike
Subject: RE: Your complaint about
UKG (Our ref: 6416403)
Dear Mike,
Yes thank you for your quick response to that question. I am clear on the
fact that both cases are separate then.
There is just the issue of the floor at the gallery and why there was so many
delays (see email to Monique Jamera 3rd June 2008 'The Floor' a material
damage claim) in fixing it by the insurer due to the liability claim pending
which had been pending anyway for three years. This delay lead to the section
25 and later unlawful eviction. Also why RSA at no point provided a
'defendants response on liability' in accordance with pre-action protocol
within 3 months. Also if it is legal for an insurance company to put a small
trader to the expense of getting audited accounts of 4 years when the exact
same information had been provided already very early on. Do you think this
was a case of dirty tricks where the onus was put on us to 'present our claim
properly' as a tactic with no real grounding.
I note your response will take a month, possibly more and bearing in mind I
have only just made it clear that my legal case could be helped with a swift
outcome that blows that idea out of the window.
Is there any chance it could be dealt with much quicker considering legal
implications?
With Kind Regards
Mary
spaceshift...
in
association with Scarlet Maguire Gallery
104-108
Cromer Street
London
WC1H 8BZ
UK
tel:
00 44 (0) 20 7837 6680
mob: 07916
325037
--- On Wed, 5/10/11, Ward, Mike <Mike.Ward@financial-ombudsman.org.uk>
wrote:
From: Ward, Mike <Mike.Ward@financial-ombudsman.org.uk>
Subject: RE: Your complaint about UKG (Our ref: 6416403)
To: "Scarlet Maguire Gallery" <scarletmaguire@yahoo.com>
Date: Wednesday, 5 October, 2011, 15:04
Dear Ms Flores
Thank you for your emails.
You have raised a number of queries and points
and I will need time to consider these before giving my view.
However, can I assume you are not intending to raise any further points and
that your responses to my initial opinion of 29 September 2011 are
now complete? If so, I would hope to able to respond further by 4
November 2011, but I will let you know nearer the time if that is
not going to be possible.
In the meantime, you asked about the case
of SBJ Benefit Consultants.
Your complaint is about UK General Insurance (Ireland) Limited and your legal
claim is against the former CHA. Had your legal case also been against UK
General, then I believe you would be precluded from pursuing it in court
for any balance over £100,000. Therefore, if at any time you do bring a
legal claim directly against
UK General as a named defendant, any award made by the Financial
Ombudsman Service and accepted
by you would put an end to that legal action. In fact, if legal
proceedings are commenced directly against UK General, the complaint to the
Financial Ombudsman Service could be dismissed under DISP 3.3.4(9).
Insofar as the legal claim and the FOS
complaint are directed against different parties, I would not consider them
to be the same thing. However, I am unable to legally advise
you as to whether the latter would compromise the former. I note
you have taken independent legal advice from three different people (your
email 4 October,12.49pm). It may therefore be better for you to
seek further advice on this particular point, which will not affect the way
the complaint itself is dealt with here.
Yours sincerely
Mike Ward
Adjudicator
| Financial Ombudsman Service
South Quay
Plaza | 183 Marsh Wall | London | E14 9SR
Tel: 0207 964 1486 | Fax: 0207 964 1487
Email: mike.ward@financial-ombudsman.org.uk
From: Scarlet Maguire Gallery
[mailto:scarletmaguire@yahoo.com]
Sent: 05 October 2011 12:52
To: Ward, Mike
Subject: Re: Your complaint about
UKG
Dear Mike,
I will put that quick question in writing as it may be more appropriate.
You remember that when I first approached the ombudsman to deal with my
complaint against the insurers in they said I should wait until after the
issues are more clearly defined by the court case and the outcome which has
commenced at the time.
Since the serial complex issues are now more clear and we did win on all
grounds of complaint with regard to disrepair save for the landlord getting
away with it so far due to our lack of legal backing with regard to common
laws, you have seen fit to now deal with the insurers through the FOS which
as you know was always our preferred method on taking on an insurance
company since your powers are made by regulatory codes specific to
financial behavior and as such FOS are somewhat above the law in the
recommendations that can make.
We were advised legally to take the case firstly against the landlord so as
not to confuse the two or mix them up. Also there was far too much work at
the time for us to take on both and in the case of the insurers your
independence appeals to us as well as the lack of financial fees to
complain to you.
You mention in your letter of the 29th Sept 2011 Andrews v SBJ Benefit
Consultants and say I would forefeit my right to recover any balance in
court.
Now just to be clear that does not involve my case against the landlord
does it?
I have read that the Ombudsman can make recommendations as well as award
compensation so my second question is, say you decided that the insurers
should have backed me legally when I requested them to take legal action to
'recover my business interruption losses and consequential losses' (in the
2005 property claim form), due to defects in the building, if the landlord
(a 3rd party) had effected my claim by making it void for this under either
the POL or combined liability insurance (as Graham Ward suggested) can you
make recommendations that;
1) My legal cost be reimbursed
2) They admit they were bullied by the RSA into a combined defence of the
landlord and take action to reverse their financial input and recover their
own legal costs
3) They swap sides and now back me legally as they should have in the first
place
4) They take on board my pending legal debt of £388,000.00 if the case
fails or of course if the case wins this debt won't exist.
Can you make them put right what was done wrong?
If this were the case then I may well take the compensation and accept
£55,000 (thereabouts) legal costs I paid out and accept legal backing now
at a crucial time I need it when it is just nearly not too late, while they
argue the toss again amongst themselves which I believe they would be more
capable of doing without a dispute if you were to Judge who was right or
wrong back when they had that dispute.
Your decision would be regulatory and crucial so they can't threaten each
other again.
So to make it clear I then could consider not to sue the insurance company
at all. As the above case you say would prevent me from doing so because
they (the insurance company as opposed to the landlord) will have complied
with their bare statutory obligation and your recommendation to put things
right back in their proper order.
|
|
19)
20)
5th Oct email from Mike to Jo:
Thank
you for your email. Just to clarify, although I would regard the cases against
CHA and UK General as separate, I cannot legally advise you as to any
potential effect the latter would have on the former. That is for you and your
legal advisers to consider.
Unfortunately I cannot
guarantee a swift resolution to the complaint. The case is not
straightforward and you have raised a number of further issues, which I have to
consider. As I said, I assume you have nothing further to add, although if you
do I would appreciate receiving this by the end of Friday 7 October
2011 at the latest.
If I am unable
to provide you with a favourable outcome by reason of eligibility or
otherwise, you will have the right to refer that to an ombudsman for a final
decision. I would have no control over the content of that
final decision and the matter would be looked at afresh.
Perhaps I might also reiterate for the sake of completeness that
this complaint does not and could not involve the Society of Lloyd's or
any of its underwriters. The lead insurer is UK General Insurance
(Ireland) Limited and this is the only insurer we could consider a
complaint against.
I will deal with your
additional points as soon as possible and hope to be in a position to do
that by 4 November 2011.
21) 7th
Oct Jo to Mike email: You say the RSA policy was for the
landlord only but it is listed that this is a combined policy with the UKU
buildings insurance and as such states commercial premises as covered and forms
an integral part of the policy.
It is further noted that although commercial properties are on the schedule
there seems to be a two page 'note' added in on page 210 and 211. I would
suggest this since it has no lettering that seems authentic at the foot of the
page has been added by solicitors after the event. One cannot throughout the
policy schedule in a leaseholder and then some peculiarity that serves no real
purpose in the landlords definition which is not a legal definition, i.e a
leaseholder is not a tenant and has responsibility for the building by paying
insurance for it unlike a tenant. I therefore conclude this is corrupt.
It is further noted that the building in question throughout has to date in ten
years, 'no fire certificate' which invalidates the policy.
Also can a loss adjuster legally write the defendants surveyors witness
statement?
Finally and most crucially the legal costs can be paid by the insurer to the
party who has suffered as a result of defects in the building to investigate,
defend and pursue cases.
22) 7th
Oct. Jo writes email: On the liability cover on page 157 of the first bundle I
sent you you'll see; Insured 2) Associated Companies of Community Housing
Association Limited details of which have been lodged with the Company. Then on
page 168 (under Liability Insurance page 167) point 6. Business shall mean that
which is specified in the Schedule.
Marie Livings from FARR PLC on request from me sent me a letter stating I was a
'noted interest'.
23) 9th
Oct. Jo writes final email to Mike before Monday deadline. Dear Mike,
I was worried when you said 'except for narrowly definable circumstance' I was
covered by the policies so I have double checked the insurance file (IF) this
weekend, I hope this helps.
1) You say we were the 'claimants' the insurers put 'solicitors'/ a legal firm
onto us on the 3rd Dec 2007 during what was initially an investigation into
liability. Page 155 of (unheard case of insurers) UCOI file. From then on we
'defended' the claim to them, their representatives including the landlord who
they were acting for. This was the start of legal costs, it was action to
legally defend a claim without a legal action commencing from us.2
2) Liability was never admitted or denied, breaching pre-action protocol page
205 UCOI.
3) As a leaseholder who paid a specific 'building insurance premium' (a
separate and distinct bill with Excesses which were always paid for by us the
lessee which would not be allowed if we were not a distinct building insurance
policy holder and would breach the terms of our lease) evidence of which can be
sent to you, we were an 'insured' party all covers therefore apply to us as if
we were insured as a separate policy. See page 79 of first 'insurance file' IF
covers sent to you.
4) There are a number of reference points that I will as a result of the above
IF draw to your attention:
Page 5. Commercial Property - Shops - In
connection with the Business of the
policyholder
Page 6. Full Rebuilding Costs - including the cost of complying with local
authority and or other statutory requirements
Page 7 Property insured (Commercial Property
where required) The terms of the policy apply
separately to each property as though each
had been insured by a separate policy.
Page 9 If the property is made inhabitable by any cause insured We will pay
the: Rent, Reasonable additional costs
of comparable accommodation incurred by
the policy holder
Page 12 Search and Trace - locating the source of damage to the property insured
caused by escape of water.
Page 13 We will pay for cost of repairing damaged parts including the cost of complying with building regulations.
If property insured has not been kept in a good state of repair we will pay for cost of repair or replacement
Page 15 We will not pay for Loss or
damage resulting from Faulty Workmanship, defective design
Page 18 POL All of this page especially the legal
title and 7 years which leaves
claim open
Page 19 Defective Premises. Any liability under paragraph 1b in respect of
which policy holder lessee is entitled to
indemnify from any other source (HAPM insurance for structural defects)
We will also pay defence costs and other
expenses incurred
Page 20 Denial of access (fire escapes and electricity cupboard) This policy
extends to include any claim resulting from interruption of or interference
with the business in consequence of accidental loss destruction or damage to any property in the vicinity of the insured
premises which prevents or hinders the use of or access to the insured
premises whether the insured premises or
property in it is damaged or not.
CROSS LIABILITY CLAUSE
If more than one policyholder is named in the schedule each policy holder so
named shall be considered as a separate and
distinct entity and cover shall be construed as applying to each policy
holder as though each had been insured
separately
Page 20 Notice of Interests - The interest of leaseholder is noted
Page 21Conditions which apply to the whole
policy 1. 2. 3. 5. 8. (For the avoidance of doubt as to whether we are a
policy holder) the Company agrees to accept the
designation under which such property has been entered in the policy holders
books.
Page 26 Notify us immediately
We may take over and conduct in the name of the policyholder exclusive control in settlement of any claim
We may also start legal action/proceedings
Fraud benefits thereunder shall be fortified
Page 27 Policyholder will not be
prejudice by the actions of leaseholders
(same applies)
Subrogation All neccessary steps for enforcing rights (did this mean possession
as dates for rent payment were changed to repossess both shops on same day)
Page 41 Combined Liability - 2a Legal liability for damages and costs in
respect of Property damage, Nuisance, Trespass
or interfrence with right of AIR
Page 42 6. Excess POL Principle Extensions Compensation
for court attendance £500 per day for directors which we were
Page 43 Warranties/Conditions Fire Certificate
is to be kept in force for any premises. There are none.
Page 44. The Business Commercial
Properties & leasholders each that deem to be noted
Page 92 Insured Interest 1. property 2. Business
Interruption loss of rent and/ or alternative accommodation 2005/2006
Page 102 Commercial Property Shops which
we have been notified
Contents
Page 105 We will not pay for wear and tear
or damage caused by the policyholder or their employees, we will pay for loss
or damage caused by escape of water
Page 107 This section provides cover for accidental damage for which you are
legally responsible to pipes
Page 109 Search and Trace caused by
escape of water
Page 111 Contents paid for in water escaping
Page 130 2005 paid the premium (or our part)
Page 157 RSA combined liability Insured associated
companies lodged with the company (noted interest lodged)
Page 158 Section 6 Excess POL Primary Policy is
UKU
Page 162 Combined Liability Insurance - Schedule which forms an integral part
of the policy
Shall be considered one document
Page 164 Irrespective of the number of Persons Entitled to Indemnity under this
policy shall be treated as one party or legal
entity so that there will be only one single contract of insurance
between the company as one party and all the persons entitled to indemnity as
the other party
Page 166 General Conditions 2a maintain
all buildings. b. any defect or danger
to be made good 3. Every letter in connection with circumstance
forwarded to company. Written notice given to Company. Company has right
to defend, settle or prosecute any claim
in the name of the insured.
Page 168 Business shall mean that which is in the specific schedule
Page 170 Attending court as a witness
daily rate £500
Page 171 Public Liability 1 C) Nuisance
- Trespass - Interference with Easement right of Air
other than legal liability for damages which result from a deliberate act or
omission of the insured or natural consequence of ordinary
conduct
Page 174 Extensions to Section 2a 1. Cross Liabilities If the insured
compromises more than one party the company will provide
indemnity to each in the same manner and to the same extent as if a separate
Policy had been issued to each
2. Compensation for court attendance per
day Directors £500
Page 179 A) Legal costs and other expenses
B) Costs awarded against the insured
Part B) 1. The landlord not covered 2. Same.
Page 180 The company shall pass notification to First
Assist Group LTD they did not.
Page 183. Section 5 JCT The company will
indemnify the insured parties in respect of any expense liability loss
claim or proceeding, sustain by reason of
damage to property, or by reasons of carrying out works. 1. Provided
that; the insured parties contribution
will be payable before the company is made
liable 2. pay all costs in defence, investigation
or settlement
Exclusions to section 5 1. A. Caused by the neglect
omission or default of the contractor (landlord not covered as breached
terms on all counts as proved by notice)
Page 184 Extension to section 5 A) Insured parties indemnified by reason of
damage to any property happening during period of insurance B) Pay all costs in
Defence or Investigation or settlement
of claims
If the policy is not renewed the period of insurance under JCT shall extend to the completion date including maintenance or defects (floor)
Page 185 Conditions applicable to Section 5 (regardless of insured's contributions)
the defence or settlement of any claim to prosecute any claim in the name of
the insured parties singly or jointly
Page 186 1. Excess POL. in accordance with the
terms of the Primary Policy, which shall run concurrently with this
policy 3. in addition where the primary policy provides. Provided that; in the
event of the underlying insurers exercising a
right under their policies to pay the limit of Indemnity, the company
will provide indemnity for costs and expenses
for which underlying insurers would have been liable had they not
exercised that right B) in the event of total exhaustion continue this policy in force as the Primary
insurance subject to the terms of this policy
Page 190. Limit of Indemnity shall be the maximum amount payable by the company
in the circumstances stated in the schedule or elsewhere in this policy irrespective of the number of persons entitled to
indemnity under this policy in respect of any insured event or during
any period of insurance.
all persons entitled to indemnify under this policy shall be treated as one
party or legal entity so that there will
be only a single contract of insurance between
the company as one party and all the persons Entitled to indemnify as the other
party.
Page 192 General Conditions 2 A) and B) and 3 all
breached by the landlord (3rd Party).
Page 193 Persons entitled to indemnity shall mean 1. A) The Insured 6) Business
shall mean that which is specified in the schedule and conducted solely from
premises in Great Britain and shall include C) fire
and security and security services (security shutters and fire exit part of the
claim)
Page 194. 8. Event one occurrence or series attributable to one source or
original cause 9.) Insured's Contribution
shall mean the amount specified in schedule which the insured agrees to pay
Page 195. The insurance provided by section 1 is on a costs inclusive basis whereby costs and expenses of the claimant and
the costs and expenses (incurred by the company or with the company's written
consent) of any person Entitled to Indemnify
are included within the limits of indemnity
stated in the schedule
Page 200. Extensions to Section 2 ( each of which is subject otherwise to the
terms of this policy) 1 Cross liabilities If the insured compromises more than
one party the company will provide indemnity to each in the same manner and to the same extent as if a separate policy had been issued to each.
NOT PART OF THE POLICY -
Page 211 Community also own some shops, etc
which they rent out to tenants. Although Community call these people Leaseholders - ( This needs checking badly worded
derogatory and possible not written by the insurers at all so needs double
checking!)
Community pays the £1000 excess and we
should deal with - (same as above) We as
lessee's have always paid excess on all claims.
Page 261 Zurich over 2005/2006 Part C - Business
Interruption Section 2. Page 14.
Odd reference August 2002 at bottom of page - Needs clarification. Some
policies are kept in existence for years or are standard.
Page 262. Insured paying the first premium the Insured will provide insurance
in terms of the policy in respect of injury, loss, Damage or liabiltiy for
injury or Damage as defined.
The schedule and certificates form part of and should be read in conjunction with this policy
Page 263 Consequential Loss - Loss resulting
from interruption of interference with the BUSINESS carried on by the
INSURED at the PREMISES in consequence of the DAMAGE to the Property used by
the INSURED at the premises for the purpose of
BUSINESS
Contents - Tenant's improvements, alterations and decorations.
Page 264 (d) Personal belongings of any Director, Employee, Volunteer, customer
or visitor but only for an amount not
exceeding £1,000 in respect of any one person
Damage Material loss or damage
Insurer Zurich Insurance Company
Premises The premises specified in the schedule owned and/or occupied by the
INSURED for the purposes of BUSINESS
Page 266 Each part of this policy is declared to be a separate contract
Warranties Non-compliance with any such
warranty insofar as it increases the risk of Damage will be a bar to any claim
Page 267 Claims procedure (a) Action by the
Insured. On happening of any event which could give rise to a claim or
on receiving verbal or written notice of any claim the Insured will: as soon as possible give notice to the INSURER
(b) Rights of the Insurer. The Insurer may take over in the name of and
behalf of the Insured the absolute conduct and control of all negotiations and
proceedings (c) Subrogation The Insurer
may take legal proceedings in the name
of the Insured - for its own benefit any right of recovery of the Insured
against other party and this condition will be evidence of the Insurer's right
so to do whether before or after the Insured has received an indemnity.
Page 270 Part A Material Damage Section Definitions Damage Accidental Damage by any of the Insured
perils specified in the schedule
Page 271 Section 2 Cover In the event of Damage to the Property insured
specified in the schedule and occurring at the Premises during the period of
insurance the Insurer will pay to the insured the value of the property at the
time of the Damage or the amount of such Damage or at the insurers option
replace, reinstate or repair the
Property or any part of it
Rent The insurance on rent applies only whilst any
part of the Building is sufficiently damaged to render it unfit for
occupation.
Drains and Gutters - Cleaning and/or repairing
drains and/or sewers and/gutters
Page 272 Tenants Subrogation Waiver - (b) the tenant contributes to the cost of insuring the buildings against the
peril which caused the damage
Trace and Access In the event of Damage arising following the escape of water
this insurance is extended in addition to the Sum insured to pay costs incurred
in locating the source of Damage, effecting repairs and general making good
Mortgages, Freeholders and Lessors
Clause Any increase in damage resulting
from an act of negligence will not prejudice the interest of the lessor
provided that such risk is without their knowledge or authority
Tradesmen may be employed to effect repairs or minor structural alterations in
the building without prejudice to this
insurance
Page 273 Work in Progress Section 2 (b)
Existing buildings and contents including any
period for maintenance or making good
defects
Section 3 - Cover In the event of damage
to the Property insured the Insurer will pay
to the insures the value of the property
at the time of Damage
Section 4 Other Persons Indemnified The Insurers agree that: (a) all interests
in the insurance by this part will be vested jointly
in the Insured
Page 274 - Professional Fees - The insurance by each item on Works in Progress
include an amount in respect of architects,
surveyors, legal and consulting fees necessarily and reasonably incurred
in the reinstatement or repair of
Property insured consequent upon its Damage but
not for preparing any claims
Exclusions (a) (i) The insurer will not be
liable for the cost of repairing or reinstating any work executed as a
result of it's own defective design
which was defective
Page 275 Part C - BUSINESS INTERRUPTION section 1 Special Definitions
Annual Gross Revenue The Gross Revenue during the 12
months immediately before the date of the incident
Gross Revenue The money paid or payable to the INSURED for goods sold or for SERVICES rendered in the course of the BUSINESS at the PREMISES, excluding rent for
housing premises
Incident - Damage to property used by
the Insured at the premises for the purpose of
BUSINESS
Indemnity Period The period during which the
results of the BUSINESS are effected in consequence
of the Incident, beginning with the
Incident and lasting not longer than the maximum Indemnity Period
specified in the Schedule + Office Buildings + Standard Gross Revenue
Notes 2. Provision will be made for the trend of the BUSINESS and for
variations in or other circumstances, either before or after the date of the
incident, which affect the BUSINESS or would have affected the BUSINESS had the
incident not occurred, and the figures
for Annual Gross Revenue and Standard Gross Revenue adjusted to represent as nearly
as reasonably practicable the results which would have been obtained during the relative period after the
Incident if the Incident had not happened.
Section 2 - Cover (a) Additional Expenses for
the sole purpose of avoiding or diminishing the interruption of the
interference with the BUSINESS
Page 276 Provided that (i) insurance in force
at the time of the incident covering the
interest of the Insured in the Property at the Premises against such damage
and
(ii) Payment has been made or liability
admitted for such damage (or payment would have been made or liability admitted
for such damage but for the proviso excluding
liability for losses below a certain amount)
Alternative Trading If during the Indemnity Period goods are sold or services rendered elsewhere than the premises
for the benefit of the business either by the insured or by others on behalf of
the insured the money paid or payable in respect of such sales or services will be brought into accounting in arriving at the
gross revenue during the indemnity period
Basis of Claim settlement - (a) in respect of Additional
Expenditure (i) additional costs incurred in order effectively to
continue administration and maintain services including fitting of out
temporary premises, costs of removal, hiring of vehicles, plant, and machinery and incidental expenses relating thereto (ii)
increased costs incurred for rent, rates, taxes, lighting, heating, cleaning
and insurance due to the enforced occupation of temporary premises (iii) legal, clerical and other charges incurred in the replacement or restoration of
deeds, plans, specifications, documents, books of account, card indices and other office records less any sum saved during the indemnity period in the insured's
normal expenditure which may have been affected
in consequence of the incident
(b) (ii) In respect of an increase in Costs of Working: the additional
expenditure incurred solely to avoid or
diminish the reduction in Gross Revenue which but for that expenditure would have taken place during the
Indemnity Period in Consequence of the Incident,
provided that such additional expenditure: (1) is
necessarily and reasonably incurred
Page 277 Professional Accounts - Any
detail contained in the Insured's business books required by the Insurer for the for the purposes of
investigating or verifying any claim may be produced by professional
accountants if at any time they are regularly acting as such for the Insured
and their report will be prima facie evidence of the details to which such
reports relates. Te Insurer will pay to
the insured the reasonable charges payable to its professional accountants for
producing such evidence and reporting to the Insurer and the Insured that such details are the liability of the insurer as
specified
Section 4 - Special Circumstances
1. Any loss as insured by this Part resulting from interruption of or
interference with the Business in consequence of the Damage to the Property at
the under noted situation within the territorial limits will be deemed to
be an incident: (a) any generating station or sub-station of any public electricity supply undertaking (b)
any land-based premises of any public gas
supply undertaking or any natural gas producer linked directly to them
(c) any water works and pumping station of any public
water supply undertaking (d) any land based premises of any public telecommunications undertaking from
which the insured obtained electricity, gas, water or telecommunications
services (e) in the vicinity of the
Premises which prevents or hinders, the use
of or access to the Premises excluding any Damage to the Property of any supply
undertaking to the prevents or hinders the supply of services by an
electricity, gas, water or telecommunications undertaking to the premises
2. The insurance by this part is extended to include loss resulting from interruption of or interference with the BUSINESS carried on by the insured at the
Office Buildings in consequence of: (a) (ii) any discovery of an organism at the office buildings likely to result in the occurrence of a Notifiable Disease (iii) any occurrence of a
Notifiable Disease within a radius of 25 miles of the Office Buildings and the
discovery of vermin or pests at the
office buildings (c) any accident causing defects in the drains or other sanitary arrangements at the Office buildings
on the order or advice of a competent local authority (Environmental Health)
Page 278 Special Provisions: (b) for the purposes of this Special
Extension: (i) Indemnity Period will mean
the period during which the results of the BUSINESS
are affected in consequence of the occurrence, discovery or accident, beginning with the date from which the
restrictions on the Office Buildings are applied (or in the case of (d) above
the date of the occurrence) and ending not later than the Maximum Indemnity
Period thereafter. Maximum Indemnity Period will mean three months.
Page 279 Insured Perils 2. (a) Damage or Consequential loss arising from (i) confiscation, requition or destruction by
order of the government or any public authority
(ii) cessation of work (c) Consequential Loss arising from deliberate erasure,
loss, distortion or corruption of information on computer systems or other
records, programs or software 6. Escape
of water from any tank, apparatus or pipe 10. Loss
of rent/temporary accommodation 11. Accidental
damage to supply pipes and cables. Accidental damage to fuel oil supply
pipes, water and gas supply pipes, sewerage and drainage pipes.
Page 280 15. Theft or attempted theft, other than: (c) involving parting with
title and possession of any Property insured if induced
to do so by fraud, trick or false pretence
The Insurer will also indemnify the
Insured for the cost of: (i) repair of Damage to Buildings caused by theft or attempted theft
of the PROPERTY insured where the Insured is legally responsible for the cost of repairing such Damage
16. Subsidence or Ground Heave of any
part of the site on which the property stands or landslip excluding:
(b) Damage or Consequential loss caused
by or consisting of: (iv) defective design or workmanship or the use of
defective materials (c) Damage or
consequential loss which originated prior to the inception of this cover (d) Damage or consequential loss resulting from (i) demolition, construction,
structural alteration or repair of any Property
17. Accidental Damage being all risks of Damage to the Property insured excluding: (b)
Damage or Consequential loss caused by latent
defect, gradual deterioration, wear and tear, its own faulty or defective design or materials but
this will not exclude subsequent Damage or Consequential Loss which itself
results from the cause not otherwise
excluded
Page 282 Part D 'All Risks' Section 1 -
Cover In the event of accidental Damage to the
Property insured specified in the schedule arising during the Period of Insurance within the
territorial limits the Insurer will pay to the insured the value of the Property at the time of the Damage or any part of it provided
that the liability of the Insurer will not exceed: (a) in the whole the total
sum insured.
Section 2. Exclusions The insurer will not be liable for: (b) DAMAGE caused by:
(i) latent defect
Page 284 Additional Cover - 1. European Community Legislation, or 2. Building or other Regulations or Bye-Laws of any public authority (thereafter
referred to as "the stipulations") in
respect of Damage to Property insured - Undamaged
portions Excluding: (a) the cost incurred in complying with the
stipulations: (i) in respect of Damage
occurring prior to the granting of cover
by this extension (iii) under which notice
has been served upon the insured prior
to the happening of the Damage (iv) for which there is an existing requirement
which has to be implemented within a given period (b) the additional
cost that would have been required to make good the Property lost, distroyed
or damaged to a condition equal to its
condition when new had the necessity to
comply with the stipulation not arisen (c) the amount of any charge or assessment arising out of capital
appreciation which may be payable in
respect of the Property or by the owner thereof by reason of compliance with the stipulations
Special Conditions 1. The work of reinstatement
must be commenced and carried out without unreasonable delay and in any
case must be completed within 12 months
of the Damage or within further time as the insurer may allow (during the said
12 months) and may be carried out upon another site (if stipulations so
necessitate) subject to the liability of the Insured under this extension not being thereby increased. 2. If the
liability of the INSURED under this Part other than from this Additional Cover
shall be reduced by the application of any of the terms and conditions of this
part then the liability of the Insurer under this additional cover shall be
reduced in like proportion. 3. The total amount
recoverable under any item of this part in respect of this Additional
Cover shall not exceed: (a) in respect
of the loss, destroyed or damaged Property:
(b) in respect of the undamaged portions of Property (other than the
foundations) 15% of the total amount for which
the Insurer would have been liable had the property insured at the premises
where the Damage has occurred been wholly destroyed.
Page 285 Non-Invalidation This insurance
will not be invalidated by any act omission
or by any alteration which increases the risk of Damage without the authority
or knowledge of or beyond the control of the
insured, provided that immediately the insured becomes aware of the
increased risk of Damage notice is given
to the Insurer and any additional premium paid.
Professional Fees The Insurance by each
item on Buildings and/or Contents includes an amount in respect of Architects',
Surveyors', Legal and Consulting Fees necessarily and reasonably
incurred in the reinstatement or repair of the Property insured consequent upon
its damage but not for preparing any claim. The amount payable under each item
will not exceed in total its Sum Insured.
Page 287 Special Conditions Designation For the
purposes of determining where necessary the heading under which any Property is
insured, it is agreed to accept the
designation under which such Property has
been entered in the Insured's books.
Other Interests It is agreed and understood that where
the Insured so intend the interests of parties other than the Insured in this
insurance are admitted, the nature of such interests to be declared in
the event of loss.
Page 288 Exclusions 1. the Excess will apply to each and every loss in respect
of each separate Premises. 2. Pollution or Contamination Damage to Property or
Consequential Loss caused by or resulting from pollution or contamination but
this will not exclude Damage or
Consequential Loss not otherwise excluded, caused by (b) any of the insured perils 1-15 if insured
which itself results from pollution or
contamination 3. This exclusion does not
apply to Damage or Consequential loss by
theft if the Insured Perils 15 is specified in the schedule.
Page 289 4. (a) Damage to any Property more specifically insured by or on
behalf of the insured (b) consequential loss of any kind other than loss of
rent if insured.
Page 291 (c) The insurer's liability for Damage or Consequential Loss as set
out in the sub-clause 2(a) above shall not
exceed in respect of all losses arising out of any one occurrence and in
the aggregate in any one period of Insurance the lower of either any limit of
Liability or Sum insured stated in these parts or the Limits shown against the
items in (i) to (iii) below (where insured by these Parts) after the
application of all provisions of this Policy including any contributions by the
Insured. (ii) (1) Houses and blocks of flats including associated loss of
rent £2,500,000 (2) The costs of Alternative Accommodation and Rent in respect
of Buildings described in (ii) (1) above £2,500,000 (iii) (1) Business
Interruption including Rent Receivable not associated with houses and block of
flats £100,000 (d) For purposes of sub-clause 2(c) above if any block of flats
is partly occupied for retail or other commercial purposes the limits shall
apply as follows: (i) where the proportion, designated for residential use is
at least 80% of its Sum Insured the above Limit(s) of £2,500,000 shall apply to
the residential portion and additionally the
£100,000 limit(s) specified above shall apply to the remainder
Page 292 Special Conditions 1. The
liability of the Insurer for repair or restoration of Property which is only partially damaged will not exceed the
amount which would have been payable had such Property been wholly destroyed.
3. Any additional amount which may be payable
solely due to this Reinstatement Condition will be paid only if: (a) Reinstatement commences and proceeds without
unreasonable delay 4. (b) All the terms and conditions of this Part will
apply: (b) where claims are payable as if this
Reinstatement Condition had not been incorporated.
Page 293 (c) When the Buildings continue to be unoccupied
after 120 days
Special Definitions Declared Value the
insured's assessment of the cost of reinstatement of the Property Insured
arrived at in accordance with the Reinstatement
provisions at the level of costs applying at the inception of each
Period of Insurance (ignoring inflationary factors which may operate
subsequently) together with, insofar as the insurance by the item provides, due
allowances for: (a) the additional cost of
reinstatement to comply with European and Public Authority requirements (b)
Professional fees
Page 294 B. Event The Insurance will not be liable for the amount of any
deductibles specified in the schedule in respect of the total of all losses
arising from any one occurrence as ascertained after the application of all
other terms and conditions of the relevant Part(s) including Average. For
losses attributed separately to Insured Perils 5 or 6 an occurrence means any separte period of 72 consecutive
hours during the currency of the insurance.
Page 297 Public Liability Part F - Public Liability Section 1 - Special
Definitions Financial Loss Loss or Damage other than arising from Injury or
Damage to Property.
Pollution and Contamination (a) All pollution or Contamination of Building's or
other structures or of water or land or
the atmosphere and (b) all loss or Damage or Injury directly or indirectly
caused by such pollution or contamination.
Products. Goods (including containers,
packaging, labeling and instructions) sold, supplied,
repaired, altered, treated, erected or installed by the Insured in connection
with the Business
Page 298 (d) (i) in defending any claim for
damages
Section 3 - Financial Loss. The Insurer
will indemnify the Insured in respect all sums which the Insured may become
legally liable to pay damages and claimants
cost and expenses for Financial Loss arising as a result of a negligent act or
accidental error or accident omission committed or alleged to have been committed, within the
geographical limits, by any employee or
volunteer in, or about, or in consequence of, their duties arising out of the
Business occurring during the period of Insurance.
In addition the insurer will pay all costs and expenses incurred with its
written consent: (i) defending a claim. Exceptions The insurer will not be
liable for Financial Loss: (a) caused by the
failure of the Insured to fulfil its obligations under any contract
entered into with the claimant. Section 4 - Indemnity to Other Persons. The
Insurer will indemnify under the terms of this Part at the Insured's request:
(d) any principle for whom the insured is or has been carrying out work but
only to the extent required by the contract for work (e) (1) is not entitled to
indemnify from any other source
Page 343 Legal Defence (4) The Insurer will represent the Person Insured in appealing
against the imposition or terms of any Statutory Notice issued under
legislation affecting the Business (The Section 25 Notice and Eviction)
Section 5 Property Protection and Bodily
Injury. (A) Property Protection. Insured
Incident. The Insurer will negotiate for the Insured's legal rights in any
civil action relating to Property which is owned by; or the responsibility of
the Insured following: (1) any event which causes or could cause Damage to such
Property; or (2) any Nuisance or Trespass
Page 344 Exceptions. (5) defending a person's legal right other than in defending a counter-claim
(Section 25 Notice to double the rent unless we fixed the floor (an insured
risk) and an improper inducement, then illegal eviction, before any emergency
court action took place to get an injunction which was upheld upon the issues
of disrepair being insured risks and it being ordered that that was to be dealt
with in the county court proceeding which it was further ordered were to be
dealt with very expediently, no rent was to be paid further by order and Quiet
Enjoyment (including the fixing of outstanding repairs) was also ordered.
Page 345 Exceptions The insurer will not
provide indemnity in respect of or arising from or relating to: (1) any claim
relating to: (ii) a lease, licence or tenancy of land or buildings other
than a dispute with a professional adviser in connection with the drafting of a
lease, licence or tenancy agreement
Page 346 Debt Recovery - Insured Incident (d) the insurer has the right
to select the method of enforcement, or to forgo enforcing judgement if the
Insured is not satisfied that there are, or will be, sufficent assets available
to satisfy judgement. Exceptions The Insurer will not provide indemnity in
respect of or arising from or relating to (1) the recovery of money and
interest due from another party where the other party intimates that a defence exists
24) 31st
Oct. Mike Ward write a letter to Jo Flores and Chantal Cracy. To recap:
a) The
claim was against the landlord the policy provided no benefit to you.
b) I
feel the policy only provided liabilities attaching to the landlord so you were
not a policyholder.
c) You
are not eligible to bring a complaint against the insurer who owed you no duty
as a third party.
d) You
feel as a joint policyholder UKG was under a duty to recover your losses, the
same duty as the landlord and it ought not to have taken sides with the
landlord to the detriment of the other.
e) I
do not dispute that you might also be a party entitled to benefit under the
policy and a building claim was in fact paid directly to you.
f) The
section of the policy states; ‘We may take over conduct in the name of the
policyholder with complete and exclusive control the defence and settlement of
any claim”. We may also start legal action in the name of the policyholder (but
at our expense and for our own benefit) to recover from others (except those
who do not have the benefit of their own insurance cover in respect of their liability)
compensation in respect of anything covered by this policy”. I both cases the
word “may” owes no duty and the business interruption was not covered anyway.
Plus the benefit of such an action would be for the insurers. It means where
the insurers pay out they may pursue the party responsible for the loss.
g) I
do not agree the section 25 notice issued by the landlord would have triggered
the policy and forced UKG to defend the action against you by the landlord for
possession. Any desire for the landlord to take possession would not have
afforded you protection covered by the policy.
h) The
damaged flooring you say remained outstanding at £5,000 and the insurer refused
to pay it until the liability claim was concluded. I see no reference to this
and it may have been because of continuing risk of further damage. I can see no
outstanding issue between you and the loss adjuster Alan Hines in 2005/2006.
The floor does seem to surface in 2008 but it seems the landlord was dealing
with this and not the insurer.
i) You
mention that RSA and UKG policies were combined. There is mention of the word
combined to describe the cover offered but they are separate policies. UKG’s
policy is for lessees as policyholders, whereas the RSA’s is for the landlord
and companies logged with RSA. This has no impact on who was strictly the third
party claimant and who was the defendant policyholder seeking indemnity from
the insurers. Overall the losses you claim were uninsured. You wish to
transform your position as a third party to one where the defendant insurer
owes you a direct duty or one of care or one under the policy contract. I
cannot find such a duty for the purposes of business interruption.
j) UKG
was entitled to deal with you as an unconnected party to the policy.
k) The
policy could only defend the landlord and they are the only ones entitled to
make a complaint to FOS.
l) The
UKG’s cross liability clause does not in my view support you. This indicates
that each policyholder shall have cover construed as applying to them as if
they are insured separately.
m) UKG
was entitled to defend its policyholder and no co-extensive duty to all
policyholders existed.
n) The
action to regain possession does not bring the policy into play, it does not
provide for defence of possession proceedings or provide compensation for
possession.
o) Having
considered the further comments you have made I have to say I do not consider
you an eligible complainant I am unable to recommend that the merits of your
complaint can be considered against UKG.
25) 6th
Nov. Email from Jo to Mike: I do despair when we go around the houses with this
complaint as meanwhile I suffer on a daily basis financially and psychology and
am desperate to be reinstated back into my businesses.
It is clear to me that by just giving you one, the official insurance documents
files
and secondly
the correspondence between ourselves, the landlord and the insurer that you
simply have no real grasp on the case. That however is hardly surprising since
there are in total 22 bundles produced for the courts.
It is with this in mind that I wonder whether you would be so kind as to come
to my house and then at least we can address points on the spot making this now
arduous process of back and forth emails less time consuming and stressful.
To address some of your points however:
1.) Graham Ward RSA met with us directly and stated the interruption was
eligible for POL part of the building insurance policy so there is no dispute
we could claim for losses.
2.) I perfectly understood the cover that was in place from 2005 as I had
requested a copy of the policy. Although my first correspondence with the
broker FARR PLC clearly requested that the insurance act in my interest
'equally' as a policy holder to recoup my losses, I understand from our
conversation that the insurer is perfectly entitled to make a 'commercial
decision' to ignore me. I have never used the word 'duty' I simply wonder if
this is acceptable under FSA guidance in terms of fairness, David vs Goliath
somewhat!
3.) I gave you as stated above all the insurance documents given to me (mostly
at the last minute before the court case last year) and when I made the
complaint to you I did say that I wasn't entirely sure who the complaint was
directed at, so I find it incredulous that you use UKG all the time when
clearly some other insurer was at fault. For some of the times that I complain
about, 'Zurich' were the ones who were covering the building for example 2008
the time of the floor. I simply am not getting your thrown together logic?!
4) Although you mention several time actions 'may' be taken by the insurers for
their benefit only, to recover losses, it just seems a bit strange that the
insurers have wasted more money trying to get 'rid' of this eligible claim
instead of just paying for the damage so where is the logic in that?
They will too keep on and on and on spending, as it is a building claim which
certainly does not satisfy your opinion that our losses are not eligible as
they were losses due to faults in the 'building' and nothing else!
Insurance companies do not 'benefit' for 'themselves' they only 'recover' when
generally they have had to pay out!! It would be interesting to later find
(since they have substantial evidence because of the court case) they have at a
later stage recovered their losses from the landlord.
5.) The Section 25 (an improper inducement to fix the floor or they would
double our rent) was a vicious act by the landlord but UKG still should have
fixed the floor as it was covered as 'consequential damage' which they did not
dispute, so why didn't they? I don't know what you mean by a 'continuing risk
of further damage' please explain this?
6.) Trespass is covered in the 2008 policy.
7.) Who are you saying is the third party in this complaint?
8.) What losses exactly do you mean were uninsured?
9.) Why if Marie Livings from FARR PLC wrote to us (and this has been accepted
by the courts) and said we were a policy holder are you disputing this?
10.) Why do you always say UKG through Alan Hines dealt with the claim promptly
is that a relatively speaking comment comparing worse cases?
11.) A strained construction has been placed on events, is really insulting
what do you mean?
12.) I am going to have to check with a solicitor about cross liability but why
aren't you absolute in your views?
Finally UKG were forced to defend a claim that they had already washed their
hands off to both parties. They owed no duty to the landlord because they
breached the terms of their own insurance to which we had joint cover but they
should have in our opinion recouped our losses as a separate policyholder
entitled under our buildings policy.
I look forward to a possible date to trash this out.
26) 7th
Nov. Email from Mike: I will look at the your points shortly,
although I believe this case is now better referred for an ombudsman's final
decision as to your eligibility to bring a complaint directly against the
insurer. That means the decision will be taken out of my hands and once made,
this will represent the final step in our process.
I
am sorry if you feel insulted by my reference to 'strained construction'. This
is an ordinary term used in these types of situation and was not meant to
insult anyone. In my view, the way the policy reads is clear, but to
achieve the result you seek, I believe the policy cover and the
circumstances of the loss need to construed in a way which I do
not believe is correct. I feel I do have a grasp of the case, although my
view will not now decide the outcome. I hope to be contacting you
within the next few days to commence the ombudsman's final decision
process.
27) As you stated in
your letter of the 31st Oct I would have 14 days to respond to your letter. I
only received it on the 4th November
and the email I sent to you I drafted immediately after I read your letter
suffice to say I have not entirely addressed your letter point by point. I
would like to take the opportunity to do that and so I will need 14 days to do
so.
In reference to my main question in the email as of yesterday I had an idea
that we could meet at my flat in St Pancras as I have all the files and I would
like to have a solicitor present to as I have found you have contradicted
yourself so many times as to whether I am a policy holder or not it is very
unclear.
Can you meet with me and a solicitor at my flat?
If not I will take some advice about what you have said but as I said I will
need the 14 days offered to me to respond. In the meantime please feel free to
reply to the points you wanted to.
28) Thank
you for your email.
The Financial
Ombudsman Service does not conduct visits to consumers. However, I would be
happy to speak with your solicitor by
telephone should you so wish.
You are correct that
you have 14 days to respond. Beyond that, the ombudsman's final
decision process gives 21 days to make any further submissions before the
complaint will be considered afresh.
On Friday 11th
Nov Jo Flores forwarded 50 emails explaining the corrollation of how the floor
and the lack of air both ‘material damage’ claims for which Mike Ward states in
his correspondence we are recognised as ‘policy holders’ for led to the
businesses being closed down. How trickery was involved and how the strength of
many interested parties in not paying and not admitting liability has left the
situation still unresolved today. To add insult to injury now Mike Ward will
not even comment on the floor or the structural defect. He will not open the
case and has failed the so called independence of the ombudsman. DISP 2.7 is a
joke another nail in our coffin which will prove to be another injustice.
I asked him yesterday
(my mum died on Monday) answer the question on the material damage claim….
He did not!
I asked him three
times and he finally said he is passing it to an Ombudsman… for a final
decision… and that my dear will be the end.
I said I’d get a legal
opinion (got until the 4th Dec) but no legal help so if you are a
GOOD lawyer (and can give a free opinion on all this maddness) and can read
what amounts to a novel reading all this and you live in a world of JUSTICE and
have not gone mad like the bankers with your time and pay then email me jo@spaceshift.co.uk NOW!!!!!
Been there done that wore the t-shirt
Next particulars of claim based on specific 'duty'
The losses and where we were at in terms of children's agenda..
New NAYPIC / Youth Parliament was founded originally in 1979
as (NAYPIC) the National Association of Young People In Care, a National
Voluntary Organisation. Mary Moss, London Development Officer for NAYPIC from
1987-1992, retired from that post to become a volunteer and was voted in as
National Chairperson at a national conference of 1100 members. Like with many
funded organisations, when government funding ceased in 1992, the organization
simply had no money. The three national offices with 9 workers, several
regional management committees, a National Executive Committee and all the
development work that had taken place, including all investigative casework
which involved some of the biggest cases of organised child abuse taking place
in this country, simply vanished overnight. Jo Gavin (nee Mary Moss) and many
other members were determined that NAYPIC would not die away and in 1993 they
re-branded the organisation as New NAYPIC/Youth Parliament.
NN/YP had a new agenda to slowly but surely become self funded
so as never to experience the same fate again.
In 2000 Jo Gavin acquired the lease of the commercial
premises at 104 Cromer Street, which she setup to house the official head
quarters of NN/YP whilst running a commercial business in the premises (under
the name of Scarlet Maguire, at the time a flower shop - turned shortly after
into an art gallery) in order to support the organisation and self fund its
offices. This type of setup is now well recognised as a social enterprise
model.
In 2004 Chantal Cracy became involved in developing this
further. She and Jo Gavin acquired the lease of the commercial premises located
next door to Scarlet Maguire at 106-108 Cromer Street where they setup a
business under the name of spaceshift. The principal activity of the business
was to be used as a multifunctional events space available for short-term hire,
thus further funding the work of NN/YP. Since the premises were fitted for
training purposes, one aspect of the NN/YP development was to setup courses for
young people to originally take place at spaceshift. That project was named
‘The Founders 007’ as its target was to establish the franchising of an initial
114 commercial outlets in London increasing to 2000 throughout the UK as well
as to secure membership of the organisation for all children in the UK by 2007.
NN/YP is governed by a national constitution; it also already
has structures to the organisation involving national offices and workers
placed throughout the UK. It has local, regional and national management
committees. Whilst funds have not been in existence to formulate the
recruitment and resources of these structures, they lay dormant. When the
organisation has the independent funds they need they will once again buy in
the resources and the organisation will be able to operate independently of
government. The reason for the added ‘Youth Parliament’ is because in 1992
young people voted that it was what was needed to create rights for young
people.
The term youth parliament quickly spread from this initial
vote in 1992 and has since become very popular indeed. There are various
versions of youth parliaments, many are just in name where young people are
given token appreciation for having a few token voices on a few token issues.
However NAYPIC was the first to voice the words youth parliament and its
intention is to establish a youth parliament run and governed entirely by under
25 years old members with its own economy.
A British youth economy, independent of government and a
historical change in real children’s rights fought for by NAYPIC since 1979.
- We are a consumer led organisation. We are about providing young
people in and ex-care with a chance to express themselves and to manage
their own solutions to the problems they have identified. Why? Because
History shows, and we firmly believe, that the oppressed must help
themselves. Young people have the power to run responsible, accountable
self-help projects and to buy in any expertise and experience they decide
they need.
- We aim to become self-funding - we are not a charity. We seek investment and seed
money, rather than grants. Young people have the power to generate
satisfying, profitable and sustainable ways to help themselves and each
other without going cap in hand to governments or charities. It may be
harder to get started this way, but once we are up and running, we are not
at the mercy of government cuts or changes in the funding climate.
- We provide creative, exciting opportunities for young
people in an attractive and pleasant environment. The emphasis on creative arts
comes from our belief in their healing power - people who have been
abused* can find it difficult to be good to themselves. Creating a bank of
good memories helps combat self-destructive feelings and depression. Art
and music communicate across all barriers - of culture, language and
mind-set.
- We aim to work towards a Youth Parliament. Why? The name says it all. We
don't know exactly what will result from it, any more than anyone knows
what a child will grow up to be and to do. But we do know that it is worth
nurturing. The Youth Parliament is about creating a public mind shift
about the way we view children and their experiences.
- How change is visualised and realised. We firmly believe that change
has never come about without the power of financial resources. MPs and
their parties all have financial donors and fundraising campaigns. We as a
youth parliament will be slightly different because there are not that
many babies, children and young people to become financial backers. We
will create our own self-reliant economy from scratch. We have one
business model and we will duplicate it. With some good business acumen
and some very determined founders who will also take out loans to have
their own franchise, we will build our own industry, which can in turn
springboard bigger and better business for all babies, children and young
people to have the vote in their very own parliament. The youth parliament
will be the strongest and most independent tool in history to lobby
parliament for changes that will be finally able to protect the rights of
our members, the British child as set out in the UN convention for human
rights.
- Do children need rights? It is the same question as do
workers need rights? Did different sections of society need rights like
women, black people, lesbian & gays, differently able people? Well
some do and some fortunately don’t! Whilst however some do whether they
are a minority or a majority it is really not a question for adults at
this stage to answer. Children are abused by adults commercially through
child porn and snuff movies, children are abused sexually by adults who
are supposed to care for them and whilst these situations, which are
extreme, exist, it is not for us to ask if there is a need it is simply
for us to say when will that need be met and how? An independent economy
will give a voice to the voiceless and we will start to be on the right
tracks to finding the answers from the powerless youth’s perspective.
New NAYPIC / Youth Parliament Proposals
- Youth
Parliament plans are to run spaceshift commercial outlets Nationally and
Internationally.
- To run
fifteen one hour self help groups per week for young people in / ex-care
at quiet times at all our shops.
- To become
a model business to be duplicated in every local authority in the UK.
- To contribute
towards discussions and plans to bring about a Youth Parliament.
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