court claim against insurer

[headphonerob]

Hi,

long time lurker and a massive fan of this website!

Can anyone give me some advice?

I am looking to make a claim under the third party (rights against the insurers) act 2010, against the insurers for my ex-window fitters. The windows fitters have now liquidated, so I have to take this course. The insurer has been nothing but awkward and so I eventually took the matter to the Financial Ombudsman Service who awarded me just £1000, for a claim worth £25k!

Part of the reason for this is that the policy explicitly states that compensation will only be given if awarded by a court (not an ombudsman service). Given the FOS are an alternative dispute resolution to the courts, I thought that the FOS could make a ruling on this part of the policy- but I was told they couldn't. Has anyone else had a similar experience? Any thoughts on this point?

I want to take the insurer to the small claims court, but I haven't got a clue how to present the case and I am so worried that the billion-pound insurance company will hire a hotshot lawyer to represent them! Does anyone have any advice on this matter? Am I likely to get a fair shot against the insurance company's lawyer?

Thanks!!!

[headphonerob]

bump

[des8]

So you have a £25,000 problem with your windows.
The fitters who are responsible have gone out of business so you are bringing the claim for£10,000 against their insurers under the Third party Act.

As long as you word your claim properly and follow the courts instructions you should receive a fair hearing.
Judges generally are (as far as possible) considerate to LIPs and won't allow solicitors or barristers to dominate the hearing.
Small claim hearings are designed for the layman.

If you know your case, and the law, you should be all right if you have a reasonable amount of self confidence

[headphonerob]

des8 thanks for the response. If I were to try and claim £24k from the courts, I guess it would mean I would have to go to a highier court- do you think I would be treated in the same way as you have described above?

Do you have any thoughts about the insurance policy stating that any compensation has to be awarded by courts (for statutory breach claims e.g the consumer rights act)? Do the courts not expect the ombudsman service to deal with such matters as they are an ADR?!

Surely the first thing a court will expect me to do would be to attempt ADR with the insurance company, which in turn should mean that the ADR, in this case the FOS, can make a decision on what compensation I should get?!

thanks again!

[des8]

a £24000 claim would still be dealt with in the County Court, but it would be allocated to Fast Track, which has cost implications if you lose!

The act itself states liability is established only if its existence and amount are established by (b) a judgement or (c) an award in arbitral proceedings
https://www.legislation.gov.uk/ukpga/2010/10 Sec 1 (4)

In this case the amount you are claiming has not been established, so it makes no odds what the policy says anyway.
Can you give a link to the policy wording please?

What was the exact wording of the ombudsman's award?

[headphonerob]

des8 to establish the amount, do I need to get an expert witness to state how much I should be owed?

The policy states:

We will pay You
(a) up to the Limit of Indemnity for Your legal liability to pay Compensation and
(b) for Your legal liability to pay Costs and Expenses
in respect of accidental
(i) Personal Injury
(ii) Damage to Property
(iii) obstruction trespass nuisance or interference with any right of way air light or water
which arises in connection with the Business and which happens within the Territorial Limits during the Period of Insurance

Costs and expenses are defined as:

(a) Fees for Your legal representation at
(i) any Coroner's Inquest or Fatal Accident Inquiry
(ii) proceedings in any Court of Summary Jurisdiction arising out of any alleged breach of statutory duty
(b) Costs and expenses incurred with Our written consent
(c) Any claimant's legal costs for which You are legally liable


The FOS stated:

A court has not awarded damages from the holder of this policy to Mr X. And neither does he have legal costs which it’s been established the policy holder is legally liable. I don't think this section of the policy provides the indemnity that Mr X is looking for.

[des8]

The policy is evidence of a contract between the insurers and the window fitters.
The bits you have posted point to this policy being a Public Liability policy.

You haven't said what your claim is, but I am guessing it is for bad workmanship.
This would not be covered under a public Liability policy, but under a Professional Indemnity Policy.

Unless my assumptions are incorrect, you will discover that you have no claim against the insurers (and this is basically what the FOS have said)

Could you give more details about your claim, and a link so we can see the full policy wording?

[headphonerob]

The policy is evidence of a contract between the insurers and the window fitters.
The bits you have posted point to this policy being a Public Liability policy.

You haven't said what your claim is, but I am guessing it is for bad workmanship.
This would not be covered under a public Liability policy but under a Professional Indemnity Policy.

Unless my assumptions are incorrect, you will discover that you have no claim against the insurers (and this is basically what the FOS have said)

Could you give more details about your claim, and a link so we can see the full policy wording?

Yes the policy was between the window fitters and insurer, but as they are liquidated, the 3rd parties rights against the insurer's act, means that the insurer must now treat me the same as the window fitter.

Yes the claim is for bad workmanship, or put simply under the consumer rights act, the work was NOT done with reasonable skill and care.

But the policy says that it will pay out for statutory breaches, which is what the CPA is.

Costs and expenses are defined as:

(a) Fees for Your legal representation at
(i) any Coroner's Inquest or Fatal Accident Inquiry
(ii) proceedings in any Court of Summary Jurisdiction arising out of any alleged breach of statutory duty
(b) Costs and expenses incurred with Our written consent
(c) Any claimant's legal costs for which You are legally liable


Can anyone tell me whether it is possible for a judge to decide on the meaning of a contract clause? Rather than spend 4.5% of my claim, could I not ask a court judge to basically tell me what their interpretation of the above clause is? Surely that would be a good way forward?

[headphonerob]

anyone else got any pointers?

[des8]

Sorry, I missed you last post (alerts don't always work)
Unfortunately I do not think you have a valid claim against the insurers
Your claim is against the window fitters because of poor workmanship workmanship.
That would be covered by a Professional Indemnity policy
It seems you are trying to lodge a claim against the fitter's Public Liability policy (a wholly different animal) but so we can be sure please post a link to the full policy wording.