Help with drafting description for 'breach of contract': 'Letter Before Action'

[Mack65]

Hello All

I am new to the Legal Beagles!

I recently had two complaints upheld by the Financial Ombudsman Service (FOS), a process which went on for over a year.

I am seeking help with drafting clear description of a 'breach of contract' stemming from claims I made against two insurance policies held with different providers. Both claims were declined. I filed complaints against both insurance providers, based on that the rationale for declining my claim was contrary to the policy wording. I took my complaints to the FOS who upheld my complaints citing that the respective insurance providers were wrong in applying an exclusion clause when they shouldn't have - this had been the cornerstone of my complaint all along but the insurance providers were taking no notice. I now intend to serve a 'Letter Before Action' citing (i) breach of contract and (ii) negligence. I have done a fair amount of homework, but I still cannot get my head around clearly structuring a description of the 'breach of contract' so that it makes legal sense. I have learnt that I need to link such a 'breach' to the specific clause in the contract document which I appreciate, but I could do with viewing an example.

The second query I have is around 'negligence' - am I correct to assume that a 'breach of contract' can give grounds for claiming 'negligence'. If so, how so, please?

I would welcome as well as appreciate your feedback please.

With many thanks.

Mack65

[R0b]

Hello

Here's a key question for you - did you accept the Ombudsman's decision?

[R0b]

In writing?

[Mack65]

Hello

Here's a key question for you - did you accept the Ombudsman's decision?

Hello Rob & thank you for taking the trouble to get back to me. Yes, I accepted the Ombudsman's decision. But before I did, I wanted to know if doing so would interfere with my consumer rights, the Investigating Officer at FOS was unhelpful. So I contacted a Solicitor from a legal helpline offered with my house hold insurance - the Solicitor said that signing the FOS acceptance form would not jeopardise my statutory consumer rights.

Sorry for the long answer, but the answer to your question Rob is YES.

Many thanks once again. Mack65

[Mack65]

Hello Rob - my brain has been ticking all the while since I read your earlier question - you're not going to tell me that, by accepting the Financial Ombudsman's decision in writing, I have signed my consumer legal rights away? Have I? I cannot wait to hear from you. Many thanks.

[des8]

If the consumer accepts the FOS decision it becomes legally binding on both parties

[R0b]

Hi Mack65,

The reason why I ask if you accepted the Ombudsman's decision is because the decision is only legally binding between the parties if you had accepted within the timeframe given, normally at least 14 days.

Now, here's where things get a little tricky. How you go about enforcing an Ombudsman's decision will depend on whether it is a money award or a direction for the insurance company to do something.

If it is a money award, then the right procedure is what we call a Part 8 claim, which is a claim that does not involve a substantial dispute of fact. Why, might you ask? Because the dispute has already been decided by the FOS and under Section 288 of the Financial Services and Markets Act 2000 (FSMA) this clearly says so as the decision is final and binding.

If you issued the usual Part 7 claim i.e. a claim using Money Claims Online, then you are effecting starting fresh proceedings which entitles the insurance company to have another stab at defending it. The short answer is do not do this - it is the wrong procedure.

If the Ombudsman made a direction ordering the insurance company to do something, then you would need to apply for an injunction. Again, the facts have already been disputed so it should really be a Part 8 Claim.

So we need to know what exactly the Ombudsman decided before you go any further - letter before action however is the right step forward though as the starting point.

I'm not sure what relevance breach of contract or negligence has and I think you would be barking up the wrong tree if you tried to claim for that. I would also suggest you have a read of the attached which explains how the decisions are enforced.

I should also point out that applications to enforce an Ombudsman's decision is rarely heard of in the County Court and it is possibly that the district judge's have no idea about how these work and it is therefore imperative that you follow the correct procedure. If you don't, you've already got an uphill struggle.

[Mack65]

Hello Rob & thank you for your helpful response once again. Clearly it's a steep learning curve for me but I am acutely aware that the legal arena has no room for experimentation. The situation is as you describe in your 5^th paragraph i.e. the Ombudsman made a direction as follows:

my final decision
For the reasons given above, my final decision is that I uphold this complaint. I require {named insurance underwriters} to reconsider Mr M’s claim without reference to the exclusion. Under the rules of the Financial Ombudsman Service, I’m required to ask Mr M to accept or reject my decision before 17 November 2018.

Having read your helpful advice, it is clear that my thinking was hopelessly flawed. I thought I would use the FOS findings to help support the contention that the insurance companies 'breached' the terms of the contract and were negligent. Both companies had applied an exclusion clause with no good cause to do so, which had been the cornerstone of my arguments throughout the entire convoluted complaints process.

I thank you profusely for your help. I need to re-think this, including looking into whether I can retract the written acceptance because I feel so strongly about wanting to at least, send the two insurers involved a 'letter before action'. Certainly I would have made a costly mistake had you need been there to clarify these issues for me.

I believe the objective for taking this through the Courts was to get compensation which reflects the hardship I went through as a result of being denied the policy benefits.