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how to obtain information before going to court (house claim against developer)


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I need to issue a claim against the developer of my new build house because the insurer is unwilling to settle my claim.

 

The insurer accepts there are defects which have resulted in the damages but dispute that this is major damage and hence not covered by the policy.

 

The defects are a result of the developer not meeting the requirements of the insurer's policy. The insurer has then not surveyed the property properly and the defects were not seen before they issued the policy certificate.

 

My claim is based on the fact that the developer should have built the home in a workmanlike manner and with proper care and attention. They should have met the requirements of the policy. The policy played a big part in my decision to buy the house as it was marketed heavily for 'peace of mind as to the quality of the new home'.

 

The insurer says I have no contract with them and a barrister's opinions agree with this. It's because I bought the house from the developer and is is them who paid the insurer for the policy, i.e. I did not pay any consideration for the policy. My argument is that I paid for the policy as part of the house price but this is not accepted as a strong argument to sue the insurer.

 

The damage will cost around £20,000 to rectify. My claim against the insurer has been ongoing for 3 years and 2 months and is currently at the FOS where the insurer has declined two decisions. The final decision is yet to come. The FOS has upheld my claim and asked them to pay for the repairs and some compensation.

 

Before it went to the FOS, the insurer wasted 1 year and 9 months as they wouldn't accept my claim.

 

The developer will not correspond me, even through my MP, and refuses to discuss anything to do with the house. They have said they have a 'substantial file' on my property and I need to see what information they hold before I issue my claim.

 

An alternative could be to sue the insurer but as I said the barrister says I have a weak case against them even though they provided the policy and accept there are defects and damage as a result of the developer's failure to meet their requirements.

 

Thanks.

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maybe wait to see what the 'final decision' is first? and what they do after that?

there could be cpr 31.16 etc, and cpr 34.1, for eg if relevant?

Edited by Ford

IMO

:-):rant:

 

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maybe wait to see what the 'final decision' is first? and what they do after that?

there could be cpr 31.16 etc, and cpr 34.1, for eg if relevant?

 

I'm thinking ahead ....

 

Maybe the Ombudsman will find in my favour (third time) but the insurer may reject the decision (even though it's legally binding if i accept it). What then?

 

Maybe the Ombudsman will change the previous two recommendations (unlikely but can happen). Then I would have to raise a claim.

 

I've a new build house with extensive damp and black mould all over bedroom and landing ceilings and corners .... due to the developer not properly ventilating the internal roof space. There is a specific clause in the requirements for them to ensure this does not happen. The insurer accepts this defect is there and that it has resulted in the damage. They're just saying it's not covered.

 

The developer has been negligent by not meeting the specific requirement. The insurer has been negligent by not surveying the house properly before issuing the policy so that the defect could have been noticed and rectified. Neither are bothered because it affects me, the homeowner, and not them. The insurer chairman has stated in the policy introduction (before the terms) that ALL properties are inspected by THEIR OWN surveyors. Now the insurer says this is always not the case and a few properties might be inspected from a batch and all are signed off as meeting the requirements. The requirements document has a page with a checklist for surveyors to inspect the internal roof area. So why was this not done?

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Maybe the policy can be assessed for fairness under UTCCR, even though the insurer says its not covered by that legislation.

 

Nearly everything is excluded and no provisions are made for the sort of damage I have, i.e. with the developer not meeting requirements and the insurer not inspecting properly. This is unfair against me because it affects my home.

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The difficulty for me is that the policy seems to have been setup in a way which is advantageous for the developer and insurer but I may have no recourse under it. It is something done for the benefit of the homeowner by other parties who have no intention of meeting their full obligations or enforcing it against one another. Even the barrister was surprised that these policies have got away with being set up in this way.

 

When I bought the house, did the policy pass to me along with everything else from the property?

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if poss, wait for the final decision (which may likely to be in your favour). and see what the insurer does. if they refuse to abide then that would add weight against them. would the fos take up a claim against them in this case? or take some further action against them for refusing to abide by their subscription? otherwise could join the insurer in a claim?

IMO

:-):rant:

 

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if poss, wait for the final decision. and see what the insurer does. if they refuse to abide then that would add weight against them. would the fos take up a claim against them in this case? or take some action against them for refusing to abide by their subscription? otherwise could join the insurer in a claim?

 

from what I know, it is up to the consumer to take court action to get the FOS decision enforced.

 

at this stage the insurer might defend again.

 

which means even though an FOS decision is legally binding on the firm, there's nothing much the consumer can do if they don't accept it.

 

but i'm sure the FOS will try and help how they can but ultimately they cannot force the insurer to pay (even though it's legally binding).

 

i don't get it ....

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ok

if their decision is deemed to be legally binding once accepted by consumer, then perhaps join them as a co-defendant when/if the time comes? and introduce the fos evidence?

Edited by Ford

IMO

:-):rant:

 

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having a quick look

says any registered money award or direction by the fos can be enforced through the courts? against the 'respondent'?

Edited by Ford

IMO

:-):rant:

 

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says any registered money award or direction by the fos can be enforced through the courts? against the 'respondent'?

 

yes, the claimant has to apply for an injunction from the court ....

 

but this is all costs time and money .... which can be saved by the respondent simply accepting the ombudsman decision.

 

good news from what i've read, the insurer cannot appeal against the ombudsman decision .... only take them to court with a judicial review .... the consumer still has to be paid (or whatever the ombudsman decided).

 

once an ombudsman has made their final decision ... the court cannot make another decision on the case.

 

i hope the current ombudsman decision stays .... the insurer is unlikely to want to spend much more money (£100k?) in a JR rather than pay my claim (under £15k). But then again companies like this have been known to throw money away rather than pay the consumer.

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there you go. if the fos decision is favourable, and you accept, and they refuse, then you have a valid claim against the insurer. :)

 

yes, but i'm worried about the insurer refusing to accept the decision ... which would mean more delay for me.

 

and more worroed about the Ombudsman changing the current position (to pay my claim in full and compensation) ... which would mean waiting a long time again to take it through court.

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yes, it may mean more delay. but at least you now know who to claim against with authority if needs be.

 

yes, they may change. but, you say that they have held twice that the insurer must pay. so, hopefully it will still go in your favour.

IMO

:-):rant:

 

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yes, second time the FOS actually recommended more for me .... more compensation and upheld a full head of claim (which the insurer had paid about a fifth for). There are 5 heads of claim, the insurer split each damage into a separate head of claim and applied a minimum claim value to each (and this as an excess when there is none). The policy has a clause for a minimum claim value but nothing about a claim being split into a claim for each damage or anything for an excess. In their way, some heads of claim will obviously fall below the minimum claim value and don't need to be paid (they think).

 

Two of the heads of claim are from the first two years and a lower minimum claim value applies (the developer did not carry out the repairs).

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the bank complaints?

 

there is only one complaint here .... with 5 heads of claim ... this is how the insurer separated each damage.

 

two I let go .... the FOS upheld two out of three heads of claim and then all three .... and recommended compensation (this claim has been ongoing for 3 years 2 months).

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oh i see. the final decision to come is re the final 'head'?

but, you have said that they already held that the insurer must pay for the repairs and compensation? which 2 decisions were rejected? and which one(s) have you accepted? or is it overall?

Edited by Ford

IMO

:-):rant:

 

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oh i see. the final decision to come is re the final 'head'?

but, you have said that they already held that the insurer must pay for the repairs and compensation? which 2 decisions were rejected?

 

the adjudicator recommended they pay 2 out of 3 heads of claim .... the third they paid a fifth of the value as 'compensation' but not the actual head of claim. The insurer rejected this.

 

it's waiting for an Ombudsman final decision. Before that it has been reviewed by a junior Ombudsman and he has recommended they pay all 3 heads of claim .... and increased the compensation award. I'm not sure if this includes my time and costs over the years but is definitely for the 'distress and inconvenience'. The insurer has again rejected this.

 

now it will go to a full Ombudsman and get a final decision which could be either of the last two recommendations or different (in which case my claim will not be upheld).

 

but i cannot see how the insurer can deny liability based on the definition of 'major damage'. They accept that there are defects which have resulted in damages but say these are not 'major damage' which the policy covers but only 'damage' which it doesn't. The policy states 'major damage' as something requiring 'substantial' repairs and in this case I think £15,000 or more is definitely substantial. Plus it's all as a result of the developer not meeting the requirements (hence the defects) and the insurer not surveying the property properly (hence they missed the defects). They've both been negligent.

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I bought a new build house to stay away from these problems and i've had to live with extensive damp and black mould (the insurer loss adjuster's statement) for the past 4 years. It was building up before that. The last 3 years 2 months because of the insurer's refusal to pay my claim.

 

Both the developer and insurer say black mould is not dangerous to health but I think it is extremely dangerous to people with breathing problems (I have 2 people under 16 in the house with asthma). This does not seem to worry them.

 

Both the insurer and developer have even said that rather than spending time chasing them two, I should carry out the repairs if i'm so worried !!!

 

For one thing, I don't have the money and secondly they'd only use it to their advantage and say there's less or no damage to pay for. They doing this with the third head of claim which the FOS changed on because i'd carried out the repairs (they were a danger to health and safety). The insurer says this has prejudiced their position because they can't see the damage. But they had over 2 years to see it before I repaired.

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the FOS has also said the loss adjuster's report was done only to decline the whole claim .... they did not carry out any survey or look at the requirements. They did a walk around the house, looked around, and made a report. They incorrectly applied the minimum claim value and excess. They incorrectly used exclusions (which the insurer now accepts cannot be relied on).

 

it's been an uphill struggle for me over the past 3 years .... if i hadn't persevered the insurer would have got away with it.

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Just remember that with CPR 31.16 the presumption is that the Claimant pays the Defendant's costs unless the Defendant acts so unreasonably that a Court decides to reverse this.

 

yes. costs of app'n and compliance. important point. for reference cpr 48.1

also Kneale v Barclays Bank HC 2010 provides a relevant discussion of 31.16 with reference.

Edited by Ford

IMO

:-):rant:

 

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yes. costs of app'n and compliance. important point. for reference cpr 48.1

 

I've heard these costs can be quiet big ... but why is the claimant paying for something the defendant should disclose anyway? If they have been unreasonable, what then?

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If the DJ finds the Defendant acted unreasonably they can Order the Defendant to pay the Claimant's costs.

 

Its easy to establish unreasonableness in PI claims as breach of the pre action protocol is enough.

 

Not sure what would class as 'unreasonable' in your case. Give them 30 days to disclose maybe?

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