MCE Insurance cancelled policy on a technicality - Conviction quashed ICOBS

[BankFodder]

Yes, I think that there is quite a lot of hope - but it will depend on whether you are prepared to take some serious action.

 

Please start reading up about ICOBS and monitor this thread for a fuller response later

[BankFodder]

I'm sorry to say that the position in the approach outlined in the above two posts is wrong.

 

The situation is the insurance company is not allowed to deny liability where the defect or breach that they are referring to does not materially affect the risk.

 

The failure to provide a copy of the CBT clearly has had no effect on whether or not you would have had the accident. It would be nonsense for them to try and say so.

 

If you didn't have a CBT then this could materially affect the risk because it would mean that you probably weren't qualified to drive and didn't have the knowledge or experience to do so. However, this is not the case here.

 

Therefore in terms of any withdrawal of cover, the insurance company is in breach of contract.

 

Additionally, the insurers are bound by ICOBS. ICOBS requires them to treat you fairly. There is also a very clear requirement in ICOBS that they are not entitled to withdraw, simply because of some administrative defect or failing – such as you failing to notify the insurer of a loss within 24 hours or 48 hours or some other stimulated time in terms and conditions, or such as you failing to provide them with a copy of the CBT – assuming that there was a valid one in force at the time – and we understand from you that there was.

 

Furthermore, although it is not specifically mentioned in ICOBS, I have no doubt that the requirement of the insured to treat you fairly means that they cannot unilaterally and without any notice and without good reason withdraw insurance cover – especially when the insurance policy has been fully paid up. This is clearly extremely unfair and also it is prejudicial not only to you but also to any third party who might be involved in an accident with you and how might need to claim from your insurance.

 

The question now is how do you deal with this. You can go to the Financial Ombudsman Service however, I can tell you now that the FOS is not qualified to deal with ICOBS problems – in exactly the same way that they are not qualified to deal with BCOBS problems. The reason for this is that they remit of the FOS is to seek a solution which is fair to both sides. However, ICOBS and the other FCA regulations are far more one-sided than that and they simply require that the insurer or the bank or the lender et cetera treats their customer fairly. If you look at the FOS website, you will see scarcely and maybe no reference at all to ICOBS, BCOBS, MCOBS, or any of the other FCA regulations. I believe that the FOS is fully aware that they are not able to apply these regulations and so therefore they steer clear of them partly because they want to save themselves embarrassment and also, because I feel that they don't want to stir it up for the companies which are bound by those regulations.

 

However, if you want to do it that way then you could go to the FOS but I don't reckon your chances very much and also I expect that it would take quite a long time – maybe anything up to 12 months or more. During this time of course you will not have your insurance, you will have your bad record, you may be convicted before the criminal court and all the rest of it.

 

I'm afraid that the only way to deal with this is to write to the insurer very certainly very aggressively and assert your position – but also make it clear to them that if they will not reinstate your insurance and also write to the police and tell them that your insurance was in place – and also write to the court where no doubt you will be tried for this, then you will start a County Court claim against them and without any further notice.

 

Believe me, you won't be able to bluff this one out. If not interested in doing this thing go to the FOS but it will cost you dearly and frankly I put money on the FOS refusing to help you. They are limp wristed and helpless at the best of times and in something like this they are likely to show their loyalty to the industry because to find against the insurer here with stirring up for all the other people who have had their insurance arbitrarily cancelled simply because of some technical problem.

 

If you want, we will help you. We have had lots of situations where insurance companies have arbitrarily and peremptorily cancel peepers insurance and I think it's outrageous and I think it's bullying. However, nobody so far has decided to stand up to them. Would you like to be the first?

 

We will help you but you will have to do your own homework and you will have to make sure that you understand that it is your case and that you will have to have the energy and the enthusiasm for it.

 

It's not difficult but you will have to be persistent and you will have to maintain your energy and your interest. Incidentally, I'm not saying that this is going to be a quick solution either, but it is your best chance.

[BankFodder]

Agree totally with bank fodder. The insurance company is totally in the wrong if as you state you have cbt.

 

I wouldn't go so far as to say that the insurer is totally in the wrong but their approach to it is wrong.

The insurer is obliged by statute to act reasonably, to treat the client fairly and not to deny liability or to withdraw cover simply because of a technical administrative breach of a contractual term.

The requirements of the statute take precedence over the contract and have the effect of invalidating those terms which are counter to the statute and also to render unlawful any industry practice which does not comply with the statute.

 

I understand very well that it is common practice for insurers to cancel - but that does not mean they are in the right.

 

Of course, the client should have complied with the contractual requirements to furnish a copy of the required document - but as long as there was a document in force, the failure to provide it has not added to the risk and has not been the cause of the accident.

The insurers are acting unlawfully.

[BankFodder]

The OP seems to have disappeared. He made on post here and 2 or 3 on MSE and on Pepipoo and hasn't reappeared to find out answers to any of them.

A shame because I think that he has a high chance of success and it would have been an extremely interesting and useful case

[BankFodder]

You're the one who becomes the loser.

 

We become demotivated, we forget what happened, we go on to other people who are more engaged with the forum.

[BankFodder]

I would be interested to know if you find the procedure that you have referred to. I'm not aware of it – although I have to say that I find that is extremely reasonable.

 

I think that you should have a look at ICOBS. All insurance companies are regulated by the FCA and under the FCA regulations – ICOBS, they are required to treat their customers fairly. Especially relevant to you is a requirement that they do not cancel insurance simply because of some administrative failing or breach by you. Despite this rule, insurance companies routinely do this and quite frankly it is a scandal that nobody does anything about it because it means that people are – theoretically – left an insured and that means that not only are they potentially left breaking the law in a very serious way but also if they kill or injure anybody in an accident, then that victim is also left without any financial redress.

 

When insurance companies cancel and insurance on the basis of an administrative breach by their customers, then they are effectively breaking the law.

 

When did you send the SAR? When is the return date for the SAR? What date in February is the case scheduled for?

[BankFodder]

You should have sent the SAR off by now. You don't seem to appreciate the importance of it. Send it today. Send it accompanied by cheque so you can keep a better eye on what happens to it. Send it by guaranteed next day delivery – and keep all receipts.

 

Have a look at ICOBS and specifically have a look at https://www.handbook.fca.org.uk/handbook/ICOBS/8/1.html which deals with the circumstances in which an insurer can terminate a policy.

 

You better start understanding this very thoroughly because you are unlikely to get the results of your SAR in time and you will need to produce this as part of your defence. I can't remember what the appeal rules are but I suspect that you will need to disclose any new information to the other side meaning the prosecution. I suppose that is pretty unlikely but quite frankly it would be enormously helpful if you able to contact them and discuss it sensibly by telephone and point out them that there is important information here and that wasn't disclosed to the trial judge – the magistrate of the time. Tell them that this is not new facts but it is law which both sides were unaware of and therefore it needs to be taken into consideration.

 

Frankly it would help you enormously if you would be prepared to begin a legal action against the insurer under ICOBS. If you had a County Court claim in process on precisely this point, then I would think it would help you enormously when talking to the CPS and also talking to the court.

 

Although it says that the the date of the appeal cannot be changed, I think that you have got good grounds for trying to ask them – and try to talk to the clerk of the court. These people are pretty reasonable although busy – but if you explain the situation and also explained that there is an important point of law which needs to be put before the judge and you would like to provide advanced documents of it, then the clerk may be prepared to receive them – as long as the CPS gets a copy as well.

 

If you are unable to talk to the CPS then I think that you need to write a letter setting out your grounds of appeal. Have you done this at all? What did you put in your appeal notice? Please can you post up a PDF of it here

[BankFodder]

I don't know if this is possible, but after you receive your sar documents, if they include the voicemail, telephone record and email, you could contact the telephone and email providers and ask if indeed that call and email were made.

If you send them the record and email they wouldn't breach the dpa just by telling you that they exist or not.

But I bet they would just ignore.

That's where a solicitor letter would come handy.

If insurance company forge an email and produce that to CPS to be used as evidence they would be risking a serious charge.

I think they would probably say that email and telephone recording have gone missing and that should be your best defence.

However I don't think the cps would be interested in any of this, as far as they're concerned it's your responsibility to make sure you are insured.

They'll probably tell you to start legal proceedings against the insurance company.

Unfortunately you are an easy tick in their book.

 

Even if the CPS aren't interested, if you bring this up before the judge, then he would be bound to take notice. I'm not talking about the communication here. I'm talking about the use of an administrative detail as a basis for cancelling the policy. If the insurance company have acted unlawfully then the judge must take notice and must deal with it.

 

Ayma, have you posted on CAG before under a different name as this rings bells ?

 

Really? I would be interested to know about this as well in that case.

[BankFodder]

We certainly have lots of stories where insurance companies have cancelled insurance because of some administrative defect. No one has ever taken them to task about it and yet, to my mind, it is definitely in breach of the ICOBS rules

[BankFodder]

I suddenly realise that we don't seem to have been told who the insurer is. Why is it that people always posting complaints about insurers, motorcar dealers, all sorts of people – that they never want to name them.

[BankFodder]

This is the thread i was thinking of. Seems very similar !

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?458189-Do-I-have-any-hope

 

Yes. Looks like a dead ringer to me. Well I hope that the OP doesn't disappear again because it seems to me that they need to start taking some urgent action. A pity he/she abandoned this all those months ago.

[BankFodder]

so are you suzuki110

and that previous thread?

 

 

dx

 

I think the answer is probably yes.

 

I've merged the two threads for context and completeness.

 

I have now merge the two accounts. Suzuki110 is deleted

[BankFodder]

Just send it. It should have gone ages ago.

 

Have you read up on ICOBS? Tell us what you understand about it.

[BankFodder]

Are you recording your calls? I suppose the answer is probably no you're not.

 

Call them again but this time record the call. Ask them about the deadline and see if you can get them to repeat once again that you will have to wait 60 days. If you can get this recording, it will be extremely useful. Come back here and tell us.

 

I don't think there's any point in sending SARs to anybody else.

 

Have you been reading up on ICOBS?

[BankFodder]

In that case well done - and pardon my cynicism!!

 

So you actually have the 60 days comment recorded? Did you tell them that this was against the law and that the real deadline was 40 days?

[BankFodder]

Okay, the recording is not as useful as it might have been in that case.

 

Now just to double check, can you assure us completely that in fact you were fully qualified to drive that vehicle at the time? Meaning that you had all tests or documents or insurance et cetera in place, any learner signs, et cetera et cetera so that we can be absolutely certain that the only flaw was that a certificate had not been supplied to the insurer within the deadline.

 

You will have to swear to this in court.

[BankFodder]

Yes. You should send them a reminder letter. You should send it immediately. You should have sent it before.

 

I'm sorry to say but the way that you are popping in and out of this thread is not helping you. I see that UncleBulgaria suggested to you that you send an SAR right at the beginning of 2016 – a year ago and yet you did nothing. We were all on board to help you then and you let it go until eventually you were prosecuted by the police. Even in respect of this, you never came back to us because we could have suggested a way of defending yourself which would have avoided the problems of being convicted and then having to go for an appeal. You eventually send an SAR to the insurers but you haven't been on their case so that once again everything is getting out of hand.

 

Please can you remind us what date the appeal is.

 

Also, in my post above – number 59 – I asked you some questions just to double check your legal position at the time that this all happened. You never responded and frankly I would like you to do so please.

[BankFodder]

I'm sorry that you're having such a bad time of it – but we are trying our best to help you and once again you really have made things much worse for yourself by not dealing with this right at the beginning when we are helping you the first time.

 

 

 

I think you had better start checking your spam box and making sure that you are in control of the messages you receive. They are not entitled to ask this question or to impose any conditions. I think that it is about time that you started taking control of the situation – although you still haven't confirmed the date of the appeal as I asked you earlier. Please would you do this.

 

I suggest that you write a letter

 

Dear XXX

 

Reference XXXX

 

Thank you for your letter of the XXX date asking for the reasons as to why I have submitted a Subject Access Request to you. As it happens, your message went into a spam folder and I have only just discovered it. However, I am warning you that you are not entitled to ask this question or to make any conditions in respect of my SAR. The fact that you have now breached the 40 day deadline puts you in violation of your statutory duties under the Data Protection Act. Furthermore, your attempt to delay the disclosure or to impose conditions or to ask questions about it which have resulted in your breach of the 40 day statutory deadline, are also a breach of the Data Protection Act.

 

On the XXX date you peremptorily and unilaterally withdrew insurance cover from me and thus putting me in a position where I was prosecuted by the police for driving without insurance and found guilty. I'm sure that you must realise that under the Insurance: Conduct of Business Regs which were made by the FCA pursuant to the Financial Services and Markets Act 2000, you have a statutory duty to treat me fairly. Included in those regulations are a requirement that you are not entitled to decline or to withdraw insurance simply because of some technical/administrative breach. Despite this, this is precisely what you have done and by so doing you have acted unlawfully and you should understand that I shall shortly be taking action against you.

 

Your deliberate delay and your failure to provide me with a statutory disclosure under the Data Protection Act is also an example of unfair treatment and so this is also in breach of the ICOBS requirements in addition to being breach of the Data Protection Act.

 

I am informing you that my conviction before the XXX magistrates for driving without insurance is now subject to an appeal before the Crown Court sitting at XXX on XXX date. I shall be providing the presiding judge with a copy of the ICOBS regulations and I shall be explaining to the judge how the offence with which I have been convicted only occurred because you acted unlawfully towards me by cancelling my insurance for a technical breach.

 

I fully expect that as a result of the allegations I shall make in open court, that my appeal will be successful and I also fully expect that the court will wish to make an order in respect of your company which may eventually require you to appear before it. This will be in addition to a civil legal action which I shall be bringing before the County Court once the whole matter has been dealt with in order to obtain a judgement against you and also compensation. My intention is that once I have the judgement, I shall be submitting it to the FCA and also a copy to the Information Commissioner as the basis for formal complaints.

 

I also intend to submit the results of my successful appeal to the Crown Court to the FCA as well.

 

I have tried to deal with you over this for a year. You have been completely uncooperative. I have now attempted to exercise my statutory right to full disclosure of my personal data and you have been completely obstructive.

 

You may like to know that the appeal date was originally set for November 2016. The court agreed to postpone that date upon my request until the day in February because I informed the court that I had supplied you with an SAR and that it would serve the interests of justice if the court was prepared to wait until the 40 day limit had expired and you had made your disclosure.

Your obstructive behaviour and your breach of your statutory obligations has now meant that the courts goodwill in postponing the appeal date has been wasted. You can be certain that all of this will be explained to the court. I suggest that you might want to pass this letter to your lawyers.

 

If you want to try mitigate your unlawful behaviour, you may well wish to let me have the statutory disclosure by return of post. There is not much time remaining. In any event, all of this will be brought to the attention of the Crown Court and also eventually to the County Court when I make my claim for compensation.

 

Yours sincerely

Please will you let us know if this letter represents the truth and if you are happy to send it. If you are happy to send it then I suggest that you send it by email and also by first class recorded delivery post.

 

Also, – not for the first time – I suggest that you start keeping in closer contact with this thread

[BankFodder]

In that case, please see my suggested amendment to the letter in red above

[BankFodder]

I added a line pointing out the realities of 6 points on my license causing my insurance premium to triple to over £2000 a year causing serious financial strain and hardship. Plus declaring insurance being cancelled added to this figure.

 

The fact that many people shy away from employing anyone with that many points, significantly reducing job opportunities/prospects. My main line of work at the time is/was in deliveries or sectors surrounding it. And the truth about this is I was recently refused jobs due to the points.

 

I wish you wouldn't.

 

 

 

I would also contact the ceo and request that they contact the cps and explain that they had made a mistake in cancelling your insurance.

This might, and only might bring the case to a closure and get your licence clean again.

It all depends on them playing fairly or again hoping that you make empty threats.

They know they screwed up that's why they asked for a schedule of loss and are opening a complaint following the sar.

As other said, you should give utmost priority to this now otherwise you'll end up with a record that is gonna cost you dear for ever.

 

I think that it would be unhelpful to write any more than what I have suggested above. Things have moved on now and it is too late for all of this at the moment.

 

All of this kind of thing can be raised after the appeal when dealing with the insurance company in respect of their civil liability and the question of compensation.

[BankFodder]

Just to update here:

 

A Grounds of appeal/summary of position has been drafted and sent to the Snaresbrook Crown Court where the appeal is listed to be heard on 3 February. A copy has also been sent to the CPS who have acknowledged receipt.

 

A copy has also been sent to the insurer who have remained silent. They are also in breach of their DPA obligations to make a statutory disclosure within 40 days.

 

The grounds of appeal are basically that the insurer acted unlawfully contrary to ICOBS in cancelling the insurance on a technicality and therefore the cancellation is void and the insurance was in place.

 

On the question of whether the OP was notified, we have said that we are unable to produce evidence because the insurer is not honouring their DPA obligations, but in any event whether or not a notification happened, it does not affect the illegality of the cancellation and therefore there cancellation is still void the insurance is in place.

 

In my view these are winning arguments. The only problem is that they were not put forward at the time that the original grounds of appeal were filed and so technically, we are out of time to file this grounds. We will have to see whether the CPS objects and what the court says.

 

If the appeal is successful then it is highly likely that there will be a County Court action under ICOBS against the insurer. If the appeal is successful, then it is almost 100% certain that an ICOBS County Court action against the insurer will succeed as well.

 

That's the plan…

[BankFodder]

Here's a teaser:

 

There's been an extremely interesting development in this case which we will announce in the next two or three days – so stand by.

[BankFodder]

We will put up some correspondence in the next few days, but the insurers were written to last week and threatened and urged to consider their position and to provide some documentation to the Crown Court sitting on appeal that the insurance was in fact in place.

 

This seems to have worked. The correspondence has finally managed to find its way to the compliance officer who presumably is somebody with a little bit more savvy and a bit more of a sense of responsibility and probably more aware of the necessity for reputational management and the drones. An email was received today asking for a few further particulars and with the promise to provide a letter of indemnity. The letter of indemnity has now been produced which shows that the OP was in fact ensured that the time of the accident.

 

Clearly the insurer is being evasive. The insurer statement is very bland and refers only to the day of the accident. However, we think it should suffice to persuade the court that there is sufficient doubt to quash the conviction.

 

After that, we will begin an action against the insurer which will disclose everything and hopefully it will eventually raise issues as to how many others of their clients have also had their insurance policies peremptorily cancelled with consequential risk to the innocent victims of accidents.

[BankFodder]

They've also eventually made the statutory disclosure under the DPA. MCE insurance company will also in breach of the DPA obligation and they had to be threatened and forced to make the disclosure as well. It seems to me that this is the company which is not sufficiently invested in transparent and ethical practice. The subject access request disclosure has revealed only that apparently they attempted to contact the OP to warn him of the cancellation and when they are unable to make contact they gave up and they simply cancel it anyway.

 

As I have already indicated, it concerns me enormously because one wonders how many other of their customers have had their insurances cancelled on unlawful technical grounds and also how many innocent victims of accidents suddenly found that they are having to take action against an apparently uninsured driver when in fact it is simply the reckless and irresponsible and unlawful cancellation by an insurer – which apparently is based in Gibraltar – not that that puts them out of reach.

 

I have no idea what all the losses are yet, and we will start going through all of that after the appeal this Friday. The CPS have been written to and they have been sent a copy of the letter of indemnity and we are hoping that they will do the sensible thing and call it all off with a minimum amount of fuss and trouble to everybody including the court. On the other hand, if there is a jobsworth in the CPS then they may still try on. If they do then I'm certain that there will be a further appeal to the High Court. We'll see.

 

Also I have to comment on the lack of engagement by the OP. He certainly doesn't have the right attitude to have dealt with this because he could have brought it all to an end a lot earlier. On the other hand I now know something of his circumstances and in particular as a result of this conviction he has been forced into a situation where he does not have easy access to a computer at reasonable times of the day – and that is why I am posting up in his stead, for the moment.

 

I sincerely hope that if the appeal is successful and also if a County Court action is successful that we will be able to raise issues with the FCA and also with the media to start asking questions about peremptory and unlawful cancellation of insurance policies. It is very clear that cancellation insurance policy for a mere technical reason is a breach of the relevant law. Even proper notification of cancellation does not make the cancellation lawful. There is nothing in ICOBS which allows that. ICOBS is very clear that insurers are not entitled to cancel or to impose technical conditions upon the life of an insurance policy or upon the decision as to whether or not to accept a claim.

 

This may seem unfair on insurance companies – although frankly I don't think it is – but the stakes are far too high, especially in the case of innocent victims of road accidents who could face a lifetime of non-compensated hardship simply because an insurer has decided to wriggle out of their contractual/legal responsibilities on the basis of some self-serving technicality.

 

If they want to be in the insurance business then it comes with this baggage. If they don't like it then they should get out and do something else.

[BankFodder]

I agree, it is a debate on the issue and it's a good idea.

 

You are right that the industry seems to have adopted seven days as a standard – which is certainly too short. But even if the notice period was 21 days, it would still be unlawful if it was used as a basis for terminating a policy or denying loss because of some technical reason.

 

There is nothing new about the ICOBS rules. Going back hundreds of years in the common law of contract, the law has always recognised the difference between a fundamental breach of contract – breach of condition – and non-fundamental breach of contract – breach of warranty.

 

A condition of the contract is a term of the contract which goes to the heart/whole purpose of the contract and breach of which effectively undermines the contract and can deny the innocent party of essentially the entire benefit of the contract.

 

A breach of condition is a basis for saying that the contract is void.

 

A warranty is some mere technical aspects of the contract, breach of which simply produces some inconvenience but does not deprive the innocent party of the benefit of the contract.

 

This is exactly what ICOBS is doing. Nothing new – simply spelling it out for insurers who for years have managed to dodge their responsibilities simply because of technical defects and because they have been dealing with customers who have simply resign themselves because they didn't know any better to challenge the insurer.

 

It seems to me that it is absurd to allow an insurer to avoid his obligations on a fully paid-up insurance simply because of some problem which doesn't at all affect the risk. It seems to me that the correct solution is not to permit insurers to terminate or to decline policies, but rather, in the event of an accident, to withhold cover until all the technical defects have been remedied and also to withhold policy documents for the same reasons. It wouldn't be beyond the wit of the insurance industry also to come up with an electronic marker to indicate to any interested parties – including the police – that an insurance was in place but that there was a defect. This would protect everyone. It would save everyone money. And it would place pressure on the insured party to remedy the defect or face prosecution.

 

There might even be a basis for an additional offence of driving with a defective insurance.