Comments on: Insurance – how it can be invalidated by tenants trivial criminal convictions

By: Stephen O'Neill

Stephen O'Neill — Sun, 18 Apr 2010 12:14:31 +0000

On the Article 8 point the Treasury Sub-Committee refer to Northern Rock as a public company (http://news.parliament.uk/2009/01/bank-nationalisation-report/) but a Weaver-type argument might run for the part-owned banks -certainly worth a try if all else fails.

By: Stephen O'Neill

Stephen O'Neill — Sun, 18 Apr 2010 11:57:27 +0000

Lord Bingham hinted at how the 1999 Regulation could be used in cases such as this in the case of Director General of Fair Trading v First National Bank [2001] UKHL 52 where he said that clauses which might operate disadvantageously to the customer should be given appropriate prominence. I think it was in the 1950′s when Lord Denning said that some clauses would need to be printed in red ink on the face of the document with a red hand pointing to it before it could be held to be sufficient.

Plainly a clause which places an ongoing burden of disclosure on a customer which could ultimately invalidate an insurance claim should be covered by the ‘red hand rule’.

By: Ben Reeve

Ben Reeve — Sun, 18 Apr 2010 09:05:48 +0000

OH AND PS.
I noticed, reading in yesterday’s Independant about people stranded by the ash cloud and trying to claim accommodation fees on their insurance are being denied because of the small print nature of the problem…by guess who? Aviva/Norwich Union.

This article shows that at least Directline are doing something
http://www.independent.co.uk/money/insurance/insurers-accused-of-disappointing-response-to-eruption-1947548.html

By: Ben Reeve

Ben Reeve — Sun, 18 Apr 2010 08:58:55 +0000

I like the idea there Stephen. I am familiar with Article 8 defences in landlord and tenant law but didnt know Regulation 5 so I just looked it up, “a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

It’s a reasonable argument and maybe worth pursuing if anyone has already been denied a pay out upon it being realised that convictions were not declared. I wonder how or if it could be challlenged as an unfair term that isnt being applied to a specific case.

Article 8 defences caused much consternation last year in the social rental sector in the case of Weaver v. London & Quadrant Housing Association. Wont bore you with the details but since this decision housing associations are to be considered hybrid public bodies in terms of their housing management function, raising the possibility of European Convention on Human Rights defences that previously werent there.

Your RBS argument makes me wonder where Northern Rock stand in this respect with mortgage repossessions, although I have to say in my experience Northern Rock have been the most helpful of the lot when negotiating on someone’s behalf in terms of lender hardship

By: Stephen O'Neill

Stephen O'Neill — Sun, 18 Apr 2010 07:58:15 +0000

The Bank of Scotland holds the licence for Aviva and RBS owns Direct Line. Both are to some degree, state owned -or at least heavily subsidised. If it can be argued that they are now public bodies they must not act in a way which is not compatible with the Human Rights Act. Article 8 covers an individuals right to privacy for themselves and their family members. A standard request, depending on the wording, for disclosure of any and all criminal convictions, is arguably incompatible with Article 8. If a bank thinks that the information commissioner, ombudsman or the courts will get to have another look at their agreements and decide whether Article 8 applies I wonder how many of them would not rethink refusing an insurance claim.

Another route for trivial offences could be Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999.