When even doing one’s best is not enough

The High Court decision earlier this year in All Property Claims Limited v Tang Pang and ITC Compliance Limited [2015] EWHC 2198 (QB) (29 June 2015) is a timely reminder to traders that sometimes even doing one’s best is not enough and that traps can await them if they do not know and strictly follow all relevant requirements.

In this case, the Claimant, All Property Claims Limited (APC), a claims management company specialising in property damage insurance claims, was an appointed representative of ITC Compliance Ltd, an insurance intermediary network.

The Defendant, Mr Tang, had suffered water damage at his home and wanted to make an insurance claim against his insurer, Zurich. He approached APC. A surveyor from APC came out to Mr Tang’s apartment to assess the damage and discussion turned to the terms on which APC was to act (these being disputed in evidence) but it was not disputed that APC’s surveyor, after discussing the terms with Mr Tang, kept both copies of the agreement, including the cancellation notice required by the Consumer’s Home or Place of Work etc Regulations 2008 (the Regulations) instead of leaving one behind.

On his return to the office, the surveyor realised his mistake and APC immediately sent Mr Tang a copy of the agreement by email, including the cancellation notice.

APC then acted on behalf of Mr Tang and negotiated a settlement of £14,256.04 with Zurich.

On the day this settlement was agreed, Mr Tang terminated his agreement with APC and had the settlement monies direct from the insurers.

Under the agreement between APC and Mr Tang, if the agreement ended, he agreed to pay APC £140 an hour for their services. APC therefore sought a fee (£5,056.80) calculated on this basis.

Mr Tang defended the claim (for which he was funded by Zurich!) on various grounds including that the agreement was governed by the Regulations but that, in breach of regulation 7(6), Mr Tang was not given a written explanation about his right to cancel the agreement. This meant the agreement was unenforceable and he was not responsible for APC’s fee.

Although the Court was not impressed by this ‘wholly unmeritorious technical’ defence, it was nevertheless correct in law and the Court felt obliged to find for Mr Tang. It ruled that APC could not enforce the agreement and APC got nothing for its successful efforts on Mr Tang’s part

This decision serves as a reminder to traders that the devil really is in the detail when it comes to entering into agreements with consumers. Although since this case started the Regulations have been amended (so that the facts of this particular case might well now result in a different conclusion) it remains a warning to traders of the need to seek advice and to update practises and procedures regularly, especially given the considerable changes to consumer law over recent years. However sympathetic a court might be towards the trader, there are unlikely to be short-cuts and, as said at the start, even doing one’s best might not be enough.

If you would like any advice on the issues raised above please contact Mark Pittaway – 0121 227 3850 or mpittaway@thursfields.co.uk

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