Seeking Help - Again!

Discussion in 'Int Corps' started by ShoghunUK, Mar 18, 2013.

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  1. I am asking for help again. It seems to be my only posts nowadays and for that I apologise.

    I am hoping that someone from our TA colleagues is or knows a barrister.

    I am still fighting the case against Chartis UK, the company that provides PAX. Even though they have admitted liability, they are trying to get out of paying my claim in full. I was given the name of a solicitor and that has been another step forward but now need a real life barrister. I know the fees are high and I am not asking for charity but for someone that respects service personnel and the Int Corps in particular.

    Any information or help would be greatly appreciated and it will stop me whinging in this forum. That's got to be worth it!

  2. The_Duke

    The_Duke LE Moderator

    From your earlier posts on this I believe that you might have already gone to the Ombudsman with your case.

    Have you pursued this to the point of a final decision from the Ombudsman rather than one of the lower level adjudicators?

    The Ombudsman will always, always, without fail find in the favour of the client over the insurer. If there is any way at all that your policy and claims history can be read in such a way that you might be entitled to a pay out, they will read it that way and order the insurer to pay. To give you an idea, the Ombudsman has to my certain knowledge made an order for a payment to a person who had cancelled their policy and had a full refund of premium, just because the client complained that they had been put out by having to find an alternative policy!

    To be honest, if the Ombudsman doesn't believe that PAX should be paying you what you are hoping for, then there is little or no chance that a court will be able to find a way to order them to pay. You might be about to spend a lot of money for little or no return.

    If you want me to give you an honest appraisal of your case and how the policy wording reads, I would be happy to do so. I have no relationship to PAX, Chartis or the FOS know a fair bit about this subject!
  3. The FOS was my first port of call and they did find in my favour but they can only award up to £150k. I am insured for over £350k and I wasn't going to let Chartis off by letting them pay less than half! The FOS wrote that they found in my favour but because of the amount in question I was going to deal with them personally.

    Chartis must have been laughing their socks off. For them it was always going to be win win with the FOS. Either they would pay nothing or, as the FOS couldn't make them pay the full amount, pay out less than half. They would still be in pocket. I wasn't going o let them do that and so I took it to litigation.

    Hence the reason for a barrister. Chartis' solicitor states that case law is against me but I can't believe that. My solicitor has warned me it is going to cost a lot and that it would be a risk. I am trying to research some case law but as I am stoned for most of the day, I have short windows of time when my mind is reasonably clear, so research is difficult.

    To be brutally honest, it's not about the money anymore. Don't get me wrong, my wife is going to need it as I deteriorate further, but I cannot accept that an insurance company can dictate their own terms, just so they can make more money! I won't accept them dictating to me what they are willing to give me when the table of payments clearly states what I should get. Those that know me know that I can be pig headed and stubborn when I believe I am right.

    Well, that's my personal life aired, not much else I can say :s

    Thanks for the offer. My solicitor has all the paperwork and I am going to ask him to copy it and send me the originals back. If you think that I may have missed something then please let me know.

  4. The_Duke

    The_Duke LE Moderator


    In that case, make sure you get proper advice from your lawyer. You should not write off the option of accepting the FOS decision. The fact sheet on this link gives you some information, which hopefully the FOS and your lawyer have already discussed with you.

    First, it will go some way to establishing the strength of your case if you have a finding from the Ombudsman which supports you.

    Secondly, as long as you accept the FOS settlement on a "without prejudice" basis (ie with no clauses indicating that it is a full and final settlement from Chartis) then the £100k becomes your fund from which to pay your legal costs. Without that, you are going to be spending savings on legal fees, and you will run up the bills very, very quickly, especially if you get barristers involved. There is every possibility that you will run out of money before Chartis do, resulting in no payout and lots of money wasted.

    You will also have the advantage of £100k in your hand, whatever way the court case goes. The Ombudsman has a wider remit than the court - they can make a decison based on what they believe to be "fair and reasonable". The courts can only base their decisions on law and the evidence in front of them. If Chartis are correct that they have case precedent on their side the you may walk away from court with nothing at all, massive legal bills and no chance to go back to the Ombudsman.

    Have you actually gone as far as the Ombudsman giving their decision to Chartis and asking them to pay the additional amount over the £100k?

    Again, get a formal legal opinion, in writing about the possibility of accepting the Ombudsman's decision and then going after any remaining amounts you believe may be owed from the courts.
  5. That is sound advice but I didn't accept any monies as I expected a Claus somewhere preventing me from litigating. As I said, I'm not firing on all four cylinders and the FOS part was well before a solicitor got involved.

    I wonder if I could resubmit it on the grounds of new review or something. During the FOS case, the adviser admitted she was biased toward PAX and I requested a new review, as was my right. She ignored me but couldn't ignore the proof which was why they found in my favour. I could go back and complain thereby getting my case reviewed again and then follow your suggestion.

    Would that work?
  6. The_Duke

    The_Duke LE Moderator

    It depends. Time limits apply for the FOS as below:

    six months from the business sending the consumer a final response (which has to mention the six-month time limit);
    six years from the event the consumer is complaining about (or – if later – three years from when the consumer knew, or could reasonably have known, they had cause to complain).

    If it has been more than 6 months since Chartis sent you their final response, and they included a mention of the 6 month time limit within that response, then it looks like you will not be able to re-open the case with the FOS.

    The adviser would not have been "biased towards PAX" - they are not allowed to be (and trust me, they are not biased towards any insurer!). She might well have indicated that she was minded to support the PAX position. I can see that would not be easy for you to accept, and you would have been quite right to request that your review was pushed up to a higher level.

    I don't know the details of you or your complaint, but I am going to stick my neck out a little here - you do not come across as being in a very good position to deal with this without some serious support. You need to get some expert advise, and listen to it carefully when you are in a good state to listen and understand. If that expert advice is to take the FOS offer (if it is even still on the table) then you should give it serious thought. The FOS will regularly give decisions against insurance companies that would not have a hope of standing up in court, and insurers have no choice but to accept them because that is how the system works.

    A poor decision by you could cost you £'000s, and that will hurt far longer than any percieved injustice by Chartis once the dust has settled.
  7. Hello ShoghunUK, a friend of mine asked me to look at this thread for you. I am a current serving officer in the TA and a civil law barrister.

    Having read this thread I will clarify a couple of points for you that I will hope point you in the right direction. I give advance warning that insurance disputes are not my area of practice but I do have experience with financial disputes.

    You will find that most barristers cannot be directly approached by the public unless they have completed a public access course (Bar Code of Conduct para 401 and also at annex F2). This means that in the exceptional circumstances that you know a barrister that practices in this specific area who has completed this course and is of sufficient seniority your solicitor will have to employ a member of counsel to act upon your behalf.

    As The_Duke rightly points out, you next stage is for your solicitor to obtain a legal opinion from a member of counsel. Solicitors by their very nature know a lot about a lot of law but unless they deal with it on a regular basis are not what one would consider to be experts. Barristers however know a huge amount about a tiny slice of the law. A large part of what we do involves advising solicitors in the areas we specialise in and that should be your next step and will also give the benefit of a completely unbiased legal professionals take on the merits of your case.

    If your solicitor has explained to you that the case law in this area is against you, has he explained why? Obtaining a legal opinion would definitely give you the answers as to why or may even show that your solicitor may have been mistaken. The opinion will also allow you to further refine your own research as it will state what case law is against you and why but should also show what case law is for you.

    A barrister contacted by your solicitor may be more expensive than merely your solicitor conducting research on your behalf but you can be sure that the information that you receive from him will be, current, correct and will objectively look at the merit of your case. It will also contain what the barrister believes to be your realistic chances of winning if the case did go to trial and indeed if the case should progress at all in this direction.

    (For example I grade my cases on a 51%-70% chance of success. Civil cases are decided on a balance of probabilities, less than 51% is unwinnable and greater than 70% does not exist due to the fickle nature of the courts at times)

    In this your solicitor is correct. All litigation is a risk and it is expensive and is why you should obtain a legal opinion from a member of counsel as soon as possible. If your case does have a good chance of success, then your solicitor should be more than happy with work on a conditional fee agreement. These are mistakenly referred to as a “no win no fee” type arrangement.

    Why are they dictating what your payment should be? Are there terms in your contract with them that limit their liability? If there are, failing any statutory safeguards (the Unfair Contract Terms Act 1977 for example) then I am sorry to say that if you signed the document and those terms were contained within that document you are bound by them, irrespective of how “fair” you consider them to be.

    This seems to be an excellent result but appears to be the opposite of what your solicitor has told you. It seems to be that there is some information missing here. I find it curious that the FOS found in your favour but your solicitor does not seem to think the case is worth progressing? What am I missing here?

    You should really speak to your solicitor and ask them to contact a member of counsel on your behalf and obtain an opinion ASAP. It will remove any uncertainty and you will definitely know where you stand when you have it in your hand. It will be wrote in plain English and directed for you to understand.

    Without knowing more about your case there is not a great deal I can really advise you on. Feel free to ask me any questions and I’ll do my best to answer them and good luck.
    • Like Like x 2
  8. The_Duke

    The_Duke LE Moderator


    Why are they dictating what your payment should be? Are there terms in your contract with them that limit their liability? If there are, failing any statutory safeguards (the Unfair Contract Terms Act 1977 for example) then I am sorry to say that if you signed the document and those terms were contained within that document you are bound by them, irrespective of how “fair” you consider them to be.

    I would guess (a pretty informed one, but a guess never the less) that the crux of the dispute centres on whether he meets the definitions under Section B1a or Section B1b.

    B1a is permanent total disablity from any and every occupation without reasonable hope of recovery and pay £20,000 per unit of cover purchased.

    B1b is permanent total disability from usual occupation, specifically being medically discharged from the services, but at a level of disability not sufficient to meet B1a. This pays £2,500 per unit.

    I would guess that the area of contention is the exact nature of the disability casuing the medical discharge and the prognosis for future employment. The PAX policy uses the American Medical Associatioon guideline for determining degrees of disability, whereas an insured's own doctor can often be less absolute or impartial about it.

    "I find it curious that the FOS found in your favour but your solicitor does not seem to think the case is worth progressing? What am I missing here?"

    They have very different terms of reference. The FOS adjudicates on what they believe to be "fair and reasonable". In doing so, they are very happy to totally ignore the terms of the contract at the centre of the dispute even if they are perfectly legal and binding. It is therefore quite possible (and is in fact quite a frequent occurence) for the FOS to order a payment which would be entirely outside of the terms of the contract.
  9. Thanks for the definitions The_Duke.

    That does look like a definition that would be open to contention however The FOS appears to use impartial medical professionals and an inquisitorial approach and as ShoghunUK implies, they did find in his favour up to the maximum they were able to at the time. I would have thought that there would plenty of previous cases for The FOS to be able to place ShoghunUK into one of those two aforementioned categories.

    The FOS themselves sometimes state that a case is more appropriately dealt with by the courts if the amount awarded would exceed the maximum they can award and if that happens The FOS do not continue with the case.

    Has that happened here? What I do not understand is why The FOS found in your favour up to their allowable maximum yet your solicitor states there is no merit in your case. The findings from The FOS would be seen as being persuasive in court without having researched the specific case law in this area that may run contra to your case. We are still missing information concerning this.

    I do not see any reason why you would need to have the case reviewed again. If they found in your favour as you imply to their maximum allowable then a case review would achieve nothing new.

    This happens all the time nowadays. Alternative Dispute Resolution (disputes out of court) is an area of law and business that is on the increase. When something such as this happens then depending on the type of ADR used, the contract will either be taken into consideration, used as a form of precedent or ignored almost in its entirety. The parties agreeing to this form of ADR gives it legal effect and makes it binding.

    Either way ShoghunUK, you still require a legal opinion from counsel and that will tell you whether to go to court or to accept the amount awarded by The FOS and put the issue to bed, assuming you are within the correct time limits of course.
  10. The_Duke

    The_Duke LE Moderator


    I could give you any number of cases showing how "impartial" the FOS are, including where they made awards in respect of a contract which had been cancelled ab initio at the clients request!

    This is the main reason I am suggesting that Shoghun does not dismiss their offer out of hand. He will never find friendlier ears than the FOS's.

  11. I agree with you 100%.