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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8721
Experience:  I have been practising for 30 years.
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I took out house insurance with Saga in 2008 over the

Customer Question

I took out house insurance with Saga in 2008 over the telephone. I gave them the address to be insured and my bank details for direct debit. In 2015 I discovered by chance that they had been insuring the wrong address for 6 years. I asked for a refund as i said this was not the contract I entered into, but they have refused saying if I had made a claim they would have honoured it. Over this period my premiums increased significantly and they also charged interest (although they have offered to reimburse the interest). I have asked for a copy of my initial phone call that I am happy to pay for, but they have refused and will only give me a copy of the telephone transcript. This is inaccurate, inaudible and cut in places. I have started proceedings through the small claims court to reclaim the money and said I was happy to go through mediation. They have refused mediation. Do I have any chance with this case, or am I wasting my money?
Submitted: 6 months ago.
Category: Law
Expert:  F E Smith replied 6 months ago.

Whether they would have honoured any claim that you made or not, we will never know because you have made one. If they did not, then it would be a case of getting the telephone recording that it was their error. If it was their error, they have not got a leg to stand on and I would be very surprised if they let the matter go to the Financial Ombudsman which would be your recourse if they refuse to pay the claim.

I don’t know what you mean when you say they have refused to give you a copy of the telephone call but they’ve given you a copy of the transcript. The transcript would be the wording and what’s confusing me is that you say it’s inaccurate in audible and cut in places which implies that you have a recording of sorts.

You should now make a Subject Access Request, in writing, under section 7 of the Data Protection Act asking for a copy of the recording and any other information which they hold on you. There is a statutory fee of £10 and they have 40 days to comply.

If they don’t comply, you can make a complaint to the Information Commissioner and also make an application to court for a court order to compel them to comply and you can ask the court to award costs against them.

It really is a case of whether they would have paid out on any claims over the period that you thought you were insured or not. If they would have paid out, that you are not entitled to the money back because you did have the cover. If they would have not, then you are entitled because they took the money without risk. Of course, they will say they would have paid out which is what they have done.

I don’t think you have a brilliant case to take to the Small Claims Court but I think you have an excellent complaint to make to the Financial Ombudsman Service and the beauty of that of course is that it is not only free of charge but it’s free of risk.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails if you wish.

Best wishes.

Customer: replied 6 months ago.
I do not believe that they would have honoured a claim because they initially told me that my original phone call was lost when a new telephone system was installed and the case was closed. It was only after I brought it to the ombudsman and I found circumstantial evidence to support this that they found the phone call. They have provided me with a transcript of the phone call, but it is inaccurate, inaudible and cut in places. I have already made a subject access request for the actual recording (not a transcript), but they say they cannot supply this. I have already started the small claims proceedings, and agreed to mediation, but as I mentioned already, they will not go to mediation. I have a court date for beginning of September, but am now worried that if I lose I will have to pay their costs, and not sure how much this will set me back. Do you advise me to proceed or not? They have also increased m premiums very significantly each year, but because all correspondence was going to the wrong address, I never received anything from them. They never sent me a statement of fact at the inception to sign and when I queried this they say that it is included in the policy schedule. The ABI and BIBA class these as two separate documents. They have had my email address and phone number, but never tried to contact me over the 6 years. All correspondence was sent to the wrong address that they had been insuring. They have agreed that this was their mistake.
Customer: replied 6 months ago.
I do not believe that they would have honoured a claim because they initially told me that my original phone call was lost when a new telephone system was installed and the case was closed. It was only after I brought it to the ombudsman and I found circumstantial evidence to support this that they found the phone call. They have provided me with a transcript of the phone call, but it is inaccurate, inaudible and cut in places. I have already made a subject access request for the actual recording (not a transcript), but they say they cannot supply this. I have already started the small claims proceedings, and agreed to mediation, but as I mentioned already, they will not go to mediation. I have a court date for beginning of September, but am now worried that if I lose I will have to pay their costs, and not sure how much this will set me back. Do you advise me to proceed or not? They have also increased m premiums very significantly each year, but because all correspondence was going to the wrong address, I never received anything from them. They never sent me a statement of fact at the inception to sign and when I queried this they say that it is included in the policy schedule. The ABI and BIBA class these as two separate documents. They have had my email address and phone number, but never tried to contact me over the 6 years. As the insurance policy was taken out over the phone, was it their responsibility to see that I received a copy of the policy?
Expert:  F E Smith replied 6 months ago.

If this is a Small Claims Court matter, then costs are not normally awarded against the losing party in the Small Claims Court.

Provided it is in the Small Claims Court, then if you lose, it is unlikely that you would have to pay costs other than nominal solicitors costs of hundred pounds plus any expenses.

I think that you are claim has a 50% chance of success at best. It could go either way in court and I would not like to put my money on either party.

There is another point here not directly related to the premiums and that is that they are in breach of contract. The difficulty with bringing a breach of contract claim is that you haven’t suffered any loss, and that comes back down to the fact that you haven’t made a claim.

Customer: replied 6 months ago.
I appreciate I never made a claim, and although I cannot prove it, do not think they would have paid out because from the beginning they have been evasive and economical with the truth. I am still not sure where I stand with the statement of fact. Should they have secured a signature from me to confirm that I agreed with the information provided? I also cannot understand why they will not send me a copy of the original phone call. This would surely work in their favour as it could only confirm that the transcript is a true and accurate version of the events of the phone call. I have put it to them that by insuring the wrong property they are in breach of contract, because this is not the service I asked for. But again, I do not know how this will hold up in the small claims court. I was never informed that there was an automatic renewal system, neither was I informed that my premiums would go up and interest added after the first year. We rang Saga on 22nd January this year and got a quote from them for a similar property and were quoted £180.67 compared to £746.41 plus £72.40 interest that they were deducting for me. When I queried them about this, they said they gave incentives for new customers. I just feel overall I have been treated very shabbily. I cannot prove whether they would or would not have paid out in the event of a claim, but by claiming the phone call had gone missing, there was no evidence that they had insured the wrong property. It was only after they formally said the case was closed, that i found evidence to support the time I cancelled my old policy, contacted Go Compare to get best quote, and rang Saga (all within half an hour of each other) and scanned this information over to them (upon their request), that the phone call resurrected itself. If they had of agreed to go to mediation I would have compromised with a fifty percent return on the premiums over 6 years. I am now asking for a return of all premiums!
Expert:  F E Smith replied 6 months ago.

They should have sent you the policy schedule, your statement of fact (all the details that you gave them including your address) and the key facts of the policy.

They don’t have to be in hardcopy, they can be by email.

One bit of good news is that if this goes to court, the matter is decided on the balance of probabilities and hence, you only need one small bit of information to swing it in your favour and who will succeed. It is the lack of loss from you which is the problem however the fact that they may have lied through their teeth.

To bring a claim, you have to suffer loss and that’s where the problem lies.

I would not disagree that you have been treated shabbily.

When you get a moment, please don’t forget to use the rating service so that I get paid. We can still exchange emails if you wish.

Best.

Customer: replied 6 months ago.
There was never any statement of fact, they claim that this was included in the policy schedule. However, I never received any of this because they sent it to the address they were insuring and not to me. I have not received one piece of correspondence over 6 years from them. I will definitely use the rating service at the end, just wanted to clear up any points that may or may not be relevant with you first. If they had not been adamant that the phone call had gone missing and the case was closed from the onset, then I may have been inclined to believe that they would have honoured any claim. They did not want to admit from the beginning that the mistake was theirs. However, once I provided them with scanned evidence (albeit circumstantial) they changed tack and found the telephone recording. This then proved that they had insured the wrong address. Unfortunately, because I never received any policy renewals over 6 years (they went to the insured address), I was never in a position to make an informed choice if I wanted to continue to be insured by them.The other point I wanted to make was that when it started going through the small claims court they did not bother to reply to the DQ in time, so a general sanctions order was made against them. Will this stand in my favour? Similarly the fact they wont go to mediation?I appreciate your help, as I just want to know my facts before I go ahead. I have spent out nearly £500 now, and if the costs do not amount to too much then I will proceed.
Expert:  F E Smith replied 6 months ago.

I accept everything you say. I believe you completely. The problem is, as I have said a couple of times, whilst they are in breach of contract, you have not actually suffered any loss and that may be the view that the court take.

They may decide that there has been a total breakdown of consideration and that the insurance company didn’t provide anything at all and didn’t provide the cover and hence would refund you but I still think you have a 50% chance of succeeding.

Please don’t forget to use the rating service otherwise, I don’t get paid.

Best wishes.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8721
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 6 months ago.
Thank you. Just one more point, should I have received some sort of document, albeit statement of fact or policy schedule, that I was required to sign to agree to the terms and conditions agreed over the telephone? When I have read up on this it says that a Statement of fact is a form outlining all the information given to an insurer that is signed by the customer. My argument is, that if they had sent out this form for a signature, they would not have received a reply (as it went to the wrongly insured address), so then they could have contacted me either by phone or email to establish why I had never replied, and we would have established they were insuring the wrong person at the wrong address.I am just wondering if by law contracts taken out over the phone need a follow up signature so neither party can dispute the terms at a later date. If this is the case I might have a better argument.
Expert:  F E Smith replied 6 months ago.

What you have been told about the Statement of Fact is absolutely true.

However the normal procedure is that you only tell the insurance company of something is wrong. As you quite rightly say however this went to the wrong address and hence you wouldn’t know. I’m assuming that you have no contact with this other address, but it’s not a previous address of yours or suchlike.

Many contracts taken out over the phone never get followed up don’t need to be followed up in writing. That is no legal requirement for an agreement to be in writing except in respect of the sale of land/property.

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