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REVIEW OF ANOTHER FOS DECISION 1st Feb
2012...FOS announce they have won this case This is a case where an Insurance Company (Europ Assistance) has declined to pay out on a claim resulting from the Icelandic volcano eruption and subsequent disruption of aviation by the dust cloud. The claimant took the case to the FOS who ruled that the volcanic dust cloud was "weather" and told the firm to pay the claim. The firm asked for a JR of the decision. The Case was initially handled by an adjudicator (who looked up "weather" in Chambers dictionary), but ended up with Caroline Mitchell who is lead ombudsman – casework policy for insurance and investment and was appointed in January 2005 This is a hugely important issue as it may impact on all travel insurance, and indeed other insurance policies in the future. The claimants in this case will have to wait whilst the JR takes place which may be many months, and other Insurance Companies may also decide to await the decision. Many FOS decisions as well as fees payable to FOS by the firms will be delayed whilst this happens. It may be that the case has such important implications for the insurance industry, that the ombudsman should have invoked the test case procedure, and the firm requested this, however Ms Mitchell specifically decided not to do so and she explains why in her decision. Ms Mitchell therefore issued a standard FOS Ombudsman "decision" which is binding on the firm, if the claimant accepts the decision. It look as though Europ Assistance have reacted to this by asking for a Judicial Review. It is not obvious (to me) whether the JR is of the failure to use the test case procedure, or the assessment of volcanic dust at "weather", or both these matters. The JR judges will have to consider the effect of their ruling on all manner of disturbances in the air and elsewhere which might or might not be considerered to be "weather".
and so on. This could run and run ! Ms Mitchell's discussion of the issues in her decision makes very interesting reading. It is not often we get the chance to read an actual verbatim 'decision', (though Natalie recently said that they would all be published in the future). Europ Assistance is reported to have said “ .... prior to the issue of court proceedings, in April 2011 we asked the Ombudsman to agree to expedition for the judicial review with a view to achieving early resolution and it was the Ombudsman who refused to do so.We would also point out that the Ombudsman acknowledged the right of a third party to apply for judicial review of their decision. We are, therefore, particularly disappointed that FOS has since chosen not to work with us proactively to seek early clarity on this issue on behalf of travellers and insurers alike.” Caroline Mitchell's actual ruling (ombudsman's decision) Europ
Assistance's reported comments FOS
letter to claimants, whose cases will now be delayed |