consumer insurance policy arbitration clause and the EC (Unfair Terms in Consumer Contracts) Regulations 1995

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jdcarn

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I am a consumer.
The home policy and contents cover contains a pre-dispute arbitration clause.
Is the arbitration clause enforceable under EC (Unfair Terms in Consumer Contracts) Regulations 1995 ?

Is there case law available for this situation ?
I am in Ireland
 
Hello Leo,
I was not specific enough in my first post.
The information that i have is regarding a “PRE-DISPUTE CONSUMER ARBITRATION CLAUSE” in a standard home insurance contract, and the Civil Law view thereof, that such a clause is one sided and contrary to the general concept of Good Faith and is an example of a term that is to be considered unfair in a consumer - business contract as per SI no.27 of 1995, (The Unfair Terms in Consumer Contracts) Regulations 1995 . So I wish to establish a reference for this in the case law - or that I have a false belief.
Thankyou for your assistence.
 
Can you point to material on the civil law view that is contrary to good faith or unfair here? Interesting point, but I can't see anything relating to Irish coverage of it. I checked my contract and while there is a section under the terms of business:

Governing law
You and Allianz may choose the law applicable to this contract. It is hereby agreed that
this contract is governed by Irish Law unless we agree with you otherwise in writing. The Irish Courts will
have jurisdiction to hear any dispute other than any dispute which must be referred to arbitration under the
arbitration clause of this policy.
Click to expand...

There is no arbitration clause in the contract.

In some jurisdictions such clauses can result in a consumer waiving their rights to the courts system, I don't know if that applies here, but it can't close off the Ombudsman as an option.
 
The arbitration clause is known as a Scott -v- Avery (1855) clause.
Reference Scott v Avery (1855) 5 HL Cas 811
Inter alia the House of Lords opined that the clause did not offend public policy, was enforceable and had advantages to recommend it.
The clause is also known as an ouster clause because it specifically ousts the jurisdiction of the courts.
Not every dispute might actually be suitable for arbitration as where, for example, something like fraud is alleged.

A difficulty facing jdcarn is that, even as a consumer, they knowingly entered in to a binding contract containing an arbitration condition.
Without being harsh, it will be pointed out that if you knowingly enter a contract you will be subsequently bound by it's terms.
You might be effectively estopped from accepting the condition on forming the contract and rejecting it subsequently.
In the alternative, you will probably be deemed to be aware of the condition before the contract was formed.

I have doubts about the unfair terms argument.
It will be argued that an arbitration provision advantages a consumer by offering a less costly method of resolving a dispute than would be the case with formal litigation.
Against this, formal arbitration will involve legal costs.

Leo mentions the FSPO option.
Link to the complaints procedure www.fspo.ie
Most insurers subscribe to the scheme.
Be aware that it costs nothing in terms of legal fees to submit a case to the FSOP.
Any finding of the FSOP on a dispute is legally binding on both parties.

However, all parties to a FSOP decision are entitled to appeal.
The kicker is that the appeal will be to the High Court by way of a motion - a judge will hear the appeal.
There will be 3 parties to the case ; the FSOP, the original complainant and the institution / insurer.
There are significant legal costs implications with that procedure.
 
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There is no arbitration clause in the contract.

Yes there is. S P38 of the home Policy.
 
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