Allproperty Claims Ltd v Pang

A consumer contract made at home is unenforceable unless the trader gives the consumer the required written cancellation notice at the time of contracting. Actual knowledge of the cancellation right, later receipt of the notice, waiver, estoppel and unjust enrichment do not cure that defect.

Regulatory rules applying directly to an authorised principal do not ordinarily become implied contractual terms binding its appointed representative. A claims management company assisting with the administration or performance of an insurance contract may nevertheless fall within the relevant regulated activity. Limited website ambiguity breached the clear, fair and not misleading communication rule, but caused no recoverable loss where the underlying contract was unenforceable.

AllProperty Claims Ltd claimed £5,056.80 from Mr Tang Pang under a home-visit agreement concerning an insurance claim for water damage. The agreement waived fees if AllProperty Claims carried out the repairs, but imposed fees if Mr Pang terminated the arrangement or took the settlement money and arranged the works himself.

Mr Pang relied on the cancellation regulations, ICOBS, the Unfair Terms Regulations, CASS and invalid assignment. He also brought a Part 20 claim against ITC Compliance Ltd, the authorised principal for which AllProperty Claims acted as an appointed representative. The central issues were whether the agreement was enforceable, whether ICOBS applied directly or by implication, and whether the contractual terms and assignment were unfair or invalid.

1. Cancellation notice. The agreement was made at Mr Pang’s home and the Cancellation Regulations applied. Although the contract contained a written cancellation notice, it was not given to him when the contract was made. The later email and postal transmission did not cure the defect. Under regulation 7(6), the agreement was therefore unenforceable against him.
2. The defect could not be overcome by waiver or estoppel. Mr Pang’s knowledge of the contractual cancellation right did not establish knowledge that the agreement was legally unenforceable. An alternative claim in unjust enrichment was also unavailable, consistently with the policy identified in Dimond v Lovell [2002] 1 AC 384. There was no discretion to enforce the agreement, following Salat v Barutis [2013] EWCA Civ 1499.
3. ICOBS. The statutory and regulatory scheme placed responsibility for ICOBS compliance on ITC, not APC. There was no basis for implying an equivalent contractual term against APC under the approach in Belize v Belize Telecom [2009] 1 WLR 1988. APC’s activities, including negotiating the insurance settlement, constituted assistance in the administration or performance of an insurance contract under article 39(a) of the Regulated Activities Order.
4. The website conveyed a limited lack of clarity contrary to ICOBS rule 2.2.2 because the qualifying terms were unavailable and the reference to them was insufficiently prominent. The contract documents and Mr Kara’s explanations were otherwise clear. There was no further ICOBS breach. Any claim against ITC was limited to damages, and no damages arose once APC’s claim failed.
5. The fee clause was in plain and intelligible language and caused no significant imbalance. The mandate was not a contractual term and the assignment concerned the insurance claim, not the policy as a whole. No breach of the Unfair Terms Regulations or CASS was established.
6. APC’s claim against Mr Pang was dismissed. Mr Pang’s counterclaim against APC was dismissed. His Part 20 claim against ITC succeeded only in establishing the limited ICOBS breach, with no damages awarded.