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Wednesday, 31 August 2016

I wonder when I will get some respect from the insurers?


The Court of Appeal were very respectful isn’t it time for the insurers to finally deal with me?


I managed to actually speak with Gemma last Friday by dialing 141 before her direct number. Then I sent this email... She had told me that all the letters have been passed on to the correct people.. So the insurers do know my Barrister and I are waiting their response!

To
Aug 26 at 4:36 PM
 Dear Gemma,

As agreed could you forward to me the contact I will be dealing with directly at the building insurers.
This is now a damages on damages claim, as the court of appeal said I was covered for the structure.
As I said I have no truck with One Housing Group and I would like to take on the insurers directly.

All the best have a lovely bank holiday.
Jo Flores
UK
Tel: 00 44 (0) 20 7837 6680
Mob: 07916 325037
Community Interest Company



HAVING TAKEN ADVICE ONCE I COULD AFFORD IT…
To Solicitor
04/18/15 at 1:52 PM
Dear REDACTED,

Thank you for the legal advice.

Having had a think about it, the advice is in two parts, one about the Court of Appeal judgement and the other on the insurance policy.

On the insurance policy, there are two things you say that need further clarification from me.

1)   General starting point is that mere noting of your interest on a policy (as distinct from your being joint insured) does not give you a right to claim under that policy

2)   Also, even where a loss payee is entitled to be paid out, that entitlement to be paid might not arise unless a claim is first made by the insured party.



Clarification of point 1. 'Noted interest' as stated by the insurance broker FARR PLC means;

02 September 2005
Ms Jo Gavin
104 Cromer Street
London
WC1H8BZ
Dear Sirs
Community Housing Association Limited
Property Stock Policy Number: UKU/FARR/2005/274
Property Interest at: Any property insured under the above Policy
Following your recent request, we enclose the Summary of Cover.
With regret it is not usually possible to note individual interests, due to the number of properties insured. We are however pleased to confirm that your interest is automatically noted by the following Clause which applies to this Property Stock Policy.
"The interest of the owners, leaseholders, mortgagees or other interested parties of each individual property insured by this Policy is noted, the nature and extent of such interest to be disclosed in the event of loss."
Buildings Sums Insured are not specified for individual properties, as each are covered for full rebuilding costs following total loss, under the terms of the Policy.
Please note that this document has been prepared to meet the specific requirements of our client and is supplied to you at their request. It has not been prepared for and may not meet your own requirements. You should, therefore take steps as you consider necessary to satisfy yourselves that your own requirements have been met.
Any further documentation or detailed information will incur an administration charge of £50.00, which we require in advance.
We trust the above is in order.
Yours faithfully
H
0
Marie Livings (Mrs)
Local Rate Dial: 0845 129 8037 E-Mail: m.livings@farrplc.co.uk
Clarification of point 2. In brief the property claim forms sent to the insurer BY THE landlord, after I filled it out.


Evidence of the claim having been made…2005

PROPERTY CLAIM FORM
Name of Housing Association: Community Housing Association
Your Name: Ms Jo Gavin.................
Policy Number: UKU/FARR/2005/273
Loss Address: 104 Cromer Street, London, .................
................. ..... Postcode: WC1 H 8BZ................. Telephone Number: 0207 278 4404.................
Are you: Leaseholder
Date and time of loss giving rise to this claim: Sept 04 to August 05

I have read section12 on page 7,accidental damage to pipes, which covers CHA. Page 10 regarding the reduction in market value and the delays in carrying out the repair work, which also covers CHA. Page 11 section 2. Flood, which also covers CHA. Page 12, loss or damage caused by the policy holder or employees, covers CHA. Page 13 pollution or contamination covered by the policy, covers CHA, also stated on page 15. Of course it does state that the conditions that apply to the policy cover on page 18 are that CHA are to keep their property in a good state of repair or any defects must be made good as soon as possible taking necessary precautions to prevent loss or damage. Obviously this has clearly not been observed by CHA therefore if this claim is void due to that I would expect you to specifically state that in your decision on this claim to me. I shall therefore take legal action against the company and will expect you as my insurers to pay the legal expenses in doing so. Page 17, denial of access can also apply with the interference to business. Page 23 states that the policyholder should not admit, reject or negotiate any claim without your written consent. That you may take control in the defence or settlement of any claim on our behalf.  That you may take legal action to recover any expense from others ( ie: CHA ) covered by this policy. I look forward to your advice as my building insurance company as to how to recover my losses.  

PROPERTY CLAIM FORM
Loss Address: 106-108 Cromer Street, London .................
................. ..... Postcode: WC1 H 8BZ................. Telephone Number: 07916 326 511.................
Are you: Leaseholder


Looking back, more than a year ago we entered a commercial premise that had no flooring, no proper heating, no ventilation and was not safe to open according to regulations. We have spent a lot of time and money dealing with a decent refurbishing of the place, lost a lot of time and associated potential business in reporting and chasing up the repair of two major leaks which delayed us on a massive scale, and we are still left in a situation where the health & safety basics need to be put in place.
On that last point we do not know how long these will take to fix and consequently how much in time and business this will cost us. If the landlord is prepared to carry out the works then we will only claim for the additional loss of our time, rent and business rates.
. I have read section12 on page 7,accidental damage to pipes, which covers CHA.
 Page 10 regarding the reduction in market value and the delays in carrying out the repair work, which also covers CHA.
 Page 11 section 2. Flood, which also covers CHA.
 Page 12, loss or damage caused by the policy holder or employees, covers CHA.
 Page 13 pollution or contamination covered by the policy, covers CHA, also stated on page 15.
 Of course it does state that the conditions that apply to the policy cover on page 18 are that CHA are to keep their property in a good state of repair or any defects must be made good as soon as possible taking necessary precautions to prevent loss or damage. Obviously this has clearly not been observed by CHA therefore if this claim is void due to that I would expect you to specifically state that in your decision on this claim to me. I shall therefore take legal action against the company and will expect you as my insurers to pay the legal expenses in doing so.
 Page 17, denial of access can also apply with the interference to business.
 Page 23 states that the policyholder should not admit, reject or negotiate any claim without your written consent.



So I suppose firstly I am not a tenant I am a leaseholder and secondly according to my building insurance policy I am to be treated as if I had separately insured and in brief this is my cover too. Alongside the CoA clarification that the structure was insured.

"the repair of the structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]"




FARR PROPERTY INSURANCE
FOR REGISTERED SOCIAL LANDLORDS
RENTED STOCK POLICY SCHEDULE
Effective Date Policy Number Property Insured
Policyholder The Business
Other Interests
30 April 2005 UKU/FARR/2005/273
Any residential property (or commercial property where required) in respect of which the Company has accepted the risk. The terms of the Policy apply separately to each property as though each had been insured by a separate Policy
Community Housing Association Limited &/or leaseholder &/or part owner of any property insured hereunder
The ownership (freehold or leasehold) or management of residential property (or commercial property where required) and all other activities of Registered Social Landlords
The interests of the freeholder and the head lessee of the property where required (if they are not the Policyholder), the owner or lessee of each property and the mortgagees of any of them are deemed to be noted
Period of Insurance    From     30 April 2005            To        29 April 2006 (both dates inclusive)
Annual Cost            Included in Programme Cost
Section (not operative unless Sums Insured or Limits of Indemnity shown)
The basis of cover is 'All Risks'
The basis of cover is 'All Risks'
Buildings
Rented
Commercial
Contents
Playgrounds
3.   Property Owners Liability
Excess - Rented
General Claims
Subsidence, Landslip and Heave
Property Owners' Liability
Excess - Commercial
General Claims
Subsidence, Landslip and Heave


Commercial Property
Offices shops community centres and other buildings in connection with The Business of the Policyholder which We have been notified of and accepted the risk

I don't know if that alters anything but it has been my contention throughout that I was insured for the structure and the Court of Appeal gives that to me, I think?

Best Wishes
Jo

spaceshift...
in association with Scarlet Maguire Gallery
UK
Tel: 00 44 (0) 20 7837 6680
Mob: 07916 325037
www.spaceshift.co.uk
www.scarletmaguire.com
www.onepercent4art.com

I then took some further advice on these insurance issues from another partner at a top London law firm and she said that since the Court of Appeal judgment was only decided within the last few years, that that was the only point I would have known that there was a lawful claim! So having only recently been able to afford advice and with the claim still being within 3 years of my knowledge of the outstanding claim and the fact the claim has already been made by the landlord through the property claim form in 2006 the claim remains outstanding.

After then further telephone advice and clarification by my solicitor a letter was written by my now appointed barrister to the housing association to forward to the insurers;

He took this line based on the advice I paid for (although it is further down the blog to read in full)…

In Brief…

I have recently taken legal advice and have been told that in the Court of Appeal Judgment on 25th May 2013 where it states in paragraph 42 in such absolute terms that "the repair of the structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]" and added that "in the face of these provisions there is no reason based on necessity or business efficacy to alter the balance of the scheme by imposing an implied covenant to repair on the landlord ..." It now seems to me I need to assert or recover any of the contractual benefits of the policy which I might be entitled to limited to damage to property.



The reason I appointed a barrister is because I sent this to the Housing Association and was ignored.

Dear One Housing Group,

You failed to pursue the two insurance claims of ventilation at 106 & a floor at 104 that you knew about in a proper way. You the landlord had an obligation to insure the building against a specific set of insured risks. To pursue an insurance claim where the building becomes damaged, by one of those insured risks. You failed to pursue the claim that you knew about in a proper way. Subject to time, re-litigating etc I am re-visiting whether you, the landlord fulfilled its obligations to pursue the insurance claim.

I am using the law of; Vural Ltd v Security Archives as my main case law.

That case is about harassment; insurance payments were delayed by the landlord, to put the tenant out of business, so that the landlord could evict the tenant.

Here is an email from Jan Luba QC specializing in Landlords & Tenants law (shortened for relevance);

From: Jan Luba QC <janl@gclaw.co.uk>
To: scarletmaguire@yahoo.com; jo@spaceshift.co.uk
Sent: Tuesday, 14 August 2012, 10:37
Subject: YOUR APPEAL

Dear Jo,

It seems to me that in so far as it is the determination of a complaint that the insurers (UKGI(I)Ltd)  agreed to meet the legal costs of their insured (the landlords) in the litigation, the FSO was right to decline jurisdiction. That was a matter between that insured party and their insurers.

But equally, it would seem to me that the FSO has jurisdiction to investigate a compliant that the insurers (UKGI(I)Ltd)  refused to meet the legal costs of another of their insured (the tenants) in that litigation. In any event the FSO must have jurisdiction to investigate a compliant that the insurers (UKGI(I)Ltd)  refused to meet the full claims of their insured (the tenants) arising from loss consequent on flooding etc. I do not know if you have made any such complaint.

Jan
JAN LUBA QC
57-60 Lincoln's Inn Fields
London WC2A 3LJ
DX: 34 Chancery Lane
Direct dial number: 0207 993 7794
Direct fax number: 0207 269 0794
This email advice was requested in relation to the Financial Services Ombudsman but I am using the last part in relation to outstanding claims regarding the structure of both shops since the Court of Appeal findings in May 2013 and their relevance to the two outstanding insured, structural material damage, claims.

In August 2008 this email (shortened for relevance) was sent to us from the landlord

From: Monique Jamera
Sent: 12 August 2008 17:13
To: 'scarletmaguire@yahoo.com'
Subject: RE: RE: leaks at 106-108 Cromer Street - Building Regulations and Health & Safety

Hi Chantal
  
I note your comments about the ventilation and would draw your attention to the clause in your lease 5 (14).  The responsibility of complying with Health and Safety legislation is the tenant’s.  In any event I do not believe the premises do not comply and doubt whether the insertion of air vents will solve all the problems

If you disagree with our analysis then your option as you say to legal recourse is always there.

Regards,

Monique Jamera
Commercial Property Officer
Tel: 020 7428 5592
Mob: 07515 598 515 

Here are a few more references to us, asking for the repair of the structure, since 2005 in the property claim form & throughout;

Paragraph sent from Bircham Dyson Bell on the 7th Jan 2009

As discussed yesterday, in order for me to convey your concerns about the current state of the property, it would assist if you could prepare a short e-mail setting out a bullet point list of the defects which you say are outstanding to both properties and which are preventing you from trading.  I can then present this list to my client and the insurance companies.

Also here is another email from the landlord referring to Mathew Greenland the insurance company broker on 8th May 2008;

Hi Jo

I've been in touch with Matthew from Farr Insurance (who I have copied into this e-mail) who has been on annual leave since we last spoke.  I've asked him for an update on this claim and he has advised me that he will get back to me once he reviewed all communications since he has been away.  As you are aware we can not make arrangements for repairs until the insurers have accepted the claim.

I hope to hear from Matthew later today if not tomorrow and will inform you accordingly.

Also later in an email which I have on disclosure Matthew asks not only for photo's which the landlords surveyor took of the damage to the floor at shop 104 which he says he has asked for since Feb 2008 but he also asked if a 'cessure of rent' claim has been put in and if not why not


Here is the quote from worldwide expert in damp Mike Parrett after a 4-stage survey of our premises with regards to the ventilation in 09.

13.7
"Additional static ventilation to the main cellar room to business unit 2 should be provided to comply with the requirements of the approved document Part F of the current Building regulations."

And further as clarified (and that being when yourselves & I were first made aware) in by Lord Justice Patten on 25th May 2013 at the Court of Appeal.

paragraph 42 said in absolute terms that "the repair of the structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]" and it added that "in the face of these provisions there is no reason based on necessity or business efficacy to alter the balance of the scheme by imposing an implied covenant to repair on the landlord ...".  

paragraph 43 to "the existence of what the parties obviously intended should be a comprehensive scheme for the repair of both the demised and the retained parts of the building"

paragraph 38, what they say is that "disrepair of the structure ... constitutes an insurable risk and the landlord is required under the terms of the leases of 104 and 106 to apply the insurance monies in making good the damage and disrepair"

The Court's basic point is that in appropriate circumstances the landlord has an obligation to pursue the insurance route.  Looking at clause 7(2) of the lease, if the premises are damaged by an insured risk the landlord must (to paraphrase) with reasonable speed use all relevant insurance monies received from the insurers to repair/reinstate the premises.  This in turn, in my view, implies that the landlord has an obligation to use reasonable effort to pursue an insurance claim.

 Since the repair to the structure was made in March 2012, 18 months after the premises were taken off us, subject to permission to appeal, (see attached photo’s) and the premises are still not let now in 2015 this indicates ongoing material damage for which claims are still outstanding.

I am re-visiting if there is anything you can do with the insurers to speed up the outstanding claims for material damage that you made in the property claim forms in 2005, in the light that your own liability has been established and in view of your duty as established in the Court of Appeal in May 2013 to chase up our outstanding insurance claims namely the ventilation at 106 & the floor at 104 and any reasonable offer of settlement due to the insurance delays and consequential losses.

If this can be done outside of the courts this would be preferable as reasonable people.

Kind Regards

Ms Jo Flores

spaceshift...
in association with Scarlet Maguire Gallery
UK
Tel: 00 44 (0) 20 7837 6680
Mob: 07916 325037
www.spaceshift.co.uk
www.scarletmaguire.com
www.onepercent4art.com

Once I appointed a barrister taking more time he got this reply;



Tuesday, 21 June 2016

Children and Social Work Bill - completing at the House of Lords in 8 days... on it's way to making law.





Dear Cross Parties, Professional Organizations, Bodies, Individuals and Press,

As former chair of the National Association of Young People In Care NAYPIC I write to you all in regards to the Children and Social Work Bill 2016.

In 1987 when I became a Management Committee member of London NAYPIC one of the first things I was tasked with was to feedback on the green paper of what then became known as the 1989 Children Act, which I saw to completion.

Although I was just 17 years old I had completed the Community Care Course at Hammersmith and Fulham College and was well into completing my first year at Brixton doing the Preliminary Course in Social Care PCSC.

I found that due to my care experience, the green paper although somewhat lengthy, to my mind anyway, was not a difficult task to feedback on. However when I gave it back both NAYPIC and the Children’s Legal Centre with whom NAYPIC shared a building with both were stunned at the level of detail, I had fed back on.

Many of you will now have gathered the why’s and wherefores of what happened to NAYPIC and during my many years of service to the organisation both paid, for 5 yrs as their London Development Officer and not paid as their National Chair of the National Executive Committee for just one year before Government closed NAYPIC and subsequently the rest of my life as the commercial director very much unpaid and having spent hundreds of thousand of pounds of my own money to advocate the deeply held belief in the loud voice of the most vulnerable babies, children and young people in our society, children in care, it is with utter horror to me personally that the 31 pages Bill speeding it’s way to legislation has no place for the voice of those children. This I find is an absolute affront to my life’s work.

So with this I make a proposal and I hope that you all take notice and unilaterally agree that we should no longer silence the most vulnerable in our society and in fact we should embrace the voices of all children in the UK learning, our most heart felt lessons, from those that have experienced, the roughest of deals, those through no fault of their own who are in care, NAYPIC.

I accept the reality that like a speeding train this Bill is on it’s way and many of you may think we have more in common than less when it comes to caring for children but it is rights I am advocating for, rights that will eventually come to children anyway with or without you.

I ask that our Bill be a part of your CSWB statutory Bill but it is for us at last an independent budget by law, for the voice of all children in the UK, 12 million pounds per year, for the 12 million children in the UK, by law.

For children have no financial muscle and no way of lobbying for their too, tin pot ideas or their part in private or CIC shares, no way of real independence, so they need an economy that cannot be taken away from them any more. And we should never ever be afraid of our children’s voices as our lesson for future generations to come. Add in urgently the children's independent voice and budget by law.


The YE-HA (Youth Economy) Bill
Introduction
1.     The Children’s Act 1989 recognised that the welfare of the child is paramount and set out an overarching system for safeguarding children and the roles different agencies play. It introduces the concept of consulting children and young people based on their age and understanding.
2.     The UN Convention on the Rights of the Child 1989 was ratified by the UK in 1991. It set out the principle for a legal framework to underpin all aspects for the care, development and education of all children. It sets out the first ever right to ‘freedom of expression’ and ‘freedom of association’, for children to meet and form associations.
3.     The Government having considered over 30 public inquiries into child care since the 1970’s should adhere to these recommendations in both the Children Act 1989 and the UN Convention on the Rights of the Child 1989 legislations and these recommendations should now be built upon. The current child sexual abuse inquiry will look into the local authorities 'duty of care' a legal term, yet the Children and Social Work Bill proposes to suspend all 'duties' again a legal term for the next 6 years, ironic?
4.     There is no central agency that expresses the child’s view-point on any issue of public importance that concerns children and young people directly. In fact most agencies pay mere lip service to consumer involvement and may just tick boxes to adhere to ‘freedom of expression’ legislation by using token representatives, from think tanks to government working parties. Children and young people do not run most if not all, child consumer organisations. Their governance is made up of senior adults often with establishment links. Many consumer child-care groups are reliant on government or other funding. This cannot allow them any freedom to express themselves.
5.     It is time we act on children’s rights legislation as a matter of urgency. In the face of political resistance to investigating matters of historical abuse we may not ever be able to truly understand the magnitude to which children have suffered in the past. However for us to change the course of history currently, rather than wait on yet another public inquiry, we must be able to see and hear and firmly put the child in the public eye immediately.
6.     Proposal to be voted on in this Bill is that each child & young person 18 and under has a pound each year, in sterling, to be ring-fenced for the twelve million children and young people in the UK from the Treasury. This will provide financial independence as a statutory right enshrining current law in practical terms, to meet and form associations and to have freedom of expression. It may in turn start to inform us the public of the wishes and feelings of the child in the UK preventing child abuse in the future.
Reference; UN Convention on the Rights of a Child 1989, Children Act 1989, Disability Discrimination Act 1995 and 2005, Protection of Children Act 1999, Special Educational Needs and Disability Act 2001, Adoption and Children Act 2002, Every Child Matters: Change for Children 2003, Children Act 2004, Working Together to Safeguard Children 2006, updated 2010, Safeguarding Vulnerable Groups Act 2006, Childcare Act 2006, Education (Nutritional Standards & Requirements for School Food) Regulations 2007, amendments 2008, The Charter for Children’s Play 2007, updated 2009, The Play Strategy 2008, Early Years Foundation Stage (EYFS) 2008, amended 2012, Equalities Act 2010.



Useful references.

On it's second reading House of Lords 15th June 2016 

Fifteen Peers expressed concerns about Clause 15 of the Bill, which introduces a fast-track process for removing rights and safeguards which Lord Warner explained "have built up over many years—indeed, over many decades".

Sweeping Powers
'the Secretary of State may by regulation AMEND any part of the Bill for the purposes of cost'

Wednesday, 25 May 2016

Hand delivered and sealed 24th May 2016 - the law is so interesting

The Supreme Court of the United Kingdom                                                      Ms Jo Gavin 
Parliament Square                                                                                              32 Tonbridge House
London                                     Tonbridge Street
SW1 3BD                                   London
                                                                                                                            WC1H 9PB

                                                                                                                            24th May 2016

Dear Lord Kerr, Lord Carnwath and Lord Toulson,

Thank you for your reply dated 5th February 2014 regarding my appeal lodged with the Supreme Court on 21st June 2013, from a decision made at the Court of Appeal case number B5/2010/2396 in the Case of:

Flores (nee: Gavin) and another 
V
Community Housing Association (now: One Housing Group)

As you will be aware I was at the European Court of Human Rights up until April 2014 and then due to having to pay for legal advice myself since, it has taken some time to legally respond to your refusal to give me permission to appeal to the Supreme Court, where you submit there is no arguable point of law.

I therefore apologies for my late reply but feel I must raise a nuance that I have been advised of now by several lawyers. 

The Court of Appeal said there was no liability for CHA (nor myself I might add) to repair the structure. Instead they said that both parties were insured and that the structure was catered for in the lease by building insurance.

Once I could get a lawyer I asked him to write to the landlord to recover my losses, based on the Court of Appeal judgement. 

This is what he wrote;

Mick Sweeney CEO
100 Chalk Farm Road,
NW1 8EH.
17th March 2016
Dear Mr. Sweeney,

RE: MS MARY JOSOFAR VALDIVIESO FORTUNO FLORES

My name is REDACTED, a barrister authorized by the Bar Standards Board to provide representation on a Direct Access Basis. 

I have been instructed to represent Ms Mary Josofar, Valdivieso Fortuno Flores, abbreviated in the Court of Appeal in May 2013 to Ms Jo Flores, who was originally Ms Mary Moss, Chairperson of New NAYPIC / Youth Parliament and then was known to you from 2000 as the commercial tenant of both premises 104 & 106-108 Cromer Street WC1H 8BZ as Ms Jo Gavin in the case of; Gavin and Cracy v Community Housing Association (2008-2013). I write this letter on my client’s behalf in relation to outstanding matters concerning this case. 

Ms Jo Flores (and later her then business partner from 2004-10) became a tenant of two commercial properties 104 & 106-108 Cromer Street from 2000 to 2008 when the landlord she says trespassed/forfeited both properties for a disputed non-payment of rent, after the tenants had suffered a series of disrepair at both premises for four years, including no ventilation breaching part F building regulations (not fit for human habitation) and several leaks including waste pipes bursting into the premises for which the tenants believed they had an unreasonably long delay and still outstanding claim on the insurance, so that they could have use of both premises, as established in court in July 2010 at a ten days trail and then in a permission to Appeal hearing in Dec 2012 and finally culminating with the outcome in May 2013 that the structure was insured.

After the Court of Appeal hearing in May 2013 having represented herself she went on to the Supreme Court and then she proceeded to the European Court. 

Ms Jo Flores was left without a business at a crucial time in her children’s rights and art career and more importantly without any means to pay for a lawyer. She has therefore been slow in obtaining advice for this reason but now has done so. 

My client wrote to you in May and in June 2014 but you failed to respond. I hope that you can now answer her questions from the legal advice taken, as the claim finishes three years after any decision is made, so that deadline is the 25th May 2016. 

In the Court of Appeal Judgment on 25th May 2013 it states in paragraph 42 in absolute terms 

"The repair of the structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]" 

"in the face of these provisions there is no reason based on necessity or business efficacy to alter the balance of the scheme by imposing an implied covenant to repair on the landlord ..."

 At Paragraph [43] to "the existence of what the parties obviously intended should be a comprehensive scheme for the repair of both the demised and the retained parts of the building"

At Paragraph [38],  "disrepair of the structure ... constitutes an insurable risk and the landlord is required under the terms of the leases of 104 and 106 to apply the insurance monies in making good the damage and disrepair"

The Court's basic point is that in appropriate circumstances the landlord has an obligation to pursue the insurance route.  Looking at clause 7(2) of the lease, if the premises are damaged by an insured risk the landlord must (to paraphrase) with reasonable speed use all relevant insurance monies received from the insurers to repair/reinstate the premises.  This in turn implies that the landlord has an obligation to use reasonable effort to pursue an insurance claim.
  
So it seems Ms Flores needs to assert or recover any of the contractual benefits of the policy, which she might be entitled to limited to damage to property.

 The said insurers, UKU underwritten by Lloyds Ireland & joint excess liability insurers Royal & Sun Alliance did not fix the structure in both premises104, namely the floor from Jan 2008 to Sept 2010 & 106-108, namely the lack of ventilation breaching part F building regulations from April 2004-Sept 2010.

It was stated in the Court of Appeal in May 2013, that the structure was covered by insurance despite the landlords failed attempt to say at one point that it was the responsibility of the tenant.

Ms Flores took advice in 2014 from a partner at a law firm specializing in insurance and they advised that since the Court of Appeal judgment was only decided within the last few years, it was only at that stage she would have known there was a lawful claim. 

Ms Flores is acting now from her first knowledge of the lawful claim subject to third party insurance claims law, noted interest and that the insurance was clearly taken out by you the landlord for the benefit of the commercial tenants as established in the Court of Appeal.

The lawful claim is within 3 years of the tenants knowledge, although as Ms Flores has stated throughout, and you may agree, the claim has already been made, by you the landlord through the property claim form in 2005 and so, as such still remains outstanding. 

It is submitted that you therefore have a duty to chase up the claim, even if you have to use your current insurers to do so, in line with that duty.

 In a report from 2009 by expert Mr Mike Parrett in conducting a 4-stage survey of 106-108 premises with regards to the ventilation, he states

13.7 
"Additional static ventilation to the main cellar room to business unit 2 should be provided to comply with the requirements of the approved document Part F of the current Building regulations."

Since the repair to the structural ventilation was made in 2012 this indicates there was throughout ongoing structural material damage for which the material claims, are still outstanding.

I am re-visiting if there is anything you can do for Ms Flores with the insurers to speed up the outstanding claims for material damage that you made in the property claim forms in 2005. 

In light that your own liability not to repair was also established but in view of your duty as established in the Court of Appeal in May 2013 to chase up any outstanding insurance claims, namely the absent ventilation at 106-108 & the floor at 104 and any reasonable offer of settlement due to the insurance delays and consequential losses, I request that you now perform your duty and let my client know the outcome. 

Given the ongoing delay in relation to this matter and the fact my client has written to you previously in relation to the same issues, I request that you respond within the next 14 days so that a resolution can be achieved without the expense of further proceedings. 

Yours Sincerely
REDACTED
Barrister 



Since then the Housing Association wrote back 15/04/16 through their in house commercial property solicitor stating they would reply in 14 days but to date they have not.

I respectfully request an order from the Supreme Court following on from the legalities of the judgement at the Court of Appeal, for the Housing Association to recover my losses with me. I have drafted some particulars of claim that I think they might use for a joint claim against UK General Insurers of Old Mill Business Park, Gibraltar Island Road, Leeds LS10 1RJ formerly UK Underwriters of Leeds. 

 PARTICULARS OF CLAIM AGAINST OUR BUILDING INSURERS


 i. The Defendant building insurers knew from Sept 2005 that the third party commercial leaseholder to their insured was suffering material damage to two of her commercial premises. Both of her premises were insured for material damage with her landlords building insurance policy taken out for her benefit and for which she had paid a premium, making her a ‘noted interest’ on the building insurance policy, as seen in her two leases. The defendant building insurers breached their expressed ‘duty’ or ‘promise’ to make her, who was the beneficiary of the policy, ‘held harmless’ by repair or reinstatement of her premises. 

ii. Further the defendant building insurers by refusing to settle the valid claim therefore failed to enable the insured landlord policyholder, to comply with the legalities of the claimants leases, in Para 7 thereof: - “…in the event of damage to the demised premises by any of the insured risks (the policy holder) is obliged with all convenient speed to lay out and apply in rebuilding repairing or otherwise reinstating the demised premises all monies received by virtue of such insurance.” by a protracted avoidance of the disrepair claims for material damage, leaving the disrepair to continue.


iii. Under the (third party to the building insurance) commercial leases,the landlord was obliged to effect claims on their building insurance policy promptly wherever they had cover. They instigated this in Sept 2005 in respect of a number of disrepairs dated from 2003/4/5 that the third party claimants had either had to fix themselves by paying for their own emergency contractors and/or in some cases the landlord had fixed repairs themselves too. The landlord’s building insurers that the landlord had claimed for in the 2005 property claim form reimbursed an amount of just over £3,000 to the third party claimants. Since the structure was insured by the landlord there was some ‘property owner liability’ claims by the third party which were left outstanding by the insurer, as well as two major structural repairs, that neither the landlord nor the third party could afford to pay for. This amounted to professional negligence as the repairs in both commercial premises rendered both businesses unable to trade from and with commercial rents and running costs still having to be paid, the delays amounted to undue stress and could not been seen in insurance law as a ‘duty of good faith’ a ‘promise’ or any other kind of ‘duty’ to hold the insured or their third party ‘harmless’ nor did the insurers actions prevent further loss occurring in a commercial reality for a medium income small business.

iv. The insurers then acted in ‘bad faith’ instead ensuing a protracted avoidance of the valid claims and this prevented further action being taken promptly in respect of risks covered for in the building insurance policy. The commercial consequences of the insurers actions could only lead to the third party being continuously penalised financially and this was not only foreseeable but as it was no matter how many times there was an opportunity to mitigate the claimants continued losses in terms of rising interest, reimbursement, reinstatement or repair the insurers failed to do so until they arbitrarily set the landlord up against the tenant to fight out an unnecessary liability claim where the Court of Appeal in 2013 would eventually state both parties were insured so neither was liable for repair, in a waste of time, effort and extraordinary costs to themselves and for what? 


v. The Defendants building insurers continued to act in ‘bad faith’ by paying for the legal costs of one side of a situation that they caused and/or permitted to continue a dispute between the landlord and tenant that would lead to years of court proceedings and they failed to take any sensible and necessary steps to stop, prevent or remedy the situation. This we were made aware was a commercial decision based on larger liabilities than the third party claimants alone, potentially leading to floodgate litigation cases regarding the law of a precedent. They acted in ‘bad faith’ putting their commercial interests first in a conflict of interest.



vi. The Defendant building insurers were made aware from the start of the claim in 2005 of the good work of the third party building insurance claimant and therefore the morally principled urgency to settle the claims expediently so as not to have a detrimental effect on such important work, as well as the nature of the claimants entrepreneurial youth parliament aims, in this commercial social enterprise associated with the prevention of child abuse which later on during protracted court proceedings became subject to a police criminal investigation which became widely publically known as Operation Fernbridge, formerly Operation Fairbank to which the claimant had been central to and that she had set up both premises and further, the types of corporate clients she was attracting and the value of such business. Further, they were made aware of all other continuing problems occurring as soon as they arose. This however did not prevent delays in settlement and presents a similar case that had the correct credentials to overturn the much renowned case of Sprung V Royal Insurances where there is no damages for delays in paying of a valid claim in England as opposed to Germany, Italy, United States and Canada, China and even Scotland and is said to be a much needed law change in England. Some delays as in this case have dyer consequences.


vii. The defendant building insurers were negligent in that they delayed in instigating repairs and/or replacements causing ongoing and increaseddamage and/or loss of business and of business opportunity.



viii. They were further negligent in failing to replace the damaged floor in one of the third party commercial premises after a flood from the insured landlords property, when it was foreseeable that if they did not this would cause interruption to business.

ix. They were further negligent in failing to repair the structure in one of the third party commercial premises, when it was foreseeable that if they did not this would make the business illegal to trade from as it had no air.

By reason of all the aforesaid the Claimants have suffered loss and damage, loss of reputation and goodwill, distress, depression, stress andinconvenience AND the Claimant claims: - 

1. Damages (Schedule of Loss to follow) 
2. Exemplary damages 
3. Further or alternatively, re-payment of rent paid at £47,994 plus   interest during the periods the Claimants unable in part or in whole to use the premises 
4. Interest pursuant to Section 35A of the Supreme Court Act 1981 
5. Costs 
6. Any other remedy the Court deems fit
May I remind the Courts that UK Underwriting LTD made a judgement call as far back as 2005 not to except liability for the structure in a preliminary report where they judged that the probable outcome would be fees but the worst case would be £30,000 and ask you to consider the order now for them to pay.

I have served this letter to the solicitors for the other side today.
Although I am aware that the building insurers UKU are covering the housing associations costs it is not outside their scope to disassociate using there current Zurich Insurers to recover from UKU or perhaps UKU can now settle the matter that has caused the divide between us.

If an order is made, then at the very least I can stop being ignored so as having to come back to bother the courts in the very same matter.

With Kind Regards

Ms Jo Flores (Nee: Gavin)