We have acted for and represented defendant businesses on the receiving end of claims, demands or legal proceedings instituted by a consumer. It is important, when a claim is made against your business, that before you reply to any claim or take a formal position on the matter in correspondence or otherwise, you obtain legal advice on your position and on where you stand.
Often, consumers make vexatious or frivolous claims, making allegations that are unsubstantiated, untrue or otherwise simply unable to be successfully pursued. Consumers very often place very minimal weight on the terms and conditions of any sale or the overall factual circumstances, but simply take a broad blanket approach by mistakenly understanding it to be normal practice that ‘the customer is always right’. In our experience, this is certainly not the case. Each matter will be determined on its own merits.
As a business operator, you need to be very careful when sending correspondence or responding in any way to a consumer claim. The very first phone call you make or the very first letter that you send could be the very things that hurt or prejudice your legal position significantly, often to such an extent that by the time a business operator will decide to seek legal advice, significant damage may have been caused to the legal position of the business, as a result of the insufficiently considered steps taken by the business operator, by making a phone call or writing a letter to the consumer, without first seeking legal advice.
Many businesses have insurance policies in place already, to protect against public liability, products liability and/or professional indemnity matters, but very often business clients require legal assistance in dealing or liaising with insurance companies, who are very sophisticated and apply the terms and conditions of their insurance policies, most notably the exclusion clauses of those policies, very tightly, with a view to protecting their own position and not only that of the business client.
Many business owners are under the impression that any consumer claim will be responded to by an insurer when, in simple fact, this is simply not the case. Business owners often find themselves having to liaise with insurance companies, who are highly experienced and often mistakenly understood to be independent and protecting the interests of the business, when in fact the insurer is looking to protect the interest of the business to a duty no higher than the terms of the insurance policy.
If a claim has been made against you or your business, you should immediately seek legal advice. You should seek that a lawyer will assist you with liaison with the consumer and/or any insurance company. Very often, we limit our retainer in these matters to the following steps:
- Obtaining a detailed understanding of the issues;
- Determining the legal rights and obligations between the consumer and the business;
- Determining the legal rights and obligations between the business and the insurer;
- Providing a preliminary legal opinion to the business on strategy and options; and
- Liaising with the consumer and/or the insurer on behalf of the business, to ensure minimization of risk or prejudice to the legal matter of the business, with a view to ensuring that the insurer continues to indemnify the business under the terms of its policy and does not seek to escape liability on any unfounded ground, so that any costs or risk in the matter is carried by the insurer, in accordance with their contractual obligations to the business.
Before you consider liaising with either a consumer or an insurer in relation to a claim, you may wish to contact our firm by telelphone on (02) 9233 4048 or email us at email@example.com and make time to see one of our solicitors.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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