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No Insurance after using cash and carry, What does fully comp mean.
LOVESFILM2
post Wed, 20 Jun 2018 - 14:42
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Over the weekend a good friend of mine borrowed his brothers people carrier to go the cash and carry as their family were having a forth coming wedding and stocking up on food and drink.
A was stopped by police and told that even though he had fully comp insurance and his brothers permission to drive his fully comp vehicle , he was not insured to carry goods bought from cash and carry.
The vehicle was impounded and he was told he would be reported for no insurance.
His brother paid £150 to get the vehicle back and now they wait to be prosecuted. They both have many years no claims and regulary use cash and carries as they have big families.
I dont believe this is right as it could be said we all do the same using supermarkets.
Any help on the best way to proceed to stop this madness, thank you
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The Rookie
post Sat, 23 Jun 2018 - 07:19
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Well no, the insurance company have said it was valid if the use was as described, as the Police are saying the use was not as described to the insurer, the insurance company statement of itself is no use. Patterson refers to when an insurance certificate is produced as per paragraph a) of the statute, as it was not, that is to some extent a red herring.


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DancingDad
post Sat, 23 Jun 2018 - 11:42
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I keep wondering how important, if at all, the calls that the cop made to the insurance company would be if it came to court?

OP said earlier that cop only asked if commercial insurance was in place, which suggests cop had made mind up before calling that this was business use.
I would be asking insurance if a transcript of both calls from cop could be available, just in case they would help.
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LOVESFILM2
post Sat, 23 Jun 2018 - 21:19
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QUOTE (baggins1234 @ Thu, 21 Jun 2018 - 18:56) *
One of the fundamental issues here is none of us know EXACTLY what was said by whom.
You have it second hand from your friend as to what he said, and from your friend, third hand as to what the officer said.
Unless there is BWV or another sort of recording then it will never be known.
The most accurate record, whether you like it or not, will be the officers PNB which ideally ought to be compiled as soon as possible after the incident.
Until your friend receives an evidence pack prior to a NG plea (if he takes that route) that contains the officers statement then no one will know what he has recorded.
Unfortunately the situation with insurance and business use is very prevalent nowadays and such seizures are commonplace as, sad to say, a lot of people take the risk that they won’t be caught.
For example, I’ve dealt with youngsters who have advertised on social media that they are available to transport their mates into and out of town on a night for £5 per head. They get stopped and wonder why they are getting prosecuted for no insurance (specifically not the correct insurance for the type of use being undertaken...hire or reward)
Additionally akin to the example you’ve quoted, I had to deal with a van driver who’d borrowed the van from his friend to go to a cash and carry to get himself stuff for a family party. All good so far, but then he said half of the load was for the van owners business and he was getting paid to pick it up for him. Again, the insurance isn’t valid for the specific type of use.

Ok..what’s the harm? When it all goes wrong and someone gets hurt in a collision and the insurance company declines to pay out for 24 hour medical care for the next 60 years as did happen in one of the above cases


QUOTE (LOVESFILM2 @ Thu, 21 Jun 2018 - 07:36) *
I personally see it as that and in fact I also see it as racism as the officer has clearly decided just looking at my friend and the contents of the car. To check the insurance for commercial and not even give a chance of a warning for me just shouts racist and I am 64 and white.


So by saying this presumably you’d be happy for a potentially uninsured vehicle be allowed to continue its journey on a road? So when said vehicle runs someone over and kills them you’d presumably be happy for the officer not to be in trouble?

You see it as racist? On what evidence are you basing this assertion?


Firstly I am against anyone driving without insurance. On the racism being white and over 60, I know I have the tee shirt for a lot of things and when I found out how my friend was treated I could only draw one conclusion that I believe the officer to be prejudice, yes its a gut feeling but he did not follow a procedure to make me think any other way. We all have opinions and that is mine

QUOTE (Churchmouse @ Fri, 22 Jun 2018 - 22:35) *
QUOTE (The Rookie @ Fri, 22 Jun 2018 - 18:17) *
What the insurance companies say isn’t really that helpful of itself, it doesn’t seem in doubt he was insured if it wasn’t business use, the issue is whether it was, telling the insurance something one thing doesn’t, of itself, make it true.

What would be useful is something from the insurers indicating his description and that under those circumstances he would be insured, if the Police (or court) accept that his description was true and accurate then the case must be dropped (or him acquitted), if they do not accept that version is true they won’t.

We have been told that the insurer has already indicated that the policy was valid as far as they are concerned, so it will be up to the police to somehow establish that the policy terms had been breached and, thus, the policy invalid. The policeman has alleged "business use", but (apart from NML's understandable confusion), we have seen no evidence that the vehicle was actually being used for business purposes--indeed this has been explicitly denied. If Patterson is right about the burden shifting (I have not checked this), the burden of proving business use beyond a reasonable doubt will fall upon the prosecution--whence will such evidence come?

--Churchmouse

Thank you.

I am going to talk to my friend tomorrow and get everything that happened and most importantly the reason he was given for the stop in the first place. I am sorry I am late in replying but am all over the place at moment as a few things on.
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Churchmouse
post Sat, 23 Jun 2018 - 23:03
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QUOTE (The Rookie @ Sat, 23 Jun 2018 - 08:19) *
Well no, the insurance company have said it was valid if the use was as described, as the Police are saying the use was not as described to the insurer, the insurance company statement of itself is no use. Patterson refers to when an insurance certificate is produced as per paragraph a) of the statute, as it was not, that is to some extent a red herring.

We don't know what the insurance company representative said to the police officer, but we do know (well, as much as we can know) that the insurer has since confirmed that the driver was covered by a policy of insurance at the relevant time. For all we know, the police-insurer conversation could have been limited to a simple confirmation that the driver's policy did not cover business use and there was no discussion of the reasons for the query. Alternatively, the police constable could have had an in-depth discussion of the finer points of insurance law with a temporary agency call handler reading from a script. In any event, we do not know.

The insurance company's statement, assuming it is put in writing at the driver's request and available in court, will be highly relevant to establish "prima facie evidence of insurance cover" meeting the statutory requirements per s.143 RTA 1988. Which statute are you referring to? I'm referring to the threatened no insurance charge, which is is a different issue than the subsequent seizure.

The Patterson Law website I linked to earlier is exactly on point:
QUOTE
So for example, if someone has a social and domestic insurance policy covering the use of that vehicle by them on that particular date and it is suggested by the prosecution that the nature of the usage was not in accordance with the specific terms and conditions of the policy, (so a social and domestic policy where it is suggested by the officer that the vehicle is being used for business purposes at the time the driver is pulled over) the burden reverts back to the prosecution to prove beyond reasonable doubt that the insurance policy would not have covered the individual to do what they were doing, rather than the burden being on the driver to prove that it would have covered them.

Therefore if you can establish prima facie evidence of insurance cover the burden goes back to the Crown prosecution service to prove that the policy would not have covered the driver in those particular circumstances.

The police do not seem to have appreciated this change / shift in no insurance offence case law.

This often means that they do not go to the necessary lengths to establish proof in relation to what it is the individual is doing at the relevant time and in order to prove beyond reasonable doubt that they would not have been covered if the matter was to proceed to trial.

Patterson goes on to say that even if the police are right, that the driver's use did "invalidate" his insurance, that any such immediate cancellation would still not be retroactive to the time of the alleged offence. This is likely because a policy of insurance usually has to be actively (as opposed to automatically) cancelled by the insurer (including any relevant notice period) in order for the insurer to avoid its third party liability obligations, which logically means that the driver would have met his third party insurance obligations up to the point of cancellation (which would necessarily have been subsequent to the police-insurer pow wow). It would obviously be against public policy if an insurer could avoid its obligations to third parties simply by "discovering" that the policyholder had been in breach of some term or another of his insurance policy at the time the liability had arisen.

--Churchmouse
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LOVESFILM2
post Sun, 24 Jun 2018 - 06:21
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QUOTE (Churchmouse @ Sun, 24 Jun 2018 - 00:03) *
QUOTE (The Rookie @ Sat, 23 Jun 2018 - 08:19) *
Well no, the insurance company have said it was valid if the use was as described, as the Police are saying the use was not as described to the insurer, the insurance company statement of itself is no use. Patterson refers to when an insurance certificate is produced as per paragraph a) of the statute, as it was not, that is to some extent a red herring.

We don't know what the insurance company representative said to the police officer, but we do know (well, as much as we can know) that the insurer has since confirmed that the driver was covered by a policy of insurance at the relevant time. For all we know, the police-insurer conversation could have been limited to a simple confirmation that the driver's policy did not cover business use and there was no discussion of the reasons for the query. Alternatively, the police constable could have had an in-depth discussion of the finer points of insurance law with a temporary agency call handler reading from a script. In any event, we do not know.

The insurance company's statement, assuming it is put in writing at the driver's request and available in court, will be highly relevant to establish "prima facie evidence of insurance cover" meeting the statutory requirements per s.143 RTA 1988. Which statute are you referring to? I'm referring to the threatened no insurance charge, which is is a different issue than the subsequent seizure.

The Patterson Law website I linked to earlier is exactly on point:
QUOTE
So for example, if someone has a social and domestic insurance policy covering the use of that vehicle by them on that particular date and it is suggested by the prosecution that the nature of the usage was not in accordance with the specific terms and conditions of the policy, (so a social and domestic policy where it is suggested by the officer that the vehicle is being used for business purposes at the time the driver is pulled over) the burden reverts back to the prosecution to prove beyond reasonable doubt that the insurance policy would not have covered the individual to do what they were doing, rather than the burden being on the driver to prove that it would have covered them.

Therefore if you can establish prima facie evidence of insurance cover the burden goes back to the Crown prosecution service to prove that the policy would not have covered the driver in those particular circumstances.

The police do not seem to have appreciated this change / shift in no insurance offence case law.

This often means that they do not go to the necessary lengths to establish proof in relation to what it is the individual is doing at the relevant time and in order to prove beyond reasonable doubt that they would not have been covered if the matter was to proceed to trial.

Patterson goes on to say that even if the police are right, that the driver's use did "invalidate" his insurance, that any such immediate cancellation would still not be retroactive to the time of the alleged offence. This is likely because a policy of insurance usually has to be actively (as opposed to automatically) cancelled by the insurer (including any relevant notice period) in order for the insurer to avoid its third party liability obligations, which logically means that the driver would have met his third party insurance obligations up to the point of cancellation (which would necessarily have been subsequent to the police-insurer pow wow). It would obviously be against public policy if an insurer could avoid its obligations to third parties simply by "discovering" that the policyholder had been in breach of some term or another of his insurance policy at the time the liability had arisen.

--Churchmouse

Thank you Churchmouse, if I am reading this correctly what was stopping the owner of coming to pick up the vehicle as they could have just parked it up until he arrived. Why would the officer wanted to have take the vehicle so quickly when my friend could have called a courier to take the contents home and driven home himself. At no point was either Insurance policies cancelled, so I am struggling to work out why the officer had to take the vehicle. The owner recovered it later showing his insurance and paying £150.
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Esmerobbo
post Sun, 24 Jun 2018 - 06:29
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Do you think what was purchased had any relevance to what the officer thought? You say he was buying for an upcoming wedding so if he bought items which would suit that scenario all well and good but if he had items which would seem more like they were for resale you could see were the officer may have been swayed.

A case or two of champers and a tin or two of caviar may be ok but 50 fresh loaves and 1000 toilet rolls might be a bit suspicious!

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The Rookie
post Sun, 24 Jun 2018 - 07:35
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QUOTE (Churchmouse @ Sun, 24 Jun 2018 - 00:03) *
We don't know what the insurance company representative said to the police officer, but we do know (well, as much as we can know) that the insurer has since confirmed that the driver was covered by a policy of insurance at the relevant time.

The insurance company would never have said that, it would only be if the circumstances were as described, if they were lied to and it was commercial use then he wasn’t covered was he, which is why what the insurer has said is pretty irrelevant other than the driver showing that his facts are true, when there isn’t a debate about whether he as insured or not anyway.


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LOVESFILM2
post Sun, 24 Jun 2018 - 10:35
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QUOTE (Esmerobbo @ Sun, 24 Jun 2018 - 07:29) *
Do you think what was purchased had any relevance to what the officer thought? You say he was buying for an upcoming wedding so if he bought items which would suit that scenario all well and good but if he had items which would seem more like they were for resale you could see were the officer may have been swayed.

A case or two of champers and a tin or two of caviar may be ok but 50 fresh loaves and 1000 toilet rolls might be a bit suspicious!



I can see that, so I will ask him what he had bought. That makes a lot of sense, thank you

QUOTE (The Rookie @ Sun, 24 Jun 2018 - 08:35) *
QUOTE (Churchmouse @ Sun, 24 Jun 2018 - 00:03) *
We don't know what the insurance company representative said to the police officer, but we do know (well, as much as we can know) that the insurer has since confirmed that the driver was covered by a policy of insurance at the relevant time.

The insurance company would never have said that, it would only be if the circumstances were as described, if they were lied to and it was commercial use then he wasn’t covered was he, which is why what the insurer has said is pretty irrelevant other than the driver showing that his facts are true, when there isn’t a debate about whether he as insured or not anyway.



In a way isnt this putting the police in the position of an Insurance agent who decides who is covered and who is not. For me the police are there to check if a person has insurance or not. In this case they had Insurance, the question is how did the officer decide it was for business use without fully checking anything. It seems the power has gone to his head and if he says so then a Magistrate will simply agree. I never liked how the officer treated my friend when I heard and my mind still has not changed to what I think the officer is.
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cp8759
post Sun, 24 Jun 2018 - 12:21
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QUOTE (LOVESFILM2 @ Sun, 24 Jun 2018 - 11:35) *
In a way isnt this putting the police in the position of an Insurance agent who decides who is covered and who is not. For me the police are there to check if a person has insurance or not. In this case they had Insurance, the question is how did the officer decide it was for business use without fully checking anything. It seems the power has gone to his head and if he says so then a Magistrate will simply agree. I never liked how the officer treated my friend when I heard and my mind still has not changed to what I think the officer is.

The police don't decide anything, the courts do. Taking everything you've said at face value, to my mind this is not a complicated case at all.

You friend should be able to get together one or more witnesses to confirm that he was using the vehicle to stock up on food and drink for a wedding. Evidence of the wedding preparations should be very easy to adduce (there must be invitations, bookings, or at least enquiries with relevant venues / a photographer, presumably an engagement ring has been bought, there's a bride and groom and so on). The owner of the people carrier can also come along and confirm that he had lent the vehicle for the purposes of getting food and drink for the forthcoming wedding. The certificate of insurance should be easy to adduce, together with a letter from the insurance company showing that, in the circumstances described, the insurance was valid (although the certificate on its own would suffice).

If you put forward all of the above, the burden shifts to the CPS to provide beyond reasonable doubt that you were using the vehicle for commercial purposes or the insurance was otherwise invalid, which from what you've told us should be impossible. Therefore (for once) an easy win.

If your friend had his insurance certificate on him, and he produced it to the officer, he can take it further and sue the police in the small claims court to get the £150 back + any consequential losses (i.e. taxi costs and so on).

This post has been edited by cp8759: Sun, 24 Jun 2018 - 19:27


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Churchmouse
post Sun, 24 Jun 2018 - 19:05
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QUOTE (The Rookie @ Sun, 24 Jun 2018 - 08:35) *
QUOTE (Churchmouse @ Sun, 24 Jun 2018 - 00:03) *
We don't know what the insurance company representative said to the police officer, but we do know (well, as much as we can know) that the insurer has since confirmed that the driver was covered by a policy of insurance at the relevant time.

The insurance company would never have said that, it would only be if the circumstances were as described, if they were lied to and it was commercial use then he wasn’t covered was he, which is why what the insurer has said is pretty irrelevant other than the driver showing that his facts are true, when there isn’t a debate about whether he as insured or not anyway.

No, I said covered by A policy of insurance, i.e., the prima facie insurance policy meeting the statutory requirements. The driver is required to prove (by a preponderance, presumably) that he has such a policy of insurance. Having done so, according to Patterson the burden of proof then shifts back to the prosecution to prove beyond a reasonable doubt that the driver was not driving in accordance with that policy. Accordingly, if this were to go to court, the driver would have to produce the proof of insurance, and the CPS would have to prove that the driver was using the vehicle in a manner not covered by that policy. We don't know what evidence was gathered in support of that, and the driver/OP says that there isn't any, so it would probably be difficult for the CPS to prove the allegation in court.

It would be a good idea for the driver to obtain evidence in support of his non-business use of the vehicle, as cp8759 suggests, but strictly speaking, if Patterson is right, the burden of proof should rest on the CPS to prove business use, rather than on the driver to prove non-business use.

--Churchmouse
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The Rookie
post Sun, 24 Jun 2018 - 20:17
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Yes, but that’s a private law firms opinion, the point is if the driver were lying through there back teeth and it was commercial use they would be uninsured, so the onus is still on whether they are telling the truth or not, not what the insurer says would be the situation if they were telling the truth. I think you are giving far too much weight to what the insurer says, for me the priority is still proving the use was private.


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NewJudge
post Sun, 24 Jun 2018 - 20:36
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QUOTE (The Rookie @ Sun, 24 Jun 2018 - 21:17) *
... for me the priority is still proving the use was private.


But from what has been said earlier, the burden is on the prosecution to prove the vehicle was being used for business. It is not the defendant's task to prove it was not.
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cp8759
post Mon, 25 Jun 2018 - 01:03
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QUOTE (NewJudge @ Sun, 24 Jun 2018 - 21:36) *
QUOTE (The Rookie @ Sun, 24 Jun 2018 - 21:17) *
... for me the priority is still proving the use was private.


But from what has been said earlier, the burden is on the prosecution to prove the vehicle was being used for business. It is not the defendant's task to prove it was not.

Well quite, the CPS have to prove the defendant is guilty beyond reasonable doubt. If the defendant can show on the balance of probabilities that the vehicle was insured, the CPS don't stand a chance.


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ford poplar
post Mon, 25 Jun 2018 - 01:53
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But what question was posed to the Insurer by the Police and OP/
Who (job title) replied for Insurer?
You can ask the same question of 2 different people, and get opposite responses.
Prosecution has a duty to provide full disclosure of evidence, even if it benefits the Defence case.
It is still for Defence to put forward a plausible case to the Court

This post has been edited by ford poplar: Mon, 25 Jun 2018 - 01:54
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NewJudge
post Mon, 25 Jun 2018 - 10:13
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I don't think the conversation between the police and the insurer is relevant. The insurers would have said that business use was not covered but they were not in a position to determine whether the vehicle was being used for business or not. That is where the police must make (and prove) their allegation.
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TheDisapprovingB...
post Mon, 25 Jun 2018 - 10:37
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I think the others have already covered it, but save the receipt for the days shopping - you can use that to show that the shopping is in line with a purchase for a wedding rather than for resale. Additionally, if the drivers job doesn't carry any kind of purchasing responsibility, or he works for a company that wouldn't be expected to buy the kind of products purchased that day, that will also be useful. You mention a mail company, which is certainly worth mentioning if they don't even operate in the retail sector.

Equally, if the trade card is simply in somebody's name rather than a business, point this out, especially if you have previous receipts which back up a pattern of grocery shopping for a large family. If you've borrowed the card from a family member who does legitimately work in the trade, don't worry about simply saying so. Breaching the terms of the trade card, if indeed those terms prohibit personal use, is a matter between the card holder and the cash and carry - the courts have no interest in such things.
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The Rookie
post Mon, 25 Jun 2018 - 10:53
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QUOTE (NewJudge @ Mon, 25 Jun 2018 - 11:13) *
I don't think the conversation between the police and the insurer is relevant. The insurers would have said that business use was not covered but they were not in a position to determine whether the vehicle was being used for business or not. That is where the police must make (and prove) their allegation.

Agreed, and the same applies to the conversation between the driver and insurer, it hinges on whether the use was domestic or business or not.


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cp8759
post Mon, 25 Jun 2018 - 23:48
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QUOTE (NewJudge @ Mon, 25 Jun 2018 - 11:13) *
I don't think the conversation between the police and the insurer is relevant. The insurers would have said that business use was not covered but they were not in a position to determine whether the vehicle was being used for business or not. That is where the police must make (and prove) their allegation.

Absolutely correct, the conversation between the police and the insurance company is immaterial. Whether the insurance was valid at the time is a legal question which is ultimately for the courts to answer, an opinion given by a call centre operator wouldn't even be admissible evidence in court.


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disgrunt
post Tue, 26 Jun 2018 - 08:02
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The conversation between the police officer and the insurance co is not relevant for any prosecution but is relevant in relation to any complaint to the police or insurance company re the seized car (assuming insurance was in place)
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cp8759
post Tue, 26 Jun 2018 - 10:47
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QUOTE (disgrunt @ Tue, 26 Jun 2018 - 09:02) *
The conversation between the police officer and the insurance co is not relevant for any prosecution but is relevant in relation to any complaint to the police or insurance company re the seized car (assuming insurance was in place)

Not really. A complaint against the insurance company is unlikely to be successful if the police officer wrongly but not unreasonably told them the vehicle was being used for business purposes. A complaint against the police is hopeless unless a certificate of insurance was produced at the time (and as I've asked several times and not had any reply, I have to assume no certificate of insurance was produced).


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