The High Court dismissed Florence Crowley’s proceedings against Zurich Life Assurance plc and two Zurich employees, holding that an unappealed decision by the Financial Services Ombudsman barred her claim from being relitigated. The court said it could not reopen the contractual dispute because there were no special circumstances to displace the effect of the ombudsman’s decision.
The dispute concerned a serious illness claim under a life and serious illness policy taken out in 2002. Zurich declined the claim in 2010 after Crowley underwent angioplasty and stenting to the left anterior descending coronary artery. The policy required treatment addressing significant narrowing in two or more coronary arteries. Zurich maintained that treatment had been performed on only one artery.
Crowley appealed internally to Zurich and then complained to the Financial Services Ombudsman. The ombudsman ruled in January 2012 that Zurich’s refusal was not unreasonable. Crowley did not appeal that determination to the High Court under the statutory appeal procedure. Instead, he began these proceedings in November 2012, alleging breach of contract and making other allegations against the defendants.
The ombudsman had already been removed as a defendant in an earlier ruling by President Kearns. That ruling concerned the statutory restrictions on actions against the ombudsman; Mr Justice Gerard Hogan said it did not decide Zurich’s separate application. Zurich argued that the claim against it should be struck out because the ombudsman had already adjudicated the same underlying dispute.
Hogan J considered three arguments advanced as possible reasons to reopen the matter. He rejected Crowley’s explanation that he had not understood an appeal was available, noting that the relevant documentation expressly identified the right of appeal. He also considered that Zurich had initially sent Crowley’s cardiologist a slightly different version of the policy. At the court’s request, the cardiologist later reported that, under the policy wording that applied, the procedure involved lesions in the same artery and did not meet the two-artery requirement.
Crowley further argued that a branch of the treated artery should count as a separate artery. The court had adjourned to allow him to obtain supporting medical evidence, but he did not provide it. Hogan J found that none of these matters established special circumstances that would make it unfair to hold the parties to the ombudsman’s determination.
The court therefore dismissed the proceedings as bound to fail because of res judicata. Hogan J expressed sympathy for Crowley’s circumstances and asked Zurich to consider a sympathetic reconsideration of the underlying merits if feasible. That request did not alter the dismissal or decide that Zurich should pay the claim.