The Court of Appeal has dismissed Florence Crowley’s appeal against the dismissal of his action over Zurich Life Assurance’s refusal to pay a serious illness insurance claim. It also dismissed an associated motion alleging deceit and misconduct by Zurich defendants.
The court held that the proceedings sought to relitigate a dispute already determined by the Financial Services Ombudsman. Mr Crowley had a statutory right to appeal the Ombudsman’s decision to the High Court but did not use it. The court found no basis to set aside the High Court judgment or permit the action to proceed.
Mr Crowley’s claim arose from angioplasty and stenting performed in April 2010. His policy required the procedure to correct at least 50 per cent narrowing in two or more coronary arteries. The Court of Appeal concluded that the treatment addressed narrowing in the left anterior descending artery only. A narrowed diagonal branch was itself a coronary artery, the court said, but it was left untreated. The policy condition was therefore not met.
The judgment identified two errors in the High Court’s understanding of the medical evidence. The trial judge had misread a cardiologist’s report as saying that the diagonal branch had been stented, and had overlooked evidence confirming that the branch was a coronary artery. The Court of Appeal said those errors did not change the result: the medical evidence showed that only one artery was treated, while the policy required treatment of two or more.
The court also noted that Zurich had given doctors and Mr Crowley different versions of the relevant policy wording in correspondence. It said the differences were not material to the policy’s central requirement, though the inaccurate wording gave an impression of carelessness and contributed to Mr Crowley’s suspicions.
The High Court had dismissed the action in 2015 on the basis of res judicata, after Mr Crowley’s complaint to the Ombudsman was rejected and he did not appeal. The Court of Appeal agreed that the Ombudsman’s determination was final within the statutory scheme, subject to the designated appeal route. It said the alleged fraud exception did not arise because Mr Crowley had withdrawn any fraud allegation in an amended statement of claim.
The appeal was dismissed. The associated motion also failed. The judgment additionally stated that joining the second and third defendants was unjustified because the complaint was against Zurich, the first defendant.