"This illustration assumes acceptance by [Prudential] at standard terms. It should be read in conjunction with the Key Features folder (GJ88). For further information, please read sales brochure (GJ00)."
“maximum stay is 10 days”
“travel details rec,d, 31 /07 never referred to u/w India [bombay& big cities] Far east [hk & Singapore] Kenya(mobassa &. nairobi] Tanzania [dar-es-salam] max stay in 1 place is 2 wks pjlgrimage to mecca every yr max stay is 10 days ?frequency of these trips rang brk & he confirmed that freq of these trips is 3 times per year to each country … -spoke to stuart at swiss who recommended thatnoting degreeof travel here that is nearly 6 mth per year .. therefore suggested 2 per mille rating….. …… suggest medically std, 2 per mille for travel, therefore decline wop&await”
“We are pleased to attach Plan documentation as outlined below: Copy Key Features Document Issue Letter Policy Schedule(s) and Policy Conditions Special Provisions”
“I. Flexible Critical Illness Plan - General Description A Flexible Critical Illness Pinn is a regular premium unit-linked life assurance contract. The Plan is designed primarily to provide cover against critical! illness but it can also provide life cover and long term care cover. The regular premiums you pay into the Plan are used to allocate investment fund units to the Plan. The value of the units varies according to the performance of the chosen investment funds. The encashment value of the Plan depends on the value of the units in the Plan and other factors such as how long the units have been in the Plan. Our charges, such as regular charges for the protection cover the Plan is providing, are met by removing units from the Plan. We issue a Flexible Critical Illness Plan as a group of 10 whole life policies, all linked to the same investment funds, with the premium payments, units and protection cover divided evenly across all the policies so that all the policies are identical. If we are specifically asked to issue the Plan as just one policy we will do so. 2. The Plan Conditions This document ("the Plan Conditions booklet') sets out the rules which govern a Flexible Critical Illness Plan and the investment funds the Plan is linked to. 3. Policy Documents When a Plan commences we issue the following documents to confirm the contract (a) the "Plan Conditions booklet": (b) a "policy schedule" for each policy in the Plan: (c) any non-standard provisions, arrangements, or supplementary information will he set out in the document(s) identified in the “Related Policy Documents" section in the policy schedules. These policy documents together form the Plan. If there are any significant changes to the Plan after it has started we will normally issue an "Endorsement” or "Special Provisions" detailing the changes… 4. Definitions 4.1… 4.2 Plan Policies & Related Documents -"Plan policies" means the policies comprising your Flexible Critical Illness Plan . -“related documents" means any document shown in the section headed "Related Policy Documents" in the Policy Schedules and any endorsement or Special Provisions or other document we issue in respect of the Plan at the outset or later.”
“5.1 Review Dates We review the Plan on the following Review Dates: (a) The 10th policy anniversary and every 5th policy anniversary thereafter; (b) Any other date when we consider a review is appropriate…. We review the Plan on the following Review Dates: 5.2 Purpose The purpose of each review is to assess the likelihood that the value of the units will be insufficient to sustain the then current protection cover through to the next Standard Review Date on whatever assumptions the Actuary considers appropriate. The review will take into account the charges we will be taking from the Plan, in particular our charges for the cost of the protection cover the Plan is providing, the current value of the regular premium units in the Plan and projected growth in the value of those units.”
“8.3 Foreign Residence or Travel (1) If the life assured is outside any of the countries shown in (3) below for 3 or more months in any period of 12 consecutive months, we may vary the terms of the waiver of premium cover as we consider appropriate and we reserve the right to cancel the waiver of premium cover. (2) The policyholder must notify us of any change of residency under (1) above during the first 3 months any change, and failure to notify us at the expiry of the 3 month period may result in the cancellation of the waiver of premium cover or a claim for waiver of premium benefit being refused. (3) For the purposes of (1) above, the countries are Australia, Austria, Belgium, Canada, Channel Islands, Denmark, Finland, France, Germany, Great Britain, Greece, Netherlands, New Zealand, Northern Ireland, Norway, Portugal, Republic of Ireland, Spain, Sweden, Switzerland and the United States of America.” (1) If the life assured is outside any of the countries shown in (3) below for 3 or more months in any period of 12 consecutive months, we may vary the terms of the waiver of premium cover as we consider appropriate and we reserve the right to cancel the waiver of premium cover. (2) The policyholder must notify us of any change of residency under (1) above during the first 3 months any change, and failure to notify us at the expiry of the 3 month period may result in the cancellation of the waiver of premium cover or a claim for waiver of premium benefit being refused. (3) For the purposes of (1) above, the countries are Australia, Austria, Belgium, Canada, Channel Islands, Denmark, Finland, France, Germany, Great Britain, Greece, Netherlands, New Zealand, Northern Ireland, Norway, Portugal, Republic of Ireland, Spain, Sweden, Switzerland and the United States of America.”
“The Plan Policies The following Special Provision(s) shall apply to all the policies in the above Plan (i.e. every policy with a policy number consisting of the above Plan Number plus two or more further digits). Our rates for calculating our charges for the protection cover shown below will be increased on the basis shown below: The life assured the increase applies to: The cover the increase applies to: The increase to our standard rates for the cover Mohammed Merali Dewji Critical Illness Cover Plus£2 per mille (this increase applies for the lifetime of the policy) Life Cover Plus£2 per mille (this increase applies for the lifetime of the policy) The company reserves the right to review the rating at any time in the future if the benefit structure changes.”
“I note that the clause in the contract documentation between two parties of this dispute confirms that the policy is governed by and construed in accordance with the laws of England. Therefore, in these circumstances the Financial Services Ombudsman would not be the appropriate forum to adjudicate the complaint and this office would decline jurisdiction on that grounds. However, should Irish law govern the contract, the circumstances would be otherwise. I have written today to the Complainant in that regard seeking the required written confirmation that it is willing to elect Irish law as the governing law of the contract. I would be grateful if you could also let me have confirmation in writing from you that: - the applicable laws pursuit which the complaint will be examined and adjudicated upon, will be the laws of Ireland. …. Upon receipt of the said confirmation in writing from you and in addition, from the Complainant, the investigation of this matter can proceed.”
“ As explained to your financial adviser in our letter to him dated8 July 2012 it is not appropriate to make direct comparisons between different Plans where the lives assured have different ages and medical conditions_ In particular, there are different charges deducted. Full breakdowns of the charges made in respect of your Plan and your brother's Plans have been sent to your financial adviser. They show, quite clearly, the difference in the charges deducted each year since inception. For your Plan the charges made to sustain the life cover and critical illness cover are significantly greater than the charges deducted from your brother's Plans because your Plan was rated at the time of application. As you will recall, you signed a Special Terms letter on16 August 2000 following the underwriting of your Plan. A copy of the signed Special Terms letter is attached for your information.”
“ 6…..Therefore, the only difference is as a result of the rating applied to Mr Dewji's Plan. As he is paying a higher level of charges compared to his two brothers, in tum, their Plans have at all times had greater amounts Invested. These higher sums invested have over time produced a better return than Mr Dewji's Plan. 7. As stated above due to a medical condition Mr Dewji's application for a Plan could not be accepted at standard rates. It was medically rated. A counter-offer by PIA was accepted by Mr Dewji and, as a result, the Plan came into force on the terms set out in the Special Terms Letter signed by Mr Dewji on16 August 2000 .”
“With regard to the rating applied at outset I would refer you to my letter dated15 Aug 2012 when I attempted to explain why Mr Dewji’s Plan charges are different to those paid by his two brothers. At the time of application [Prudential’s] underwriters concluded that Mr Dewji could not be accepted at standard rates. A counter-offer in the form of a special terms letter was sent to Mr Dewji which he accepted when he signed the special terms letter on the16 August 2000 . The initial annual premium was£4883.40 which sustained an initial life cover sum assured of£1 million and an initial critical illness cover sum assured of£250,000 . This rating has applied since the plan came into force.”
“[having referred tosection 57BX of the Central Bank and Financial Services Authority of Ireland Act 2004 , under which a consumer cannot make a complaint if the conduct complained of occurred more than 6 years before the complaint is made] This complaint was made on23 March 2012 and in light of the above I can only comment on matters that may be in dispute which occurred after23 March 2006 . The Complainant’s Case the Complainant says that he received a letter from the company in September 2010 advising him that (following a policy review) that the premium on the policy needed to be increased from£13,856.22 to£22,423.08 . The Complainant says that the premium increase was excessive and also says that the policy value was low (at about£9,000 ). The Complainant says that this policy was affected around the same time to other similar policies which were affected by his brothers with the Company. He says that following policy reviews on those policies that the increase in premium were minimal and that the policy values are£67,000 and£53,000 . The Complainant says that his policy was not accepted on special terms (was rated) as the Company allege. He says that he did not agree to a rating when the policy was effected and says that he was not advised by the Company that the policy was accepted on special terms. The Complainant is unhappy with the increase in premium on his policy (following the policy review). He also complains of poor service and slow replies to correspondence. The Complainant asks that the Company charge a premium on his policy similar to his brothers’ policies and that the Company allow a similar value on his policy to his brother’s policies.”
“Consequently I find that the policy was accepted on special terms. I accept that this letter showed that the policy was not accepted on standard terms and that the policy was subject to a “rating/a loading” no evidence has been presented to show that the charges applied to the policy by [Prudential] were incorrect or contrary to the policy Terms and Conditions.”
“I note that the Complainant is unhappy with the current policy fund value (and suggest that “an element of theft” may be involved). I can understand why the Complainant may feel that the policy value is low relative to his brothers’ policies (and that the premium is relatively high). The policy was accepted on special terms in this and the increasing age of the Complainant and the impact of these factors on the cost of cover together with the impact of the increased cost of critical illness cover and the poor fund performance have all negatively impacted the policy fund value. No evidence has been provided by the Complainant (other than suggested comparisons with the values of the Complainant’s brothers’ policies) to show that [Prudential] have not valued the policy correctly and in accordance with the contract Terms and Conditions. I find that a comparison of the value of this policy with valuations on the Complainant’s brothers’ policies, and comparison with the respective premiums, is not necessarily an appropriate comparison because of the differences in the contracts (agents, inception dates, charges, acceptance terms, etc.) and as has been outlined in correspondence to the Complainant by [Prudential], and as detailed above. In the absence of evidence to show that the policy has not been correctly valued (or that the administration of the policy by [Prudential] insofar as it effects the policy value was inappropriate), or that the charges that have been applied or incorrect, I cannot uphold the complaint. I note that there have been some delays in providing responses to correspondence but note the requests for detailed information and the volume of supporting documentation involved. I also note that [Prudential] have made a number of errors in corresponding with the Complainant and these may have caused some inconvenience to the Complainant. I find that {Prudential] should pay compensation of£150 to the Complainant in this respect.”
“The above finding is legally binding on the parties, subject only to an appeal to the High Court within 21 calendar days”
“7) C M has misinterpreted the letter of16 August 2000 which was signed back then because MMD travelled extensively as a result of his work. That was required from [Prudential] because MMD was travelling to locations which were outside of those detailed in Section 8.3. To never use this some 20 years later as an explanation for a “rating applied to the policy from inception” is frankly absurd and is heavily contested by us 8) If there was a “rating” applied, why would you send this information to the GP and not the Client directly? You would have had to get Client consent on this “rating” for a new policy and there is no such evidence to support your current assertion. Please provide documentary evidence of a your alleged explanation of “rating” which is currently rejected. Further, there is no mention of “rating” in any policy documents, conditions, reviews or letters from PIA. We suggest this is a fabricated story by your department.”
“1) The document signed on16th August 2000 which was received by SAE by fax on the same date was MMD's decision to relinquish a benefit called "premium waiver". This was simply because he had ticked "YES" that he travelled outside of the UK for business apart from holidays on the application form. You have provided the copy application form so you are aware of this.”
“ I had said on our call that I did not know the reason for the loading on this plan. We have since been in contact with underwriting about the loading and the loading applied was for this client’s travel to countries that were deemed of higher risk at the time the policy was taken out. Medically, this client was deemed to be of average risk or ‘Standard Rates’ as the case may be. If any loading applies, including for Foreign Travel, Waiver of Premium is declined. This resulted in the ‘Special Terms’ being required which detailed the increased premium for this loading (£4,883.40 as opposed to£4,552.86 which was originally quoted), along with the ‘Special Provisions’ document which outlined the loading (2 per mil for the duration of the policy). If there were a medical reason for the loading then we would not be able to share this information and the customer would need to contact their GP for the reason. However, as it turns out this is not the case here and we can therefore inform you that the reason was due to Foreign Travel.”
“In particular, we note that PIA mistakenly indicated that the loading on the policy had been added on a medical basis when, in fact, the loading was applied on the basis of travel. This error was identified by a review of the contemporaneous underwriting notes, and was subsequently corrected.”
“AND UPON the court taking the view that the Claimant may have a real chance of success on at least one or more of his pleaded claims and cannot deprive him of his right to a fair trial; AND UPON the court noting a number of triable issues in this case making it not suitable for summary judgement and/or strike out;”
“The transcript of the judgment is very short (one and a half pages) and it is very difficult to discern from that the reasons for the judge’s decision on the Appellant’s strike-out application. On the basis of such reasons as are given, I consider that the appeal has a real prospect of success on the grounds set out by the Appellant in its grounds of appeal and skeleton argument.”
“The Judge misdirected himself as to the legal test for striking out and/or summary judgment, in that: (i) he failed to consider whether the Claimant had a real prospect of success, and instead found that the Claimant “may well have” a real prospect of success; and (ii) he failed to consider whether the Claimant had a real prospect of succeeding on the claim, and instead found that that the Claimant may well have a real prospect of succeeding on one or more factual “points”.”
“The Judge was wrong to assume that determining the Application would take as long as a trial of the claim, and to dismiss the Application on that basis.”
“The Judge was wrong to reject the submission that there was no real prospect of success because the claim was barred by limitation, in that the primary limitation period had expired and: (i) the Claimant had no real prospect of succeeding on his pleaded case undersection 32(1)(b) of the Limitation Act 1980 (deliberate concealment); and (ii) the Claimant had no real prospect of succeeding on his pleaded case undersection 32(1)(c) of the Limitation Act 1980 (mistake).”
“The Judge failed to determine whether the claim was an abuse of process (which it was), and thus failed to consider whether to strike it out on that basis.”
“(1) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All E.R. 91. The criterion is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3)[2003] 2 AC 1 [158] per Lord Hobhouse. (2) A “realistic” claim is one that carries some degree of conviction, i.e. a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; (3) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman. This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court, and in some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; Optaglio v Tethal[2015] EWCA Civ 1002 [31] per FFloyd LJ. (4) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5)[2001] EWCA Civ 550 at [19]; Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 . (5) Nevertheless, to satisfy the requirement that further evidence “can reasonably be expected” to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may “turn up”
“… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…” (7) The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should “draw a line” and bring an end to the action: King -v- Stiefel[2021] EWHC 1045 (Comm) [21] per Cockerill J). “… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…”
"The question whether a point is plain and obvious does not depend upon the length of time it takes to argue. Rather the question is whether, when the point has been argued, it has become plain and obvious that there can be but one result."
“My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself”
“i. Do the exceptions to the limitation period such as fraud, mistake, and/or concealment apply? and/or concealment apply? ii. When did the defendant know the essential relevant facts? Was it 139. 2000 or was it 2021, or some other date? iii. What did the defendant take into account in acting as it did in issuing the policy and the special conditions or not? iv. What was the claimant told about it?”
“[96] What section 32(1)(b) requires is that the defendant has “deliberately concealed” “a fact relevant to the plaintiff’s right of action”
“…where in the case of any action for which a period of limitation is prescribed by this Act… any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant …”
“[98] In relation to the meaning of “concealed”, it seems that in Williams the court found a duty of disclosure to be inherent in the meaning of the word “concealment”
“[108] For the reasons developed below in the discussion of the word “deliberate” in section 32(2), I would in addition reject the contention that “deliberately”, in this context, can mean “recklessly”
“[109]… What is required is (1) a fact relevant to the claimant’s right of action, (2) the concealment of that fact from her by the defendant, either by a positive act of concealment or by a withholding of the relevant information, and (3) an intention on the part of the defendant to conceal the fact or facts in question.”
“What, then, is the meaning of provision (c)? The right of action is for relief from the consequences of a mistake. It seems to me that this wording is carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences and the plaintiff seeks to be relieved from those consequences. Familiar examples are, first, money paid in consequence of a mistake: in such a case the mistake is made, in consequence of the mistake the money is paid, and the action is to recover that money back. Secondly, there may be a contract entered into in consequence of a mistake, and the action is to obtain the rescission or, in some cases, the rectification of such a contract. Thirdly, there may be an account settled in consequence of mistakes; if the mistakes are sufficiently serious there can be a reopening of the account.”
“[178] The argument for the Test Claimants on these appeals is that in section 32(1)(c) actions “for relief from the consequences of a mistake” are not confined to actions where the mistake is part of the legal foundation of the claim. They extend to at least some actions where it was merely part of the history. Mr Rabinowitz QC (who argued this point for the Test Claimants) accepted some limitations of the range of relevant mistakes. He said that there had to be a sufficient causal nexus between the mistake and the claim, in the sense that the facts constituting the cause of action have come to pass because of the mistake…. [183]…. The point has been directly considered only once, by Pearson J in Phillips-Higgins v Harper[1954] 1 QB 411 . That was an action by an assistant solicitor to enforce a term of her contract of employment which entitled her to a share of the profits of the firm for which she worked. She claimed to have been underpaid under the profits agreement for the whole 13 years of her employment. In response to a plea of limitation in respect of the early years, she contended that she had been mistaken in failing to realise that she was being underpaid, and relied onsection 26(c) of the Limitation Act 1939 . Pearson J rejected her argument. In his view the wording of the provision was “carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences, and the plaintiff seeks to be relieved from those consequences”
“Central Principle A final adjudication of a legal dispute is conclusive as between the parties to the litigation and their privies as to the matters necessarily determined, and the conclusions on these matters cannot be challenged in subsequent litigation between them (whether in separate proceedings or at a later stage of the same proceedings). This principle applies absolutely to a conclusion that a cause of action does not exist, but it will not apply to other issues necessarily determined if there are special circumstances.”