Crowley v Zurich Assurance Plc

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 15 December 2016
• Neutral Citation: [2016] IECA 381
• Date: 15 December 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 381 [2015 No. 365] [2012 No. 11281 P]

BETWEEN

FLORENCE CROWLEY

APPELLANT

AND

ZURICH LIFE ASSURANCE PLC & ORS

RESPONDENTS

[2016] IECA 381

Neutral Citation Number: [2016] IECA 381

[2015 No. 365]

[2012 No. 11281 P]

THE COURT OF APPEAL

Insurance – Res judicata – Special circumstances – Respondents seeking a non-suit and the striking out of the appellant’s action – Whether appellant’s claim was barred by reason of res judicata

Facts: The plaintiff/appellant, Mr Crowley, brought proceedings arising out of the refusal by the first defendant/respondent, Zurich Assurance plc, to allow the claim he made under a serious illness insurance policy. The second defendant is the Chief Executive Officer of the company and the third defendant is the Claims Assessor who dealt with Mr Crowley. The fourth defendant is the Financial Services Ombudsman but he was discharged from the action by order of the High Court made by Kearns P on 24th June 2013. These Zurich defendants brought a motion seeking a non-suit and the striking out of the action on various grounds including res judicata, issue estoppel or abuse of process. In his 4th March 2015 High Court judgment on the application, Hogan J held that, in circumstances where Mr Crowley had pursued his claim by way of application to the Financial Services Ombudsman and had been unsuccessful and had not exercised his statutory right of appeal from the decision to the High Court, his claim was barred by reason of res judicata. The court looked for circumstances or features of the case that would have made it inequitable to apply the rule but could find none. The judge said that there were objectively, no exceptional grounds which would justify reopening or in some way going behind the decision of the Financial Services Ombudsman. Subsequent to the judgment, Mr Crowley made unavailing attempts to get the High Court to revisit the decision because of alleged errors. Mr Crowley appealed to the Court of Appeal against the decision of Hogan J. He sought to bring before the Court, in the form of a notice of motion, a claim that the Zurich defendants have been guilty of deceit and misconduct in the handling of his policy claim and in the conduct of the proceedings.

Held by Ryan P that the law on the question that arose in the appeal was clear and that the High Court was correct in dismissing Mr Crowley’s claim. Ryan P held that Hogan J applied a test that was more favourable to the plaintiff in looking beyond the question of res judicata to whether there were reasons that would justify refusing to apply that legal rule. It is not clear to Ryan P that res judicata requires for its application to satisfy some unspecified extra requirements, subject to the wholly exceptional jurisdiction that courts always had at common law to set aside a judgment that was obtained by fraud. The legal principle of res judicata, in Ryan P’s view, disposes of a claim in circumstances where it is applicable and it is not a matter of discretion for the court whether it will or will not respect it. However that may be, Ryan P was in agreement with the judgment of the High Court that the rule of res judicata applies in this case because the Financial Service Ombudsman’s decision is final, subject to the statutory right to appeal to the High Court, and operates within a closed statutory scheme so that an applicant is not free to embark on separate court proceedings when he has got an adverse result. Ryan P also agreed that there were no special circumstances present that would justify departing from the rule, assuming that it is appropriate to approach the question in that way. Ryan P held that it follows that any other application by Mr Crowley to reopen the case fails with the appeal.

Ryan P held that the Court would, accordingly, dismiss the appeal.

Appeal dismissed.

JUDGMENT of the President delivered on 15th December 2016

Introduction

1 This appeal is brought by the plaintiff, Mr. Crowley, as a litigant in person against the dismissal of his action by the High Court (Hogan J.) for reasons set out in a judgment of 4th March 2015. He had brought proceedings arising out of the refusal by Zurich to allow the claim he made under a serious illness insurance policy. The second defendant is the Chief Executive Officer of the company and the third defendant is the Claims Assessor who dealt with Mr. Crowley. The fourth defendant is the Financial Services Ombudsman but he was discharged from the action by order of the High Court made by Kearns P. on 24th June 2013. These Zurich defendants brought a motion seeking a non-suit and the striking out of the action on various grounds including res judicata, issue estoppel or abuse of process. In his judgment on the application, Hogan J. held that, in circumstances where Mr. Crowley had pursued his claim by way of application to the Financial Services Ombudsman and had been unsuccessful and had not exercised his statutory right of appeal from the decision to the High Court, his claim was barred by reason of res judicata. The court looked for circumstances or features of the case that would have made it inequitable to apply the rule but could find none. The judge said that there were ‘objectively, no exceptional grounds which would justify me reopening or in some way going behind the decision of the Financial Services Ombudsman’. Subsequent to the judgment, Mr. Crowley made unavailing attempts to get the High Court to revisit the decision because of alleged errors.

2 The matter now before this Court is Mr. Crowley's appeal against the decision of Hogan J. However, that is not all. He seeks to bring before the court, in the form of a notice of motion, a claim that the Zurich defendants have been guilty of deceit and misconduct in the handling of his policy claim and in the conduct of the proceedings. It is doubtful whether he is entitled to bolt onto his appeal an extra procedural structure of that kind but in the result the court does not have to consider that separately. The outcome of any such process must be the same as the appeal that is before the court.

3 Mr. Crowley has put before the court a large quantity of documents as well as books containing many authorities. He has put in submissions and additional submissions in which he seeks to convince the court of the many depredations that he alleges against the Zurich defendants. It is unnecessary to specify all the various allegations that he makes. Mr. Crowley's indignant allegations extend beyond the parties to their legal advisers. His submissions cite what he alleges to be details of sustained illegality designed to deprive him of his lawful entitlements. Whatever he lacks in restraint and moderation, Mr. Crowley has no shortage of industry, even if it is not directed to the real issues that arise in the case. One can understand how disappointed and angry this litigant feels because of the injustice that he perceives to have been visited upon him by the company and its officials, but I do not see any basis in the case for the very serious charges Mr. Crowley levels at all and sundry, including solicitor and Counsel.

4 In my judgment, the law on the question that arises in the appeal is clear and the High Court was correct in dismissing Mr. Crowley's claim. Hogan J. applied a test that was more favourable to the plaintiff in looking beyond the question of res judicata to whether there were reasons that would justify refusing to apply that legal rule. It is not clear to me that res judicata requires for its application to satisfy some unspecified extra requirements, subject to the wholly exceptional jurisdiction that courts always had at common law to set aside a judgment that was obtained by fraud. The legal principle of res judicata, in my view, disposes of a claim in circumstances where it is applicable and it is not a matter of discretion for the court whether it will or will not respect it. However that may be, I am in agreement with the judgment of the High Court that the rule of res judicata applies in this case because the Financial Service Ombudsman's decision is final, subject to the statutory right to appeal to the High Court, and operates within a closed statutory scheme so that an applicant is not free to embark on separate court proceedings when he has got an adverse result. I also agree that there are no special circumstances present that would justify departing from the rule, assuming that it is appropriate to approach the question in that way. It follows also that any other application by Mr. Crowley to reopen the case fails with the appeal.

5 There are two complicating features of the case, the first of which has afflicted the dispute from the beginning. This is that the insurance company has been inaccurate in setting out the critical policy condition on which Mr. Crowley's claim depended. Zurich corresponded with doctors and with Mr. Crowley himself quoting versions or editions of the key illness policy provision that differed from the one in his policy. I agree with Hogan J. who said that the differences were not material because the central, essential requirement that had to be satisfied was the same in all the versions. It was, however, particularly unfortunate that the company gave the impression of carelessness or indifference in the important matter of the terms of the policy. This undoubtedly contributed, if it did not actually cause a great deal of the suspicion that Mr. Crowley harboured about Zurich's attitude to his claim.

6 The second problem arose because of an unfortunate misunderstanding of the medical evidence by the trial judge. It began with the best of intentions and a very practical suggestion. Because there was bitter controversy arising out of the use by the company of incorrect formulations of words for the critical policy provision in correspondence with doctors, the judge suggested that the company should write to the plaintiff's...