Crowley v Zurich Life Assurance Plc

JudgeMr. Justice Gerard Hogan
Judgment Date04 March 2015
Neutral Citation[2015] IEHC 197
Docket Number2012, No. 11281P
CourtHigh Court
Date04 March 2015

[2015] IEHC 197


Hogan J.

2012, No. 11281P


Insurance – Central Bank Act 1942 – Financial Services Ombudsman – Res judicata.

Facts: Following the adjudication of the case by the Financial Services Ombudsman to redress the grievances, the plaintiff now directly approached the High Court with a claim of breach of contract against the first named defendant without availing the right of appeal against the decision of the Financial Service Ombudsman.

Mr. Justice Gerard Hogan held that the claim of the plaintiff would be barred by the doctrine of res judicata. The Court found that the appropriate remedy under the law for the plaintiff would be to file an appeal against the order of the Financial Services Ombudsman failing which the order attained finality. The Court observed that there existed no exceptional ground to that doctrine. Nonetheless, the Court requested the defendant to give a sympathetic consideration to the case if it considered it appropriate to do so.

JUDGMENT of Mr. Justice Gerard Hogan delivered on 4th of March 2015

In a case where the Financial Service Ombudsman has adjudicated on a complaint and has ruled that the service provider acted in accordance with the terms of the underlying contract or otherwise did not act unfairly, can the complainant then subsequently sue the service provider for breach of contract directly in the High Court where no appeal has been taken against the decision of the Financial Services Ombudsman? That, in essence, is the principal issue which arises in this application which has been brought by the financial service provider to have the proceedings struck out on the grounds that the matter is res judicata.


The issue arises in the following way: At some time in 2002 the plaintiff, Mr. Crowley, effected a Life and Serious Illness policy with the first defendant's predecessor, Eagle Star. This policy was subsequently taken over by Zurich Life Assurance plc (‘Zurich’), but nothing turns on this. There is no dispute but that the plaintiff discharged all premium payments under the policy thereafter.


The policy became due on the happening of certain critical events, which were defined in the following terms by Appendix B. One of these events involved coronary catheter treatment (including angioplasty). This was defined as:

‘The undergoing of any interventional technique on the advice of a cardiologist that has been appointed as a consultant physician that involves the use of transluminal coronary catheters. The procedure must be to correct at least 50% diameter narrowing of two or more coronary arteries. Angiographic evidence to support the necessity for the above operations is required.’


By early 2010 it was clear the plaintiff needed surgical treatment for a serious heart condition. In April 2010 he underwent a coronary angiography. As a result of this procedure it became clear that surgery was necessary and he underwent an angioplasty stenting of the lower anterior descending artery (‘the LAD artery’). It appears that three sequential lesions were stented. Although narrowing was found in a diagonal branch of the artery which was subtended by the stent this was left alone and not stented.


On 19th May 2010 Mr. Crowley completed a Serious Illness Claim Form in the wake of this surgery and this was submitted to Zurich. Medical details were supplied by Dr. John O'Connor, Mr. Crowley's general practitioner, and by his consultant cardiologist, Dr. David Mulcahy. The application was considered by Zurich with the assistance of their Chief Medical Officer. At all events, Zurich wrote to the plaintiff on 8th July 2010 declining the claim. That letter was in the following terms:

‘In order to be able to claim under this policy for coronary catheter treatment (including angioplasty) your surgery must satisfy the following definition:

The undergoing of any interventional technique, on the advice of a cardiologist that has been appointed as Consultant Physician, that involves the use of transluminal coronary catheters. The procedure must be to correct at least 50% diameter narrowing of two or more coronary arteries. Angiographic evidence to support the necessity for the above operations is required.

We received a medical report from your general practitioner which noted that you underwent stenting to the left anterior descending artery. In addition to this report the patient discharge letter you submitted with your claim also confirmed that you underwent this procedure and that the only stenting occurred in the left anterior descending artery. Your general practitioner also provided a summary of the specialist reports you have received in relation to your surgery which confirm the same. As you will note from the above, the procedure must be to correct the narrowing of two or more coronary arteries. The procedure you underwent was to correct narrowing to one artery and therefore in the circumstances we have no option but to decline this claim for serious illness benefit’.


The plaintiff appealed this decision under Zurich's own internal appeal procedures. There was then further correspondence between Zurich and Mr. Mulcahy.


That appeal was, however, unsuccessful. In a letter dated 9th November 2010 Zurich stated:

‘Dr. Mulcahy replied to our Chief Medical Officer outlining the specific operation that you underwent and the locations treated. The information received from your specialist once again confirms that you had stenting only to the left anterior descending artery….. As the medical information received from your doctor confirms that you only received treatment to one coronary artery and therefore do not satisfy the criteria required for a valid serious illness claim. Therefore in this regard we have no option but to continue to decline this claim.’


At that point Mr. Crowley then brought a complaint to the Financial Services Ombudsman. In a ruling delivered by the Financial Services Ombudsman on 27th January 2012 that complaint was not upheld. It is clear from the ruling of the Financial Services Ombudsman that a careful consideration was given to the terms of the policy and the medical evidence. The Financial Services Ombudsman concluded Zurich's decision to refuse the claim was not unreasonable as:

‘Only one of the complainant's arteries showed narrowing, the LAD. The policy definition called for two or more arteries to be stented. This did not happen in this case. There is no objective evidence to show that the complainant's treating doctors did not insert a stent on one of the complainants other arteries (as opposed to a branch of the LAD) because there was a preferable course of treatment available or because such course of action may have placed his life in danger.’


While Mr. Crowley was understandably very disappointed with the outcome of this complaint, it is important to stress that no appeal was taken to this Court in the manner provided for by s.57CM of the Central Bank Act 1942 (as inserted by the Central Bank and Financial Services Authority Ireland Act 2004) (‘the 1942 Act’). The plaintiff instead commenced the present originating proceedings in November 2012 claiming damages for, inter alia, breach of contract. Far reaching allegations are made in those proceedings against all the various defendants. I should also say that the plaintiff is a litigant in person who has represented himself at all stages of the proceedings.


I should pause here to say that the second defendant, Mr. Brennan, is the Chief Executive Officer of Zurich Life and the third defendant, Ms. McNamara, is a Claims Assessor employed by Zurich. In essence the claim against Zurich (and, by extension, its employees) is that they have been guilty of breach of contract in failing to honour the terms of the serious illness policy. There are also allegations of fraud and deception on the part of Zurich.


The fourth defendant, the Financial Services Ombudsman, then brought an application to have the claim against him struck out on the ground that no reasonable cause of action was disclosed. In his ruling on that day, Kearns P. struck out the proceedings as against the Ombudsman. In the course of that ruling Kearns P. said:

‘But the decision having been given and Mr. Crowley in fairness accepts that he is aware of the terms of the Act, he must have known he had a right of appeal to the High Court, but he did not exercise it. And it is still not clear to me why he did not exercise it. But today he says it is because he thought the internal review exhausted that option. But Mr. McDermott [counsel for the Ombudsman] points out that the letter sent at the time of the ultimate determination made clear to any person who brings a complaint, because it happens in every case, that they do have a right of appeal to the High Court. But for some reason, which as I say, I find very difficult to understand, Mr. Crowley had instead opted to bring a highly, if I may put it, risky case from his point of view because he has to undertake the burden of discharging proof of misfeasance in public office is an extremely high onus.’


Kearns P. noted that there was no evidence in which a claim of misfeasance could be made out. The judge then observed:

‘Where a citizen feels a public body has not followed correct procedures the appropriate remedy is judicial review. That is not being sought. Where a citizen feels that the Ombudsman has got it wrong and also did not apply proper procedures as a result the remedy is an appeal. Neither of these have been followed in this case. So I am quite satisfied that the ground of objection to the maintenance of...

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1 cases
  • Murphy v Canada Life Assurance Ireland Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 4 May 2016
    ...Scheme [2007] IEHC 27, [2007] 2 I.L.R.M. 196, O'Hara v. ACC Bank plc [2011] IEHC 367 and Crowley v. Zurich Life Assurance [2015] IEHC 197. All three decisions are unanimously of the view that a disappointed litigant cannot re-litigate a matter which has been the subject of an adverse decis......

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