Utmost Paneurope DAC v Financial Services and Pensions Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 30 March 2022
• Neutral Citation: [2022] IECA 77
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2021/47

In the Matter of an Appeal Under Section 64(6) of the Financial Services and Pensions Ombudsman Act 2017

Between/

Utmost Paneurope DAC

Appellant/Respondent

and

Financial Services and Pensions Ombudsman

Respondent/Appellant

and

W

Notice Party

[2022] IECA 77

Costello J.

Collins J.

Binchy J.

Record No.: 2021/47

THE COURT OF APPEAL

Group income protection – Voluntary scheme – Eligibility – Appellant appealing on a point of law – Whether the High Court was entitled to draw different inferences from documentation than those of the appellant

Facts: The notice party was a civil servant who at all material times in the course of her employment was a member of a group income protection voluntary scheme (the Scheme), subject to specific exceptions as to eligibility. On 8th June 2016, the notice party submitted a claim (the Claim) for payment of benefit under the Scheme. In the section of the claim form dealing with the medical condition of the notice party, she stated that she suffered from “Inflammatory arthritis – still under investigation for full diagnosis and Fibromyalgia”. On 29th July 2016, the respondent, Utmost Paneurope DAC (Utmost), declined payment of benefit under the Scheme, citing the specific terms of the exclusion relating to fibromyalgia. The notice party exercised her entitlement (as provided for in the Scheme) to appeal that decision. Utmost informed the notice party on 17th February 2017 that her appeal had been unsuccessful. The notice party then lodged a complaint with the appellant, the Financial Services and Pensions Ombudsman (the FSPO), in or about April 2017 (the Complaint). The FSPO issued a preliminary decision on 14th May 2019, indicating its intention to uphold the Complaint. On 15th July 2019, the FSPO issued his final decision in the matter (the Decision), whereby he, inter alia, affirmed the preliminary decision. Utmost appealed the Decision to the High Court, pursuant to s. 64 of the Financial Services and Pensions Ombudsman Act 2017. In a decision handed down on 10th November 2020, the High Court (Simons J) allowed the appeal and set aside the Decision. The FSPO indicated an intention to appeal the decision of the High Court to the Court of Appeal, on a point of law as provided for in s. 64(6) of the 2017 Act. By further decision dated 10th February 2021, Simons J granted leave to the FSPO to appeal to the Court of Appeal for a review of the principal judgment of 10th November 2020, on three questions of law: “(i) Is the Ombudsman, when determining the reasonableness of the conduct of a financial services provider, required to have regard to any applicable code of conduct published by the Central Bank? (ii) Does the Ombudsman have jurisdiction, in the absence of any finding on his part that there has been a breach of contract, to direct a financial services provider to admit a claim under a policy of insurance and to pay the benefit to the insured? (iii) Is the High Court, in the exercise of its appellate jurisdiction in a statutory appeal under section 64 of the Financial Services and Pensions Ombudsman Act 2017, entitled to draw different inferences from documentation (in this case, correspondence) than those of the Ombudsman? Put otherwise, to what extent do the principles in Fitzgibbon v. Law Society [2014] IESC 48; [2015] 1 I.R. 516 (at paragraphs 127 and 128 of the reported judgment) apply to a statutory appeal under section 64?”

Held by Binchy J that the outcome of the Complaint was determined by the interpretation given to specific e-mails referred to by the FSPO in the Decision, one being an internal e-mail from Mr Hulsman to Dr Gleeson of 27th July 2016, and the other being the e-mail of 19th January 2017 from Ms Devine to Dr Howard. Binchy J held that whether or not the interpretation given to those e-mails by the FSPO constituted a serious and significant error such as to justify the intervention of the High Court, and the setting aside of the Decision depended upon the answer to the third of the questions certified by the High Court. Binchy J held that since the appeal to the Court of Appeal was on a point of law only, the conclusions of the trial judge as regards the inferences drawn by the FSPO from the documentation were not reviewable by the Court. If they were so reviewable, Binchy J would have wholly endorsed the conclusions of the trial judge.

Binchy J held that it followed from his conclusion on question three that the order of the trial judge setting aside the Decision should be affirmed.

Appeal allowed.

UNAPPROVED

JUDGMENT of Mr. Justice Binchy delivered on the 30 ^th day of March 2022

Background

1 . The notice party is a civil servant who at all material times in the course of her employment was a member of a group income protection voluntary scheme (the “Scheme”), subject to specific exceptions as to eligibility, as regards the notice party, expressed in the following terms:

“There shall be no entitlement to benefit if the circumstances giving rise to a claim are directly or indirectly attributable to any affection of the spine and sacro-iliac joints or their related supporting muscular or ligamentous structures”

and,

“No benefit shall be payable if the circumstances giving rise to a claim for benefit are directly or indirectly attributable to chronic fatigue and/or any mental or functional nervous disorder”.

2 . Although not specifically referred to, it is common case that these exceptions have the effect of excluding the condition known as fibromyalgia. The Scheme was originally underwritten by Friends First, but was later taken over by the appellant/respondent (hereafter referred to as “Utmost”, formerly known as Generali PanEurope DAC).

3 . On 8 ^th June 2016, the notice party submitted a claim (the “Claim”) for payment of benefit under the Scheme. In the section of the claim form dealing with the medical condition of the notice party, she states that she suffers from “Inflammatory arthritis – still under investigation for full diagnosis and Fibromyalgia”. In support of the Claim, the notice party submitted three medical reports to Utmost, one from her general practitioner, a Dr. Rawat, one from a cardiologist, a Dr. Gumbrielle, and one from a consultant rheumatologist, a Dr. Lee.

4 . On 29 ^th July 2016, Utmost declined payment of benefit under the Scheme, citing the specific terms of the exclusion relating to fibromyalgia. The notice party exercised her entitlement (as provided for in the Scheme) to appeal that decision. Utmost requested the notice party to attend for an independent medical examination by a Dr. Donough Howard, consultant rheumatologist. Having received a report from Dr. Howard and, importantly for the purposes of the proceedings, a subsequent clarification from Dr. Howard, Utmost informed the notice party on 17 ^th February 2017 that her appeal had been unsuccessful.

5 . The notice party then lodged a complaint with the respondent/appellant (the “FSPO”) in or about April 2017 (the “Complaint”). The Complaint is described as follows by the FSPO on p. 4 of his decision handed down on 15 ^th July 2019 (the “Decision”):

“The complaint for adjudication is that the Provider wrongly declined the Complainant's initial claim; wrongfully declined the Complainant's claim on appeal; did not deal with the complainant's appeal correctly; and that the policy which the provider provided to the Complainant was not suitable for the Complainant”.

It is apparent therefore that there are four elements to the Complaint, which gave rise to a specific submission on behalf of Utmost, to which I will return in due course.

6 . On the first page of the Decision, the FSPO states that it was the notice party's case that Utmost had not dealt with the Claim and her appeal against the first refusal of cover in an objective manner, and that it focused its efforts on bringing her claim within the exclusion of cover relating to fibromyalgia. Having investigated the Complaint, the FSPO issued a preliminary decision on 14 ^th May 2019, indicating its intention to uphold the Complaint, as well as an intention to direct Utmost to admit the Claim from the date of expiration of the deferred period as defined in the Scheme policy document. By letter of 5 ^th June 2019, Utmost made detailed submissions to the FSPO as regards the preliminary decision. However, on 15 ^th July 2019, the FSPO issued his final decision in the matter, i.e. the “Decision”, whereby he, inter alia, affirmed the preliminary decision.

7 . Utmost appealed the Decision to the High Court, pursuant to s. 64 of the Financial Services and Pensions Ombudsman Act 2017 (the “Act of 2017”). In a decision handed down on 10 ^th November 2020, the High Court (Simons J.) allowed the appeal and set aside the Decision, concluding that the FSPO had made serious and significant errors in arriving at the Decision. The FSPO indicated an intention to appeal the decision of the High Court to this Court, on a point of law as provided for in s. 64(6) of the Act of 2017. There then followed a hearing on this issue, and by further decision dated 10 ^th February 2021, Simons J. granted leave to the FSPO to appeal to this Court for a review of the principal judgment of 10 ^th November 2020, on three questions of law, which are set out and considered from para. 49 onwards.

Background — the Claim and the medical evidence

8 . In the Claim form submitted to Utmost by the notice party, she referred to the following symptoms as preventing her from working: stiffness, pain (chronic), pins and needles, numbness, difficulty walking, dizziness and blurred vision, extreme fatigue, short term memory loss — brain fog. As mentioned above, she described her condition as being “Inflammatory arthritis – still under investigation for full diagnosis and fibromyalgia”. The notice party submitted with the Claim form a report from her general practitioner, a Dr. Rawat in a...