{"id":135,"date":"2019-03-07T00:00:00","date_gmt":"2019-03-07T00:00:00","guid":{"rendered":"https:\/\/fenchurchlaw.hostingsystems.co.uk\/sg\/blog\/2019\/03\/07\/how-to-annoy-judges\/"},"modified":"2024-08-21T16:27:13","modified_gmt":"2024-08-21T15:27:13","slug":"how-to-annoy-judges","status":"publish","type":"post","link":"https:\/\/fenchurchlaw.com\/en-sg\/how-to-annoy-judges\/","title":{"rendered":"How to Annoy Judges"},"content":{"rendered":"

There wasn\u2019t much law in the Court of Appeal\u2019s recent decision in\u00a0Friends Life v Miley\u00a0<\/em>[2019] EWCA Civ 261, other than a reiteration of the principle derived from\u00a0Economides v Commercial Union<\/em>\u00a0[1998] QB 587 that a declaration in a proposal, that information is true to the best of the proponent\u2019s knowledge and belief, connotes only a test of honesty, and not accuracy.<\/p>\n

However, the decision (which is reported at\u00a0https:\/\/www.bailii.org\/ew\/cases\/EWCA\/Civ\/2019\/261.html<\/a>) struck me as a textbook example of how to alienate the tribunal.<\/p>\n

Background<\/strong><\/p>\n

Mr Miley has a high-powered, high-pressure job at an investment bank.\u00a0He became (he said) to unwell too work, and for four years he received payments under a Permanent Health Insurance policy written by Friends Life (\u201cFL\u201d).\u00a0FL then ceased making payments, contending that Mr Miley was exaggerating his condition.<\/p>\n

Mr Miley sued Friends Life.\u00a0The Trial Judge (Turner J) had been unimpressed by an application by FL that he should recuse himself because (or so FL submitted) some questions he had emailed to their QC apparently demonstrated bias.\u00a0He dismissed the recusal application, and in a subsequent judgment held in favour of Mr Miley<\/p>\n

FL appealed to the Court of Appeal, and again pursued a forensic course which seems not to have endeared them to the Lord Justices.<\/p>\n

FL\u2019s appeal rested on essentially two grounds.<\/p>\n

First, they contended, as I have said, that Mr Miley had exaggerated his condition.\u00a0Secondly, they contended that he had under-declared his income in the years he was receiving payments under the policy.\u00a0Both grounds failed.<\/p>\n

Exaggeration<\/strong><\/p>\n

As to the first ground, FL did not have permission to challenge the Trial Judge\u2019s finding that Mr Miley jad not been dishonest.\u00a0Despite that, FL saw fit to describe in the appeal papers a schedule of alleged misrepresentations (which of course might have been made by My Miley, if at all, merely carelessly) as\u00a0\u201cLies\u201d<\/em>.\u00a0The Court of Appeal didn\u2019t like that.<\/p>\n

FL also produced a separate 25-page of\u00a0“Schedule of Factual Inconsistencies”,<\/em>\u00a0picking out further alleged inaccuracies in Mr Miley’s presentation of his condition, on which the Court of Appeal commented drily that\u00a0\u201cwe were not invited to consider any of these items individually, either in the written or oral arguments presented on behalf of FL, and have not done so.\u201d<\/em><\/p>\n

Having managed seemingly to alienate the Court in this way, it transpired that much of FL\u2019s case turned on the fact that Mr Miley, while contending that he was too ill to do his job, had nevertheless gone to the pub on various occasions and had been on a number of holidays.<\/p>\n

The Court of Appeal was quick to conclude that being too ill to carry out a high-level, high-pressure job didn\u2019t mean that one was likewise incapable of going on holiday.<\/p>\n

It was also unimpressed by FL\u2019s complaint that, while claiming under the policy, Mr Miley had attended a \u201cbeer festival\u201d, instead preferring to quote this from the first instance judgment:<\/p>\n

” \u2026 In so far as the notion of a beer festival might, to the uninitiated, conjure up images of the participants cavorting in lederhosen whilst brandishing overflowing beer steins in scenes of infectious Bavarian gaiety, they must be dispelled. In reality, this was a rather understated affair in which patrons of the local public house were given the leisurely opportunity to sample a range of craft beers.”<\/em><\/p>\n

It was hardly a surprise that this ground of the appeal failed.\u00a0Instead, the Court of Appeal held that Mr Miley\u2019s account of the severity of his illness, in his periodic communications with FL, had been entirely accurate.<\/p>\n

Under-declaration of Income<\/strong><\/p>\n

FL\u2019s second ground seemed, from a \u201cblack letter\u201d perspective, more promising.\u00a0In two years\u00a0in which he claimed on the policy, Mr Miley hadn\u2019t disclosed very substantial sums represented by the vesting of shares, which he had received as part of his annual bonus while still working at his investment bank.<\/p>\n

Mr Miley relied on the fact that the relevant forms which he supplied to FL each year while claiming on the policy didn\u2019t require him to disclose \u201cincome from investments\u201d.<\/p>\n

One might have questioned – as FL certainly did – whether that was an apt description for Mr Miley\u2019s receipt of these shares.\u00a0However, the Court of Appeal was in no mood to accept that argument. Indeed, in the form of McCombe LJ, who gave the only judgement, it was highly critical of how the point had emerged at the trial in the first place:<\/p>\n

\u201cI have mentioned what I see as the unsatisfactory manner in which this issue arose at trial. There was no specific indication made anywhere in the pleadings or written arguments before trial that FL were relying upon a misstatement of income by Mr Miley\u2026. The matter only arose when the subject was sprung upon Mr Miley in cross-examination. ..<\/em><\/p>\n

\u00a0I note that no objection was taken to the unexpected line of questioning. However, I question whether the failure to make any mention of this subject in the pre-trial materials was consistent with the “cards on the table” approach encouraged by the Civil Procedure Rules. More particularly, the material deployed was being used to found a case based on alleged fraud. Such allegations are customarily required to be “distinctly alleged and as distinctly proved\u201d. That principle was not applied in relation to this matter in FL’s pleading in the present case.\u201d<\/em><\/p>\n

With that as the backdrop, not only did the Court of Appeal hold that Mr Miley genuinely didn\u2019t think his receipt of the shares needed to be disclosed, it went further and held that he was correct in that regard.\u00a0It was prepared to accept that in common parlance the shares might have been described as \u201cinvestments\u201d.\u00a0And it also said their vesting could be categorised as \u201cincome\u201d since, under the relevant tax legislation, they were\u00a0deemed\u00a0<\/em>to constitute income and were taxed accordingly.<\/p>\n

Coda<\/strong><\/p>\n

One doesn\u2019t know, given how unimpressed was the Court of Appeal with FL\u2019s appeal, Mr Miley has sought his costs on the indemnity basis.\u00a0But the moral \u2013 don\u2019t try bolstering a difficult case with tactics which just annoy the Judges.<\/p>\n

Jonathan Corman<\/a> is partner at Fenchurch Law<\/p>\n","protected":false},"excerpt":{"rendered":"

There wasn\u2019t much law in the Court of Appeal\u2019s recent decision in\u00a0Friends Life v Miley\u00a0[2019] EWCA Civ 261, other than […]<\/p>\n","protected":false},"author":68,"featured_media":136,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[3],"tags":[4,71,267,268,269,270,271],"class_list":["post-135","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-fenchurch-law","tag-jonathan-corman","tag-economides-v-commercial-union","tag-friends-life-v-miley","tag-judges","tag-mr-miley","tag-professional-risks"],"acf":[],"yoast_head":"\nHow to Annoy Judges - Fenchurch Law APAC<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/fenchurchlaw.com\/en-sg\/how-to-annoy-judges\/\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"How to Annoy Judges - 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