Mohammed Dewji v Prudential International Assurance plc

1. I have before me an appeal by Prudential International Assurance plc (the “Appellant” or ”Prudential”) against the order of Mr Recorder Kelly KC made in the County Court at Central London on 24 January 2025 (the “Order”). The appellant’s notice is dated 12 February 2025 and was issued on 13 February 2025. Permission to appeal was granted by Order of Bacon J dated 12 May 2025.

2. Mr Joseph Steadman of Counsel appeared for the Appellant/Defendant, Prudential, and Mr Saad Karim of Counsel for the Respondent/Claimant, Mr Dewji. I am grateful to both of them for their written and oral submissions. The Procedural History

3. The respondent, Mr Mohamed Dewji (“Mr Dewji” or the “Respondent”), commenced proceedings against Prudential by Part 7 Claim Form received and issued in the County Court Business Centre Online Civil Money Claims on 31 July 2023.

4. The claim relates to a life assurance and critical illness policy known as the Flexible Critical Illness Plan (the “Policy” or the “Plan”) which was sold to him in 2000 by Prudential (then called Scottish Amicable International Assurance plc). (For convenience I refer to “Prudential” throughout). The claim (as amended) asserts breach of contract, misrepresentation, negligence and breach of various of the Financial Conduct Authority’s Conduct of Business Rules, giving rise, it is said, to statutory liability under Section 138 D of the Financial Services and Markets Act 2000 , in each case on the part of Prudential.

5. In very broad terms, the underlying dissatisfaction of Mr Dewji is identified as being that he was paying more for the Policy by way of premia and was entitled to less under the Policy as compared with other members of his family who had taken out similar policies. His claim was originally quantified as being just under £5,000 (leaving aside the costs of the Claim Form).

6. On 1 September 2023, Prudential issued an application to strike out, supported by a witness statement from Ms Michelle Cumming, a solicitor and legal director at M&G plc, the parent company of Prudential. The grounds for the application were essentially two, first, that the claim was time barred and/or (for that among other reasons) had no reasonable prospects of success and secondly, that it was inadequately pleaded and, in effect, (legally) embarrassing in the sense that its inadequacies were likely to obstruct the just disposal of the proceedings.

7. By order dated 15 November 2023 the claim was transferred to the County Court at Central London.

8. On 5 January 2024, DJ Rippon allocated the claims to the small claims track and directed a hearing of the application with a 2 hour time estimate.

9. On 5 March 2024, the hearing was, by consent, re-listed. Later the date of the hearing was set as 24 April 2024.

10. On 23 April 2024, by consent, the hearing was adjourned to enable Mr Dewji to amend the Claim Form and file and serve fully pleaded Particulars of Claim.

11. On 13 May 2024 such documents were filed.

12. The amended Claim Form sought damages of more than £25,000 but less than £100,000 and contained brief details of the claim as follows “ The claim raises out of a Flexible Critical Illness Plan purchased by the Claimant from the Defendant which was incorrectly medically loaded, subsequently travel loaded in retrospect and excluded the Waiver of Premium Benefit in breach of the terms of the Plan, the Duty of Care owed to the Claimant and the FCA’s rules.”

13. The matter came before DJ Rippon in the County Court at Central London on 20 August 2024. He allocated the case to the multi-track and, as Prudential was by this time also seeking summary judgment but the application notice did not contain the formal requirements for such an application, gave permission for an amended application notice to be filed and served. That amended application notice was dated 17 September 2024 and was the application notice before the Judge.

14. In the meantime, on 2 September 2024, Mr Dewji signed re-amended particulars of claim. The relevant re-amendments were primarily to raise a case that s32 of the Limitation Act applied, either because of deliberate concealment of relevant facts by Prudential or because of mistake on his part.

15. On 24 January 2025 the matter came before the Judge. As I understand it, before him (and certainly before me) that part of the application based on the pleading being inadequate and, as I would put it, legally embarrassing, was not pursued.

16. After a full day’s hearing the Judge dismissed Prudential’s applications to strike out or, further or in the alternative, for summary judgment. Before considering his judgment it is necessary to consider the case and the evidence in a little more detail. The evidence generally

17. I should start by saying that I was presented with a number of bundles containing contemporaneous documents and correspondence. Save that it was accepted that all of the same were “in evidence”, it was unclear to me whether the same had all been properly adduced by way of being exhibited to witness statements. Further, some documents that had been before the Judge were apparently left out of the appeal bundles by Prudential on the basis that they were “not relevant”. Mr Dewji lodged a supplementary bundle of documents. Some had apparently been before the Judge (though how they had been adduced into evidence was unclear to me) and others had not.

18. Ms Cumming’s witness statement also had a large exhibit but that exhibit was not produced in the bundles before me as an exhibit. Further, references in her witness statement to specific pages of the exhibit to her witness statement were not accompanied by cross references to the relevant documents as appearing in the application bundles.

19. The overall effect was that I was unable readily to identify what had been before the Judge, whether there were any new documents placed before me, which documents had been before the Judge but were not before me and, for the main part, which party had put which documents before the court. This was wholly unsatisfactory.

20. The only witness statement before the court was that of Ms Cumming. This meant that Mr Dewji had not placed his own testimony before the court and instead there were times when it seemed to be suggested that his evidence was (at least in part) as set out or referred to in the correspondence without being properly confirmed by way of signed witness statement, containing the required statement of truth. The facts and the documents

21. As I understand it the claim primarily focusses on alleged breaches of duty by Prudential during three time periods. The first relates to the taking out of the Policy by Mr Dewji in 2000. The second relates to a period when the parties agreed to submit a dispute (largely based on Mr Dewji’s same dissatisfaction about the level of premia and the value of the Policy that I have referred to as underlying the current claim) to the relevant ombudsman in the Republic of Ireland and the course of that process leading to a determination by the ombudsman in April 2013. The third relates to a period in about 2021 when it is asserted that Prudential wrongly and in breach of contract applied a travel loading to the Policy with retrospective effect. Application and issue of the policy

22. By application form dated 12 June 2000 (the “Application Form”), Mr Dewji made an application to Prudential in respect of The Flexible Life Plan and the Flexible Critical Illness Plan. This contained Sections A to I. Section I was a declaration signed by Mr Dewji of which one of the component parts was confirmation that he had “read the sales brochure and understood the nature of the contract”. There is no evidence gainsaying Ms Cumming’s evidence that, at the time, the process was that Mr Dewji would have been provided with a copy of the Plan Brochure and Key Features Document that I shall come onto via his financial adviser and that there is no reason to think that that process was not followed in this case.

23. Under Section D of the Application Form, life cover and critical illness cover were applied for in the sums of £1 million and £250,000 respectively. The cover type identified was “Standard Cover Basis”.

24. Under Section E of the application form waiver of premium was applied for but the box was also ticked to confirm that if Prudential was unable to offer waiver of premium, the applicant wished the plan to be issued without receiving confirmation of this restriction to the proposed cover.

25. Under Section G of the Application Form it was confirmed that Mr Dewji lived or travelled outside the UK, apart from holiday visits. The Form asked, “If yes, please confirm full details regarding your travel….”

26. In evidence, described as being part of the Application Form but clearly being part of some other form, even if submitted with the Application Form, is page 6 of a document to be filled in by an independent financial adviser dealing with whether the policy is to be written or placed into trust and confirming certain money laundering checks had been undertaken. Mr Dewji’s financial adviser is identified as being Friendship Financial Services at an address in Hayes Middlesex, the form being signed on its behalf by Mr Najmudean F Bhaiji (the “IFA”). He apparently completed the request that the Policy Schedule(s) should be “issued to the IFA”.

27. A pre-sales illustration issued on 22 June 2000 shows (among other things) an initial annual premium of £4,522.86 for the cover that I have referred to. The cover type is described as “standard”. Waiver of premium is included but the initial premium excluding waiver of premium is given as £4,267.83. Premia are said to be reviewable after 10 years and every 5 years thereafter. The illustration also contains the following wording: "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)."

28. The Application Form contained considerable detail on Mr Dewji’s medical history. He also had a medical examination which ended in a record signed and dated by him on 18 July 2022 setting out his answers to various further medical questions. Part two of the form contained the relevant doctor’s answers to certain questions, including data following from readings taken.

29. By letter dated 27 July 2000 addressed to Prudential, Mr Dewji referred to his application and another one made by his wife and said that he understood that Prudential wished to confirm details of travels. He confirmed travel “for business purposes” to India “(Mostly Bombay or big cities)”, Kenya (“(Mombasa and Nairobi)”, Tanzania “(Dar-es-Salaam) and “Far East (Hong Kong and Singapore)”. “Maximum stay in one place is two weeks”. He also referred to making an annual pilgrimage to Mecca: “maximum stay is 10 days”. In addition he enclosed a cheque in respect of the two policies and identified the investment funds that he and his wife wished to invest in. The letter is signed both by Mr Dewji and his wife, Mrs Siddika M Merali. This letter (and the cheque) was apparently sent to Prudential under cover of a fax from Mr Bhaiji of Friendship Financial Services dated 27 July 2000 which referred to the “Travel pursuits declaration of Mr Dewji” and asked for the policies to be issued as soon as possible.

30. Underwriting notes have been disclosed and are in evidence. These contain the following (among other matters): “ trave l details rec,d , 31 /07 never referred to u/w India [bombay & big cities] Far east [hk & Singapore] Kenya(mobas sa &. nairobi] Tanzania [dar-es-salam] max stay in 1 place is 2 wks pjlgrimage to mecca every yr max stay is 10 days ? f requency 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 th at is nearly 6 mth per year .. therefore suggested 2 per mille rating ….. …… s uggest medically std, 2 per mille for travel, therefore decline wop &await”

31. At this point the underwriters were suggesting that waiver of premium cover should be refused and that there should be loading of “2 per mille” (which the evidence shows to be £2 per £1,000 (of cover)) for travel (but nothing for medical condition).

32. By letter dated 14 August 2000 sent by Prudential to Mr Dewji, Prudential indicated that they could not proceed on the basis proposed in the application form and said that to issue the plan they would need to apply the special terms attached. They asked Mr Dewji to sign and return those terms if he wished to proceed. Mr Dewji duly did so. The document headed “Special Terms” which was attached to the letter, and which Mr Dewji signed and returned, set out various details of the policy to be taken out by Mr Dewji including the plan type, the plan number (S6344145H) and the Life Cover Sum Assured (£1 million) and the Critical Illness Cover Sum Assured (£250,000), both payable on a single life basis. A Revised Premium was stated of £4,883.40 UK Sterling (Annually). The document went on to state that “The Waiver of Premium Benefit will not be available for Mohammed Merali Dewji under the Plan”. The document went on to contain a declaration by Mr Dewji that he wished to proceed with the plan on the basis of the Special Terms listed above and confirming no relevant change in health, occupation or material facts since the date of his application. The document is signed by Mr Dewji and dated 16 August 2000.

33. It is notable that although the removal of waiver of premium cover from the offer should, all things being equal, have reduced the level of premium (as the earlier illustration confirmed), the premium now being sought was in fact higher than that originally quoted for. This in fact related to the loading, although that was not said in terms.

34. 10 Policy Schedules, each dated 23 August 2000 were issued by Prudential with numbers S6344145H-01 to S6344145H-10. At the end of each Schedule there is a box for “Related Policy Documents”. They are listed as being “Policy Conditions Reference SAE/FC1/005” and “Special Provisions S6355145H”.

35. In evidence is a booklet described as being “Flexible Critical Illness Plan Conditions Booklet (SAE/FCI/005) (“Policy Conditions Booklet”). There is also a document headed “Special Provisions, Special Provisions Reference S63344145H”. Each document, with the Schedules, was on the face of it sent to Mr Bhaiji. There is a document dated 23 August 2000 headed “Memorandum”. It is from Prudential and addressed to Friendship Financial Services, with “N Bhaiji” listed under “Your reference”. The Memorandum says (among other things): “We are pleased to attach Plan documentation as outlined below: Copy Key Features Document Issue Letter Policy Schedule(s) and Policy Conditions Special Provisions”

36. It has been asserted in correspondence that the Special Provisions document was not received but this has not been confirmed by way of witness statement.

37. As points were taken on certain of the terms and conditions, I should refer to the following provisions of the Policy Conditions Booklet.

38. “Part 1: Introduction” contains the following (among other 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.”

28. “Part 2: General Provisions” contains the following (among other provisions): “8. Law of the Plan Policies - England The Plan policies shall be governed by the law of England and the rules in this Plan Conditions Booklet shall be construed in accordance with the laws of England. The courts of England shall have exclusive jurisdiction to settle any which may arise out of or in connection with the terms and conditions of the Plan policies.”

39. “Part 5: Regular Premium Payments” contains the following (among other provisions): “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…. 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 Act uary 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.” Broadly, if the value of the units is considered insufficient, the policyholder has the option to reduce the cover or to increase the premium payable under the Plan.

40. Part 6 deals with Waiver of Premium Cover. Broadly such cover enables premia to be waived (and regular premium units are allocated to the Plan as if regular premia were being paid) when a policyholder suffers a period when he/she is incapacitated in a relevant way. The terms make clear that if waiver of premium applies the policy schedules or related documents will so state.

41. Clause 8.3 in Part 6 is as follows: “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.”

42. The Special Provisions document includes the following: “ 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.”

43. The precise manner in which the loading (also referred to as “rating”) operated is not material for present purposes. As explained to me by Mr Steadman the loading was to the cost of cover provided. The result was that less of the amount paid by way of premium would be available to create long term investment growth in terms of surrender value of the Plan.

44. By further document dated 23 August 2023, Prudential produced a further illustration and policy summary. Part of the information was, as the relevant headings says, “How much will it cost?”. The cover type was stated as being “standard”. The premium was stated as £4,883.40 and it was explained that it would be reviewed and adjusted in the event of Mr Dewji suffering a critical illness. In addition, the premium would increase annually by the amount required to support the increase in benefits as a result of indexation. There were further boxes on the form setting out data under the headings “What the benefits might be” and “What happens if your contributions stop?”.

45. The benefit of the Plan was assigned to be held on trust with effect from 25 October 2000. The trustees are Mr Dewji and two other members of his family. The complaint to the Irish Financial Services Ombudsman 2012

46. In about 2010, the Plan was the subject of review in accordance with the policy terms and conditions. During the preceding 10 years Mr Dewji had taken advantage of a term in the policy conditions by which he could automatically increase the sum assured by the greater of 7.5% and the prevailing rate of increase in the UK Average Earnings index without medical evidence. As at September 2012 the life assurance sum assured was some £2,381,779.66 and the critical illness sum assured was £545,444.91, sustained by an annual premium of £18,613.91. The surrender value was just under £9,000.

47. Mr Dewji had engaged in correspondence with Prudential complaining about what he regarded as a “huge hike” in premium level and the low surrender value of his policy compared with the position of his two brothers who, he said, had taken out similar Plans with Prudential. Their plans too had had a review but the premia they were respectively to pay were much lower and the surrender values much higher than in the case of Mr Dewji.

48. By letter dated 23 March 2012 he escalated his complaints to the Financial Services Ombudsman in the Republic of Ireland (the “Ombudsman”) and enclosed a completed complaints form.

49. One issue that the Ombudsman had to deal with was that The Plan was governed by English law. There is a letter dated 1 May 2012 in evidence from the Ombudsman to Prudential making this point as follows: “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.”

50. The entirety of the correspondence between the Ombudsman and Mr Dewji/Prudential is not in the appeal bundle.

51. I consider that both Mr Dewji and Prudential must have agreed that the complaint be examined and adjudicated upon under Irish law, otherwise the ombudsman would not have proceeded to a determination.

52. By letter dated 15 May 2012, Prudential set out its response to Mr Dewji’s complaint to the Ombudsman by way of “final response” as directed by the Ombudsman. Under the heading “2. Comparison with your brother’s Plans”, the point was made that Mr Dewji’s policy was rated (or loaded): “ As explained to your financial adviser in our letter to him dated 8 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 on 16 August 2000 following the underwriting of your Plan. A copy of the signed Special Terms letter is attached for your information.”

53. Mr Dewji denied that his policy was rated by letter dated 13 July 2012 sent to the Ombudsman.

54. By letter dated 15 August 2012, Prudential wrote to Mr Dewji referring to the “2 per mille rating” which applied to his Plan.

55. What is clear is that Prudential referred to the rating (in fact set out in the Special Provisions (of £2 per mille)) as being a key explanation for the difference between the financial position of Mr Dewji’s plan and those of his brothers under their respective Plans. However, the explanation did not in terms refer to the Special Provisions themselves but to the special terms letter of 16 August 2000 signed by Mr Dewji. The latter included a larger premium figure but did not in terms set out what the rating was nor that it would apply throughout the policy. The letter was, on its face, more directed at an acceptance that there would be no waiver of premium cover. Further, the reason given for the rating to Mr Dewji and the Ombudsman in 2012/2013 was, it appears, erroneously given as being medical grounds whereas, as the evidence shows, in 2000 the rating had been applied because of travel reasons. This is shown most clearly by three letters.

56. By letter dated 5 November 2012, Prudential set out its case on Mr Dewji’s complaint to the Ombudsman. The letter explained that the reason for the differences between Mr Dewji’s policy and that of his brothers was that he had paid higher charges as a result of the rating applied to his policy: “ 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 fo r ce on the terms set out in the Special Terms Letter signed by Mr Dewji on 16 August 2000.”

57. By letter dated 29 January 2013, from Prudential to the Ombudsman, it was said: “ With regard to the rating applied at outset I would refer you to my letter dated 15 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 the 16 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.”

58. By letter dated 19 February 2013 various valuations of Mr Dewji’s policy and those of his brothers were provided by Prudential to the Ombudsman. With regard to the rating it was said as follows: “Mr Dewji’s medical condition Mr Dewji’s rating was based upon the medical information listed on the application form he submitted when he originally applied for his Plan. A copy of the application form was included in the bundle of paperwork sent under cover of my letter to the Bureau dated 5 November 2012. If Mr Dewji wishes to discuss his medical condition he should take this up with his GP”.

59. The eventual findings of the Ombudsman were sent under cover of a letter dated 9 April 2013 from the Ombudsman to the legal manager at Prudential. They include the following: “[having referred to section 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 on 23 March 2012 and in light of the above I can only comment on matters that may be in dispute which occurred after 23 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.”

60. I need not set out Prudential’s case as summarised by the Ombudsman save to note that Prudential referred to the policy documentation, the fact that they had provided fund performance details as requested and comparative details of the policies, premia, charges and benefits for the complainant’s and for his brother’s policies (and had obtained the required consents from the other policyholders to do so) and they asserted that the policy had been correctly administered in accordance with the Plan Contract Terms.

61. Having referred to the process followed by the Ombudsman and the evidence and submissions made to him, the Ombudsman confirmed that he did not consider that a conflict of fact such as would require the holding of an oral hearing was disclosed on the material before him and that that material enabled him to make a finding without the need for an oral hearing.

62. The Ombudsman noted that the Complainant did not deny a number of assertions made by Prudential. Among others, these included an assertion that Prudential had issued a Key Features Document, a policy brochure and policy documentation to the Complainant when the policy was effected and that he had been advised of the policy benefits and the (assumed) growth rates. They had also said that the Complainant was afforded a 14 day cooling off period, which enabled him to cancel the policy within that period if he so wished.

63. The Ombudsman found that there was no evidence that Prudential had incorrectly implemented policy reviews or conducted reviews contrary to the Terms and Conditions of the contract. He consequently accepted that the policy was subject to review and that the reviews were appropriately conducted, as argued by Prudential.

64. He noted that the Complainant said that the policy was not accepted on special terms, but referred to the letter sent to Mr Dewji on 14 August 2000 including the Special Terms document.

65. The Finding then referred to Mr Dewji having signed the letter of 16 August headed “Special Terms”, confirming that he wished to proceed with the policy on “the terms set out in this letter”: “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.”

66. As regards the underlying complaint, based on a comparison between Mr Dewji’s plan and those taken out by his brothers, the Ombudsman found: “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.”

67. The Finding ended as follows: “The above finding is legally binding on the parties, subject only to an appeal to the High Court within 21 calendar days”. This set out the then statutory position under Irish law. Section 57CL of the Central Bank Act 1942 (as amended by the Central Bank and Financial Service Authority of Ireland Act 2004) (the “1942 Irish Act”) provided for a right of appeal by a complainant or the regulated financial service provider to the High Court if dissatisfied with a finding of the Financial Services Ombudsman. However, by section 57CL(3), such an appeal must be made within the period laid down by the rules of court or within such further period as that court may allow. Under the relevant rules of court the period to appeal was 21 calendar days.

68. Following the Ombudsman’s determination, Prudential sent a cheque to Mr Dewji for £150 “in full and final settlement of this matter”. Thereafter Mr Dewji paid the premia set from time to time by Prudential. Fresh complaints by Mr Dewji: June 2021 onwards

69. By June 2021, Mr Dewji was again expressing dissatisfaction as regards the increased levels of premium that he, and also his wife, were paying on their Plans with Prudential. In a letter dated 3 June 2021, Mr Dewji seemed to be aware that Prudential were saying that there was a rating on his policy due to travel. Paragraphs 7 and 8 were a number of paragraphs referring back to an email from a Ms McCarthy (referred to in the letter as “CM”) at Prudential dated 28 May 2021 to Mr Bhaji: “7) C M has misinterpreted the letter of 16 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.”

70. By email dated 9 August 2021, Prudential replied to an email from Mr Ali, Mr Dewji’s adviser dated 25 July 2021. The response was by way of insertion of text in blue at various places under Mr Ali’s original emailed text in black. The explanation regarding loading was set out clearly in answer to Mr Ali’s paragraph numbered one. Mr Ali had written: “1) The document signed on 16th 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.”

71. Prudential’s reply (given by Mr Diarmuid Sugrue) was as follows: “ 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.”

72. By email dated 30 September 2021, Prudential confirmed to Mr Dewji’s adviser: “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.” The Re-amended Particulars of claim in this case (1) Alleged breaches of contract

73. I turn to the Re-amended Particulars of Claim which now articulate the claims made by Mr Dewji. Save where otherwise appears, references hereafter in this judgment to paragraph numbers are to the relevant paragraphs of the Re-amended Particulars of Claim.

74. In paragraph 20 it is asserted that Mr Dewji signed the Special Terms letter (16 August 2000) excluding waiver of premium “on the misunderstanding that this was a requirement imposed on all retail clients in his position”.

75. Paragraphs 21 and 22 refer to Clause 8.3 of the Policy Terms and Conditions and assert that removal of the waiver of premium benefit was a breach of the Claimant’s plan and that this breach was not capable of being identified until 23 August 2021.

76. Paragraph 23 asserts that a “medical loading” was applied despite there being no medical grounds justifying such a loading and that on 23 August 2021 the Defendant conceded that the loading had been applied incorrectly.

77. Paragraph 24 asserts that a travel loading was added retrospectively after 23 August 2021, to Mr Dewji’s plan from inception and that this amounted to a repudiatory breach of contract.

78. Paragraph 25 asserts that Prudential has added unfair and excessive charges on the Claimant’s Plan which include increased and miscalculated premia, unauthorised deductions and unjustified administration charges which has resulted in a significant reduction in his fund valuation and surrender value under the Flexible Critical Illness Plan.

79. These contractual breaches are said to have caused a loss of £96,236 as particularised later in the Particulars of Claim. (b) Alleged breaches of Conduct of Business Rules

80. A number of breaches of Conduct of Business Rules (“COBS”) are asserted against Prudential as follows.

81. COBS 2.1: An alleged failure to act honestly, fairly and professionally and in accordance with the Claimant’s best interests by adding medical and subsequently travel loadings causing increased and miscalculated premia, unauthorised deductions and unjustified administrative charges (paragraph 27a).

82. COBS 2.2A: a failure to disclose relevant information before providing services in good time prior to the conclusion of the contract and in comprehensible form. The special terms were sent 9 days prior to the conclusion of the contract (paragraph 27b).

83. COBS 4.2.1: An alleged failure to ensure that its communication with the Claimant was fair, clear, and not misleading in that there were unfair exclusions by way of ‘Special Terms’ and incorrect and unjustified medical and subsequently travel loadings all of which were unfair, unauthorised, and misleading (paragraph 27c).

84. COBS 4.5.3: An alleged failure to accurately and always give a fair and prominent indication of the relevant risks and benefits to the Claimant when disclosing the “Special Terms” without prejudice to the Claimant’s assertion that these “Special Terms” were unjustified and the Defendant incorrectly applied medical and subsequently travel loadings (paragraph 27d).

85. COBS 9.2: an alleged failure to take reasonable steps to ensure that the Claimant’s plan is suitable for the Claimant and consistent with the Claimant’s insurance demands and needs. The Defendant, it is said, added unjustified, unnecessary and disproportionate medical and subsequently travel loadings which were not so suitable (paragraph 27e).

86. COBS 14: an alleged failure to provide the Claimant with a description of the risks of designated investments (paragraph 27d).

87. The above breaches are said to give rise to a cause of action under section 138 D Financial Services and Markets Act 2000 (“FSMA”).

88. I note that no point is taken at this stage by Prudential, for the purposes of the application before me, as to when COBS came into being (my recollection, which may be wrong, was that it was only in about 2007) nor as to the application of s138 D FSMA (which from recollection, and I may be wrong, only into force in about 2013), though prior to that there was a similar provision in section 150 FSMA 2000 . Again, a loss of £96,236 is asserted as particularised later in the statement of case. (c) alleged breaches of a duty of care

89. Paragraphs 29 to 32 set out matters on the basis of which a duty of care (and its scope) is said to be owed by Prudential to Mr Dewji.

90. Paragraph 33 alleges negligence by Prudential in imposing unfair exclusions by way of Special Terms and incorrect and unjustified medical and subsequently travel loadings (which are said to be unfair, unauthorised, not documented, unnecessary and misleading).

91. Paragraph 34 alleges a breach of the duty of care by Prudential in concealing and/or omitting and/or misrepresenting and misstating facts about loadings to Mr Dewji’s Plan and the reasons why Special Terms were invoked to exclude the waiver of premium benefit.

92. Paragraph 35 asserts that Prudential misled the Ombudsman by asserting that differences in outcome for various Plans comparing Mr Dewji’s Plan with those of other members of his family were due to a medical loading, caused the Claimant further delay and protract unnecessary losses.

93. Again the causal loss is said to be £96,236 as particularised later in the statement of case.

94. The loss of £96,236 is particularised in paragraph 37 and is said to comprise: (1) not less than £45,223 being the difference in underwriting charges between Mr Dewji’s policy and that of his younger brother (whose policy was not loaded); (2) not less than £51,013 being the difference in the average of life cover charges for Mr Dewji’s two brothers and for Mr Dewji under their relevant plans up to March 2022; (3) the accumulation of the amounts in (1) and (2) at the respective fund unit growth rates over the period 2000-2024 (further particularisation to follow disclosure). (d) Limitation

95. A defence of limitation was anticipated and is dealt with as follows (mainly by re-amendment): (1) It is accepted that the primary limitation period for all three types of claim (breach of contract, breach of statute and breach of the duty of care) is 6 years ( sections 2 , 5 and 9 of the Limitation Act 1980 ) (paragraph 43). (2) Reliance is placed upon deliberate concealment under s32(1) (b) Limitation Act 1980 . It is asserted that facts relevant to the claim had been deliberately concealed by Prudential and/or those acting on its behalf and that the primary limitation period did not begin until on or about 9 August 2021. The facts deliberately concealed are said to be (a) that the plan was subject to travel loading and/or that Prudential applied travel loading and made deductions in respect of that loading and (b) that the increase in Premium was due to travel loading (paragraphs 44-49). (3) Reliance is also placed upon s32(1) (c), extension of the limitation period in cases where the action is a claim for the consequences of a mistake. It is said that Mr Dewji mistakenly subscribed for and renewed the Plan on the basis that a travel loading was not applied and that the Defendant made a mistake in applying travel loading as Mr Dewji had not agreed to the same and the application of such loading was in breach of clause 8.3 of the Policy Terms and Conditions. The mistake was said to have been discovered in August 2021 and not, even with reasonable diligence, to have been discoverable before then (paragraphs 50-54).

96. It is to be noted that there is a tension in the Particulars of Claim. As originally drafted (as Amended Particulars of Claim), the factual assertion was that Prudential had originally applied a loading on medical grounds but had then removed that loading in about 2021 and applied a loading (in the same amount) in respect of travel with retrospective effect. The re-amendments to bring in a case under s32 Limitation Act 1980 proceed on the basis that there had been a travel loading from inception (the travel nature of the loading having been concealed). As I understood Mr Karim, his client was not prepared to drop the earlier allegation. The application before Mr Recorder Kelly KC

97. Mr Recorder Kelly KC had the benefit of detailed skeleton arguments from each of Mr Steadman and Mr Karim.

98. For present purposes I can summarise some of the key provisions of Mr Steadman’s skeleton argument before the Judge. They are largely repeated before me.

99. First, he referred to the relevant provisions of the CPR regarding strike out and summary judgment and set out a number of references to and quotes from a number of the well-known authorities in those two areas.

100. Secondly, he identified the relevant legal tests under section 32(1) (b) and (c) and, for the reasons that he set out, submitted that on the facts they did not apply and that the majority of the claims accordingly had no real prospect of success and should be struck out.

101. Thirdly, he identified certain claims that he said were res judicata by virtue of the decision of the Ombudsman.

102. Fourthly, he refuted the assertion that travel loading had been applied retrospectively and so, he submitted, claims based on that assertion failed.

103. Finally, he dealt with claims arising from the mistaken assertion of Prudential that the loading that applied had been applied for medical reasons (rather than travel reasons). In brief, he submitted that there was no sustainable pleading of causal loss by way of reasonable reliance on any such misrepresentations.

104. The hearing as I understand it, took almost an entire day. The judgment of the Recorder

105. The approved transcript of the Recorder’s judgment is short, 14 paragraphs extending over little more than a page and a half.

106. Having outlined what the dispute was about and some of the issues raised, the Judge concluded as follows: “12. In my view it is inappropriate for a case which would take as long to decide that preliminary issue as a trial would take to decide the issue. This is one such case. Here there are issues such as: i. do the exceptions to the limitation period such as fraud, mistake, and/or concealment apply? ii. When did the defendant know the essential relevant facts? Was it 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?

13. All of these have to be explored and a determination in my view will have to be made. They are inappropriate for this sort of application, but I am invited by the defendant to “take a view” on the case. I cannot confirm it to both parties as it would take just as long as a trial to do so in fairness.

14. I take the view that the claimant may well have a real chance of success on one or more of his points, and I cannot deprive him of his right to have his legal rights either vindicated or determined after a full and fair trial. I therefore dismiss this application.”

107. The Judge’s order also recited the following: “ 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;”

108. In granting permission to appeal on the papers, Bacon J commented: “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 Grounds of Appeal

109. There are four grounds of appeal as follows.

110. Ground 1: “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” .”

111. Ground 2: “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.”

112. Ground 3: “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 under section 32(1) (b) of the Limitation Act 1980 (deliberate concealment); and (ii) the Claimant had no real prospect of succeeding on his pleaded case under section 32(1) (c) of the Limitation Act 1980 (mistake).”

113. Ground 4: “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.”

114. Grounds 1 and 2, which amount to a submission that the Judge, as a matter of law, applied the wrong tests are not determinative. If I find that he applied the wrong legal test then it is agreed that I should myself apply the correct tests and reach a determination. If, on the other hand, the Judge applied the correct legal tests, then there still remains the issue of whether he applied those tests correctly and, in effect, I must consider what result flows from a correct legal application of the tests and whether it is different to that reached by the Judge. Ground 1: discussion and determination

115. It was common ground before me that the tests that the Judge should have applied were those under CRR 3.4(2)(a), so far as the application to strike out was concerned, and under CPR r24.3(a), so far as the application was for summary judgment. Under the former test the issue is whether or not the Particulars of Claim disclose no reasonable grounds for bringing the claim and under the latter test the issue is whether or not the Claimant is shown to have no real prospect of succeeding on his claim.

116. I did not understand Mr Karim to dissent from the main propositions advanced by Mr Steadman in his skeleton argument below with regard to the applicable principles. For present purposes I adopt (with minor modifications) those submissions. They include the following.

117. The test for striking out for “ no reasonable grounds for bringing the claim ” is the same as the “ no real prospect of success ” test for summary judgment: Maranello Rosso Ltd v Lohomij BV [2021] EWHC 2452 (Ch) at [23]–[25], applying Nugee LJ’s judgment in Libyan Investment Authority v King [2021] 1 W.L.R. 2659 .

118. The principles were summarised by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EHC 339 (Ch) at [15] (and approved in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 at [24]). In Amersi v Leslie [2023] EWHC 1368 (KB) at [142] the summary was added to and slightly recast as below): “(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 ”. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd -v-TTE Training Ltd [2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation -v- Allianz Global Corporate & Speciality AG [2008] Lloyd’s Rep IR 413 [14] per Moore-Bick LJ; and Ashraf -v- Lester Dominic Solicitors & Ors [2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc [2021] 1 WLR 1294 [128] per Lord Hamblen. (6) (Lord Briggs explained the nature of the dilemma in Lungowe -v- Vedanta Resources plc [2020] AC 1045 [45]: “… 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).

119. I note that a recent example of the court “drawing a line” in the context of limitation is McCarthy v Proctor [2025] EWHC 25 (Ch) especially at [21].

120. The relevant tests and applicable principles are relevant first in determining whether the Judge applied the correct test under grounds of appeal 1 and 2 and secondly in considering whether he applied the test correctly when considering grounds of appeal 3 and 4. I turn to ground of appeal 1.

121. Mr Steadman submitted that the Judge found that Mr Dewji “may well have” a real prospect of success but that this was not the same as a holding either that Mr Dewji did have a real prospect of success on his claim or that the Particulars of Claim disclosed reasonable grounds for bringing the claim.

122. Mr Karim submitted that the Judge applied the correct test and in particular that the test is one of a “realistic” prospect of success rather than a “fanciful” one (see Swain v Hillm an [2001] 1 All ER 91 at 92j) and that the Judge’s finding that Mr Dewji “may well have” a realistic prospect of success is entirely consistent with that test.

123. I agree with Mr Steadman that the test as articulated by the Judge and taken literally is the incorrect test. However, and notwithstanding that the Judge had an opportunity to correct the transcript, I consider that this was a mere slip of language and that the Judge, who had detailed written submissions on the point, did not in fact apply the incorrect test, but the one set out expressly in the rules and discussed over some pages in the Skeleton arguments before him. In effect, he was saying that the Claimant might well succeed at trial which is the same as saying he had (at least) a real prospect of success.

124. As regards the criticism that the Judge found that the prospects of success of Mr Dewji were by reference to “some points” rather than to the claim itself is, in my judgment, another slip in oral delivery.

125. I would not therefore uphold the first ground of appeal. Ground 2: discussion and determination

126. The short point here is that nowhere in the test for strike out or summary judgment is the test adumbrated in terms of the length of time that a hearing will take. Indeed, in the well-known case of Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 700 it was said (by Sir Gordon Willmer): " 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."

127. However, the time that a summary judgment/strike out hearing takes may be indicative that the relevant party has a real prospect of success in their claim/defence and that strike out/summary judgment is not appropriate.

128. I do not consider that the Judge was saying that the relevant judicial determination process under CPR 3 and CPR 24 would involve a hearing which would take as long as a trial and that that was a separate reason for refusing to accede to the Defendant’s application. Rather, it was a comment upon the factual position as he saw it.

129. I should add that I do not consider that the Judge was taking the sort of case management decision not to hear an interim application by reason of the prolonged and serious argument that would be needed, as considered under the former Rules of the Supreme Court in, for example, Williams & Humbert v W & H Trade Marks (Jersey) Limited [1986] 1 AC 368 where Lord Templeman said (at 435h-436A): “ 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” (emphasis supplied).

130. Here the Judge did not refuse to hear the application. In my judgment, and in any event, a day’s hearing and a consideration of the arguments in this case does not involve the sort of prolonged and serious argument under consideration in the Williams & Humbert case. As in the McCarthy case, Mr Dewji has had a full and fair opportunity to raise points he wishes to raise, and the points are fairly short and straightforward. Further there are clearly the countervailing benefits of avoiding a trial and the trial process that the Judge himself referred to in his judgment. If I am wrong as to my assessment of the Judge’s approach and the significance of his reference to the time taken, then I consider his approach would have been wrong.

131. On the basis of my interpretation of the Judge’s approach, I would not uphold ground 2. Grounds 3 and 4

132. In considering the third and fourth grounds of appeal I myself must consider whether the strike out/summary judgment tests are met by the Defendant. In doing so, I have considered carefully the above summary taken from the skeleton arguments before me and reminded myself of the notes to the two provisions in question as set out in the White Book.

133. The Judge appears to have dismissed the Defendant’s application on the basis that there was a real prospect of success on the limitation defence and that there were the factual (and in the case of (i) below, mixed questions of fact and law) issues that he referred to at paragraph 12 of his judgment which he could not resolve namely: “i. Do the exceptions to the limitation period such as fraud, mistake, and/or concealment apply? ii. When did the defendant know the essential relevant facts? Was it 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?”

134. As regards res judicata/abuse of process (which is relied upon in relation to the findings of the Ombudsman which are said to bind Mr Dewji), the Judge at paragraph 7 left the matter to one side but did not return to it.

135. It is necessary to set out the relevant law as regards limitation and res judicata. Reference to an abuse of process may be a reference to part of the test under CPR r3.4(2)(b) or may be a reference to the principle which is part of or associated with the res judicata principles (or extended res judicata principles, as it is sometimes put) being that under identified as flowing from the case of Henderson v Henderson . Broadly stated, the latter principle is that where a point could and should have been raised in earlier proceedings it will be an abuse of process to seek to raise it in later proceedings. The Law (a) Limitation

136. As regards limitation, it is now accepted by Mr Dewji that the 6 year limitation periods apply to all of the pleaded causes of action (see Re-Amended Particulars of Claim paragraph 40).

137. As I understand it, the “long stop” date of 15 years under s14 B Limitation Act 1980 is not relied upon by the Claimant. It does not feature in Mr Karim’s skeleton argument save that he submits that the long stop in s14 B does not apply where s32 applies or that it does not override s32 (as to which see s32(5) Limitation Act 1980). In any event, paragraph 41 of the Re-amended Particulars of Claim refers to “non-acceptance” by the Claimant that the 15 year limitation period applies in respect of claims in negligent/negligent misrepresentation but apparently on the basis that “travel loading” was first applied in or about August 2021, with retrospective effect. I will return to this point but it suffices to say that if there is a cause of action from 2021 then there is no need to resort to s14 B as the proceedings were commenced within 6 years of 2021. I should also indicate that, as I go on to explain, on the evidence it is clear that travel loading (rather than medical loading) was applied from inception of the policy.

138. Section 32(1) -(3) of the Limitation Act 1980 provide as follows: “(1)…where in the case of any action for which a period of limitation is prescribed by this Act , either— (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. (2) References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent. (3) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

139. As regards “deliberate concealment” under s32(1) (b) the leading authority is Canada Square Operations v Potter [2023] UKSC 41 . That case was dealing with the meaning of “deliberately concealed” and “deliberate commission of a breach of duty” but Lord Reid (with whom the other Justices agreed) touched on the section generally.

140. As regards a “fact relevant” to the cause of action, Lord Reid said at paragraph [96]: “[96] What section 32(1) (b) requires is that the defendant has “deliberately concealed” “a fact relevant to the plaintiff’s right of action”. The words “the plaintiff’s right of action” must refer to the right of action asserted by the plaintiff in the proceedings before the court. That follows from the terms of section 32(1) , so far as material: “…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 …” The right of action asserted by the plaintiff may or may not be well-founded: that is a matter which will only need to be determined if the plea of limitation is rejected. As to the words “a fact relevant to the plaintiff’s right of action”, that phrase has been interpreted as referring to a fact without which the cause of action is incomplete: see, for example, Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883 ; [2015] Bus LR 1362 . That interpretation is not in issue in this appeal, but it makes sense: if the claimant can plead a claim without needing to know the fact in question, there would appear to be no good reason why the limitation period should not run.”

141. As regards “concealment”, Lord Reid said: “[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”. In the present case, Rose LJ expressly stated that “inherent in the concept of ‘concealing’ something is the existence of some obligation to disclose it” (para 75). I respectfully disagree. As was explained at para 67 above, the word “conceal” means to keep something secret, either by taking active steps to hide it, or by failing to disclose it. A person who hides something can properly be described as concealing it, whether there is an obligation to disclose it or not. For example, an elderly lady who was afraid of burglars might conceal her pearls before going to bed, without any implication that she was obliged to leave them lying in plain sight. Some people use cosmetics (“concealer”) to conceal blemishes in their skin, without any implication that they are under an obligation to reveal the imperfections. [99] The position seems to me to be the same, as a matter of ordinary English, where concealment takes the form of the withholding of information with the intention of keeping it secret. For example, Samuel Pepys concealed the contents of his diary by writing it in code; but that does not imply that he was under an obligation to reveal what he had written. Someone who decides not to tell anyone that he has been diagnosed with cancer can properly be described as concealing his illness, without any implication that he is under an obligation to share the information. It is to be noted that in all the examples I have given, as in most if not all cases where “conceal” is used in the active mood, concealment involves intentional hiding or withholding of information. This underlines the importance of the explicit emphasis placed by Parliament on the requirement that the relevant fact must have been “deliberately concealed”. [100] Of course, if the defendant is subject to a duty of disclosure to the claimant, it is possible that that may be a relevant circumstance bearing upon whether it can be concluded that there has been deliberate concealment. The considerations to which Park J referred in Williams, para 14 – that the relevant fact was one which it was the defendant’s duty to disclose, or was one which he would ordinarily have disclosed in the normal course of his relationship with the claimant - may therefore have an evidential significance in determining whether there was deliberate concealment. But it has to be emphasised that this is not to say that the question of deliberate concealment can either be reduced to, or is dependent upon, a breach of duty.”

142. As regards the concept of “deliberate” concealment, Lord Reid said: “[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”. As Lord Scott explained in Cave at para 60, deliberate concealment for section 32(1) (b) purposes may be brought about by an act or an omission, but in either case “the result of the act or omission, i.e. the concealment [sc from the claimant], must be an intended result”. Accordingly, as Park J stated in Williams at para 14, the defendant must have considered whether to inform the claimant of the relevant fact and decided not to. So construed, section 32(1) (b) strikes a balance between the interests of the claimant and the defendant, as Parliament intended. If the defendant has concealed a fact from the claimant, and has done so deliberately, that is to say knowingly, then he has the means to start the limitation period running by disclosing the fact. If he does not do so, but chooses to keep the claimant in ignorance of a fact which she requires to know in order to plead her claim, then it is just that the defendant should be deprived of a limitation defence. As Lord Millett observed in Cave, para 8, if the defendant is not sued earlier, he has only himself to blame.”

143. Accordingly, as regards s32(1) (b): “[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.”

144. As regards “mistake” under s32(1) (c) Limitation Act 1980 , the leading authority is Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] UKSC 19 (the “FII Group Litigation”). The judgments in that case affirmed the decision in Phillips-Higgins v Harper that s32(1) (c) applies only where mistake is an essential element of the cause of action.

145. It suffices to set out 5 paragraphs from the judgments in question.

146. Paragraphs [48] and [62] of the judgment of Lord Walker in the FII Group Litigation case are as follows: “[ 48] For present purposes the crucial passage [in Phillips-Higgins v Harper [1954] 1 QB 411 ] is earlier on p 418. It is part of the passage quoted by the Court of Appeal, but it bears repetition: “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.” All these are examples of relief which removes or mitigates the adverse consequences to the claimant of the mistake, while respecting the position of the defendant where justice so requires (for instance by the defence of change of position where money has been paid under a mistake, or the requirement for restitutio in integrum where rescission is granted). It is an important but still relatively narrow category of causes of action, and much narrower than that for which Mr Rabinowitz has contended. [62] Having considered the matter with the benefit of much fuller argument than in DMG I have reached the clear conclusion that Phillips-Higgins v Harper was Rightly decided, and that we should not seek to develop the law by broadening the interpretation of “an action for relief from the consequences of a mistake.” My reasons are essentially the same as the Court of Appeal’s. In summary, as to the statutory language, I agree with Pearson J’s view that the words have been carefully chosen, and are more precise than some formula such as “based” or “founded” on a mistake. That is an imprecise formula, and legal scholars seem to take different views as to whether it would provide a wider or a narrower test than the words of the statute. As to history, the authorities are rather short on clear exposition of the relevant principles of equity, but on the whole they provide little support for Mr Rabinowitz’s thesis. Their clearest message is the close analogy between the equitable jurisdiction and the common law action to recover money paid under a mistake.”

147. Lord Sumption dealt with the point as follows: “[ 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 on section 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” (p 418). He gave as examples an action for the restitution of money paid in consequence of a mistake; or for the rescission or rectification of a contract on the grounds of mistake; or an action to reopen accounts settled in consequence of a mistake. Mrs. Phillips-Higgins’s alleged mistake had no consequences relevant to her cause of action. Its only consequence was that because she was unaware that she had a cause of action she missed the limitation period. “But that is not sufficient”, said Pearson J; “Probably provision (c) applies only where the mistake is an essential ingredient of the cause of action, so that the statement of claim sets out, or should set out the mistake and its consequences and pray for relief from those consequences” (p 419). It is fair to say about this reasoning that Mrs. Phillips-Higgins would have failed even on Mr Rabinowitz’s construction of the Act , because the mistake that she alleged was not the cause of the factual situation which she relied on for her claim. It only explained why she had allowed so long to pass before bringing her action. But what matters for present purposes is that her argument failed because her action was an action for relief from a breach of contract, to which the fact that she was mistaken was legally irrelevant. As Pearson J went on to point out, “No doubt it was intended to be a narrow provision, because any wider provision would have opened too wide a door of escape from the general principle of limitation.” [184] I think that it is difficult to fault Pearson J’s succinct and principled analysis of the point. Section 32(1) (c) refers to a type of action and a type of relief. They are assumed to be organically related to the relevant mistake. But if the Test Claimants are right, there is no organic connection, but only an adventitious one. The result would be a state of the law that would operate quite arbitrarily. Some Woolwich Equitable claims would benefit from the extended limitation period while others would not, depending on whether the underlying facts arose from a mistake. I can see no principled ground for making such a distinction in a context where the mistake has no bearing on the nature of the action or the relief claimed.”

148. Lord Hope agreed with Lord Walker and Lord Sumption (at [10]); as did Lord Brown (at [121]); Lord Clarke (at [126]) and Lord Dyson (at [141]). (b) Res judicata/abuse of process

149. I do not need at this stage to get into the subtleties of the distinction between cause of action estoppel and issue estoppel. The general principle is clearly set out in Phipson on Evidence (20 th Edn, 2022) at paragraph 43-23: “ 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.”

150. The first issue is whether the determination of a financial services ombudsman, undertaking an inquisitorial process, and not being a “court” can give rise to an application of the res judicata principles. Mr Karim, as I understood it, did not challenge or dissent from the proposition that it can. I accept Mr Steadman’s submissions that this follows from Westminster City Council v Heywood (no 2) [2000] Pens LR 235 at paragraph [20]. That was a statutory scheme where relevant complaints had to be placed to the ombudsman but where there was then a right of appeal to the courts (as in the case of the Irish legislation in this case). Absent an appeal the decision was made final and binding and as enforceable as it were a judgment of a court.

151. In this case, the parties were not obliged to remit the dispute to the Irish Ombudsman. English, not Irish law, applied. However, the parties clearly agreed to submit the dispute to the Irish Ombudsman and the voluntary submission of the dispute to the Ombudsman’s jurisdiction, under Irish law, means, in my judgment, that the principles of res judicata will apply to the ombudsman’s determination (as will the Irish law statutory provisions regarding challenging the ombudsman’s determination). Although no letter is in evidence from Mr Dewji submitting to the ombudsman’s jurisdiction, it is clear that he must have agreed to do so otherwise the Ombudsman would not have proceeded. Given the voluntary submission, the position is for these purposes the same as an agreement to submit to arbitration and a resulting arbitration award. It is not therefore necessary to resort to the concept that foreign determinations, akin to English determinations which give rise to res judicata, will similarly be capable of giving rise to res judicata principles (see e.g. Dicey, Morris & Collins on the Conflict of Laws (16 th Edn., 2022) at [14-031]. However, if I am wrong on the agreed submission point then clearly that principle will apply.

152. As regards the Ombudsman’s determination, he did not consider any alleged complaints going back more than 6 years from the referral to him. However, he did determine: (a) that as a matter of contract, the policy charges (including the loading) were correct during the preceding 6 years and that the loading applied going ahead; and (b) that the review had been carried out correctly. Much was made by Mr Karim of the fact that the Ombudsman was told that the loading was for medical rather than travel reasons. For present purposes it suffices to say that the Ombudsman was not considering the reasons for the loading and the position back in 2000. He was solely considering whether the loading was contractually binding and concluded (implicitly) that it was.

153. I turn now to consider the various causes of action asserted. The taking out of the Policy in 2000

154. The causes of action revolve around two separate complaints: first that waiver of premium was not granted when it should have been (nor was that properly explained) and secondly that the policy had a premium loading applied which it should not have been (which again was not properly explained).

155. As regards waiver of premium, the reasons for refusing to offer waiver of premium cover was not, in my judgment, made clear at the time. Similarly, the reasons for a policy loading were not explained at the time.

156. So far as s32 Limitation Act 1980 is concerned, Mr Steadman said that Mr Dewji does not have an arguable case with a real prospect of success either to show concealment or to show deliberate concealment on these two points. I am not with him on these points (at least so far as an argument to the contrary with a real prospect of success is concerned). It seems to me that the reasons were concealed within the description given to that term by the judgments in the Canada Square case and that it is clearly arguable that the decision not to reveal the same was deliberate, either as a matter of policy or in this particular case. That leaves the question of whether the two matters are “facts relevant to” a cause of action pleaded and, even if they are arguably so relevant, when they became known or could with reasonable diligence have become known to Mr Dewji.

157. As regards the waiver of premium, the absence of waiver of premium as a benefit was expressly agreed to in writing by Mr Dewji at the time. His agreement is said to have been a result of a misunderstanding on his part that this was a requirement imposed on all retail customers in his position. However, this does not demonstrate a breach of contract nor does it bring into play s32(1) (c) (the mistake ground) in relation to an alleged breach of contract claim (see paragraph 20).

158. It is pleaded that “removal” of waiver of premium was a breach of clause 8.3(3) of the relevant terms and conditions. However, such benefit was not “removed” after the policy had been offered and accepted. It was a term of the offer that the policy would not contain such cover. A breach of clause 8.3 simply does not arise.

159. However, even if I am wrong on this point, it cannot be said that Mr Dewji was not capable of identifying the alleged “breach” back in 2000. Leaving aside deliberate concealment, under s32(1) (c) he either (a) knew (or must be taken to know) the relevant terms of the policy and that his travel did not fall within the requirements of clause 8.3 and that travel was why such benefit was “removed” or (b) knew that waiver of premium cover had been “removed”, that there was (according to him) no good reason for that and accordingly he knew all material facts to be able to plead his case. His case is simply that there was no good reason to remove waiver of premium cover. Accordingly, I consider that the non-disclosure of the fact that waiver of premium was due to his travel patterns is not a fact relevant to his cause of action. Rather it is a reply point to any defence that it was justified by reason of his travel pattern.

160. Further, and if necessary, I would also hold that there is no real prospect of Mr Dewji being able to show at trial that if, contrary to my view, the fact that the cover was not offered because of his travel patterns is a fact relevant to his cause of action, that he would not without reasonable diligence have discovered that fact in 2000. He knew (and agreed) to there being no waiver of premium cover. He could have asked the reason for that stipulation.

161. It follows that the breaches of contract referred to in paragraphs 21 and 22 have no real prospect of success.

162. It is pleaded that in 2000 a medical loading was wrongly applied to his policy. It is unclear which term of the contract he said was broken as the loading was part of the term of the policy offered and accepted. As regards the loading: (1) In fact it is clear from the documents that the loading was a travel loading and not a medical loading (see below). (2) The fact of there being a loading was clear from the special provisions. I do not accept that there is a real prospect of success of a case (factual or of mixed fact and law) that (a) he did not receive the special provisions or that (b) he was not aware of the special provisions given the covering letter sent to his IFA enclosing the policy documents and the terms of the Policy Schedules referring in terms to the Special Provisions. If I am wrong about that, he could with reasonable diligence have discovered that there was a loading and what it was because the policy schedules and the covering letter sent to his IFA that I have referred to themselves in terms refer to special provisions. (3) Given that his case is that no loading was justified, the question of whether Prudential was purportedly imposing the loading on medical (or other) grounds was not a fact relevant to his cause of action within s32(1) (b) of Limitation Act 1980 . Further or alternatively, he could have with reasonable diligence discovered the reason for the loading. Accordingly, s32(1) (b) Limitation Act would not assist in extending the start of the limitation period from running in 2000. (4) Even if I am incorrect with regards to my conclusions in (2), Mr Dewji did know about the loading by, at the latest, the time of the Irish Ombudsman’s determination in 2013 (in terms of rate and that it applied throughout the policy). As the reason for the loading was then given as medical grounds, there was on any view no relevant fact within s32(1) (b) that he did not know about his cause of action and so that section would not assist in extending the start of the limitation period beyond 2013. (5) On any view therefore by 2013 he knew all facts relevant to his cause of action and the claim for breach of contract in this respect was barred sometime in 2019 and before these proceedings were issued in July 2023. (6) There is no real prospect of success of a claim that Prudential in breach of contract applied a loading to the Policy (and that they did so for medical reasons) as pleaded in paragraph 23 because such a claim is statute barred under the Limitation Act.

163. In the alternative (although not currently pleaded) if Mr Dewji’s case is that the loading was applied for travel reasons and that this was a breach of contract: (1) The fact of there being a loading was clear from the special provisions. I do not accept that there is a real prospect of success of a case (factual or of mixed fact and law) that (a) he did not receive the special provisions or that (b) he was not aware of the special provisions given the covering letter sent to his IFA enclosing the policy documents and the terms of the Policy Schedules referring in terms to the Special Provisions. If I am wrong about that, he could with reasonable diligence have discovered that the policy was loaded. (2) Once he was aware or should have been aware (exercising reasonable diligence) that the Policy was loaded (as he was, see (1)), then: a. The fact that the loading resulted from travel considerations was not a relevant fact within s32(1) (b) because his complaint was that there was no justifiable reason for applying a loading (whether for medical or travel reasons); b. alternatively, with reasonable diligence he could have discovered the loading was imposed for travel related reasons. On either basis, s32(1) (b) would not extend the start of the running of the limitation period. (3) Accordingly, there is no real prospect of success of a claim that Prudential in breach of contract applied a loading to the Policy (and that they did so for travel reasons) because such a claim is statute barred under the Limitation Act. There is accordingly no reason to allow an amendment to the pleading so that this claim can be made.

164. As regards the charges and other matters the subject of paragraph 25, as I understand it these all flow from the alleged improper loading applied to the Plan. Further, and in any event, those matters are the subject of res judicata at least going back 6 years from the determination of the Ombudsman in 2013 and going forward from that determination.

165. So far as alleged breaches of COBS rules are concerned (paragraphs 27 and 28), the relevant breaches all revolve around a failure properly and fully to explain the waiver or premium position and/or Plan premium loadings or, by reason of having imposed those conditions, failing to act in Mr Dewji’s best interests. Again, these matters are, in my judgment, all statute barred. First, I hold that these matters were known to him or could have been discovered by him with reasonable diligence at the time of taking out the Plan in 2000. If I am incorrect on that point, then by the time of the Ombudsman’s decision he knew or with reasonable diligence could have found out any relevant facts and matters that he did not know or could not with reasonable diligence have found out in 2000 and the limitation period would have expired before the bringing of the current proceedings.

166. So far as the alleged negligence claims are concerned (leaving aside paragraph 35 dealing with a further alleged matter regarding what Prudential told him and the Ombudsman regarding the reason for the policy premia loading), the alleged breaches of duty mirror the factual breaches of contract and/or of COBS rules in relation to which I have found that complaints as to the conduct of Prudential in 2000 are now statute barred. It follows that paragraphs 29 to 36 (with the exception of paragraph 35) are statute barred for the same reasons. 2013

167. The cause of action alleged in 2013 is in misrepresentation. At paragraph 35 it is alleged that Prudential misled the Ombudsman by providing him with false and misleading information that the discrepancies between Mr Dewji’s plan and those of his wife and brothers was due to a “medical loading”. This is said to have been admitted to being incorrect in about August 2021 (see also paragraph 47(c)). This is said to have caused Mr Dewji to experience further delay and to have protracted losses. The losses identified (in paragraphs 36 and 37) are: (a) the difference between the underwriting charges between Mr Dewji’s plan and that of his younger brother up to March 2022; (b) the difference between the average of life cover charges for Mr Dewji’s brothers and that of Mr Dewji up to March 2022; and (c) the accumulation of the amounts in (a) and (b) at the respective fund unit growth rates over the period 2000-2024. The estimated loss is not less than £96,236.

168. Assuming the misrepresentation is made out, Mr Steadman says that the causal loss is not begun to be made out and that accordingly there is no prospect of success of the pleaded claim in misrepresentation (causal loss being an essential element of a cause of action in negligent misrepresentation). The losses pleaded are losses flowing from the loading being applied to the Plan from inception of the Plan. It is difficult to see how such losses can be causal loss flowing from a 2013 misrepresentation (which, in context, would require reasonable reliance by Mr Dewji on the misrepresentation in 2012/2013 causing him loss if a claim is to be established). No specific reliance on the representation is pleaded. Indeed, as from 2013, Mr Dewji knew that there was a loading to the Plan and continued to pay the increased premia. He says that he thought that the loading was medical (though asserted by him to be unjustified) but did nothing about this.

169. In my judgment, there is no real prospect of success regarding the claim in misrepresentation as pleaded. 2021

170. The Re-amended Particulars of Claim also assert a cause of action based upon an alleged application, with retrospective effect, of a travel loading to the Plan, in breach of contract (see paragraph 24). However, the contemporaneous evidence shows clearly that the loading was applied for travel related reasons and not for medical reasons.

171. As regards this, a case of falsely created documents (the underwriting notes) has been asserted, backed up, it is said, by the consistent version of events put forward by Prudential, until about August 2021, that the Plan had been loaded for medical not travel reasons as well as certain Prudential internal notes commenting upon the position. In particular, in correspondence it was suggested that the underwriting notes should be produced, the assertion being that they had not been produced and did not exist. The underwriting notes were subsequently produced in September 2023. I am not aware that any steps have been taken to inspect the originals or check their authenticity (or that access has been refused).

172. In my judgment, the claim that Prudential imposed a loading with retrospective effect on travel grounds has no real prospect of success. Even Mr Dewji’s case as put in argument before me and based on the documents amounts, at most, to a case that a loading was applied in 2000 but that the reasons given as to why it was imposed have changed, not that a loading was imposed for one reason, then removed, then re-imposed for a new reason.

173. That in 2000 a loading was applied as a term of the Plan is confirmed by the contemporaneous documentation. It is also separately established by the decision of the Ombudsman, which binds the parties.

174. Accordingly, I consider that the case that a new loading was applied in 2021 with retrospective effect has no real prospect of success (paragraph 24). Conclusion

175. In my judgment the appeal succeeds on the basis that the learned Judge incorrectly applied the test for summary judgment/strike out to the facts and evidence placed before him. The issues that he identified in paragraph 12 of his judgment were issues upon which answers can be given with sufficient confidence. The claims based on what happened in 2000 are primarily barred by reason of limitation. The claim based on the alleged misrepresentation in 2013, fails to identify any reasonable reliance or causal loss. The claim that in 2021 loading was applied is incorrect. The reason given for the loading changed in 2021, but the loading had been there from inception.

176. It follows that the claim should be struck out and judgment entered for the Claimant. Form of Order

177. In handing down this judgment in draft I invited the parties to seek to agree a Minute of Order to give effect to my judgment. That process resulted in a number of issues on which the parties could not agree but which Counsel invited me to deal with on the papers in the light of their further submissions helpfully set out in emails to me.

178. The first issue is as to the incidence of costs. Mr Karim formally asks, on behalf of his client, that the court adjudicate on the principle of the incidence of costs.

179. As regards the costs of and incidental to the appeal itself, there seems to me no reason why costs should not follow the event in the usual way. Mr Karim does not identify any reason why such order should not be made and accordingly I make it. I note that Prudential only succeeded on two of the four grounds of appeal but those two grounds took up little time and were not decisive as determined either way. The fact that a party does not win on all issues that they have raised does not mean that they should not obtain an order for all their costs and on the facts of this case, I consider that, as I have said, costs should follow the event.

180. As regards the costs below, Mr Karim submits that there was no order made as to the costs by Mr Recorder Kelly KC and that it would be procedurally improper for any order now to encompass the costs incurred below, especially when the claimant was successful at that hearing.

181. As pointed out by Mr Steadman, the Judge below reserved the relevant costs.

182. In my judgment the order below should be set aside in its entirety, including the costs element. Even if it was not so set aside, the effect would be that the costs of the proceedings would be paid by Mr Dewji because the costs would, unless further considered, be costs in the case and the result of my judgment is that that the case has ended in judgment for the Defendant.

183. However, considering the matter afresh, both the costs of the hearing below and the proceedings themselves should, in my judgment, be paid by Mr Dewji and I so order. As regards the costs of the proceedings, the follows from the general principle that the costs follow the event. As regards the hearing below, although Mr Dewji won on that hearing, the decision then made has been found by me to be wrong. There are in my judgment no special factors that would make it appropriate that Mr Dewji receive the costs of the hearing below or that there be no order as to costs. Accordingly, I order that Mr Dewji pay the costs of the proceedings, including for the avoidance of doubt, the costs of the hearing before Mr Recorder Kelly KC.

184. The next issue is as to the basis of assessment. Mr Steadman relies upon offers made by Prudential in the course of the litigation which are not CPR Part 36 offers (see CPR r44.2(4)). The offers in question were made on 2 April 2024 when, having made its strike out application, Prudential offered to pay £5,016.80 (then then value of his pleaded claim) and on 30 September 2025, when Prudential offered to pay £10,500 to Mr Dewji. Mr Steadman submits that costs should be ordered on the indemnity basis either in whole or after either of the two dates in question.

185. Mr Karim says that there is no relevant conduct of Mr Dewji taking the case out of the norm, the costs offers were not Part 36 offers to which indemnity assessment rules are capable of applying, that the hearing before the Recorder was reasonable and that the second offer was very late in the day.

186. In my judgment, there is nothing taking this case out of the norm. The first offer, as an offer giving everything that Mr Dewji was claiming, was overtaken by the Amended Particulars of Claim. The second offer was late in the day when large parts of the appeal costs had been, or would have expected to have been, incurred. It was not unreasonable to fight the appeal, as Mr Dewji had won at first instance. Accordingly, I order that costs will be awarded on the standard basis.

187. The next issue is one as to assessment. The parties have agreed that the costs should be assessed if not agreed rather than being subject to summary assessment by me. I agree that that is appropriate given that the costs of the hearing below probably cannot be assessed by me but that, even if they can, the costs of the proceedings will need to be assessed in any event.

188. It is accepted that a payment on account should be ordered but there is a dispute as to whether the sum to be ordered should be £20,000 or some lesser sum (possibly £10,000).

189. The appellant’s costs schedules before me indicate costs of £10,785 (counsel £10,500 and court fee £285) for the hearing before me and £26,841.75 (counsel: advice conference/documents: £11,841.67; counsel fee for hearing £15,000). Both these figures are ex vat. VAT is claimed on the costs schedule for the hearing before the Judge and no VAT is claimed on the costs schedule for the hearing before me. For present purposes I ignore any VAT claim. As regards solicitors’ costs, these were not claimed in the costs schedules but are said to be at least £10,000. This is an assertion not backed up by any certified costs schedule.

190. In my judgment the appropriate quantum of any payment on account is £20,000 as sought by Prudential and I so order. That sum is substantially below the costs claimed for counsel (and the court fee) alone and only just over 50% of that sum (53% or so).