BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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(1) JOHN WYLLIE (2) WYLLIE FINANCIAL SERVICES LIMITED (3) A ' SCOTTISH NEWS LIMITED |
Claimants |
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- and - |
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(1) DR SANDRADEE THERESA JOSEPH (2) MR DAVID FOREMAN (3) BAR MUTUAL INDEMNITY FUND |
Defendants |
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Scott Allen (instructed by Clyde & Co LLP) for the Defendants
Hearing date: 23 October 2024
Draft judgment circulated to parties: 13 January 2025
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Crown Copyright ©
Mr Justice Henshaw:
(A) | INTRODUCTION | 2 |
(B) | SERVICE OF THE APPLICATION | 3 |
(C) | BACKGROUND FACTS | 5 |
(1) The arrangements between the Claimants and Arc | 5 | |
(2) Cancellation of the policies | 6 | |
(3) The compensation claim made to the FSCS | 7 | |
(4) Application for judicial review of the FSCS's decision | 8 | |
(5) The Claimants' claim against Arc | 9 | |
(6) The retainer of the First Defendant and the Dias J decision | 12 | |
(7) The Defendants' position regarding the present proceedings | 14 | |
(D) | PRINCIPLES | 15 |
(E) | THE PARTICULARS OF CLAIM | 18 |
(F) | ANALYSIS | 23 |
(1) The Particulars of Claim | 23 | |
(2) The claim as a whole | 24 | |
(G) | CONCLUSIONS | 27 |
(A) INTRODUCTION
"In the light of Mr Wyllie's dyslexia, I am willing to give him until 12 noon on Friday 24 January 2025 to provide his suggested corrections.
However, I remind Mr Wyllie that what is requested is suggested "typographical corrections and other obvious errors". Circulation of the draft judgment is not an opportunity to provide "observations", to seek reconsideration, or otherwise to attempt to reargue the case. In addition, it is not strictly necessary for any application for permission to appeal to be made at the same time as providing suggested corrections. The application can be made in advance of or at the 'consequentials' hearing that will follow in the very near future."
(B) SERVICE OF THE APPLICATION
(C) BACKGROUND FACTS
(1) The arrangements between the Claimants and Arc
"launch(ed) the Your News platform into 195 countries, 44 dependency countries and 65,000 states, cities, towns, villages, hamlets, islands and streets, encompassing 3.2 billion residential and domestic addresses globally. This platform would provide a voice for the voiceless and eradicate misinformation, disinformation, and teen suicides and self-harm by 90%. Additionally [this] would have led to eradicating global fraud by 90% and supporting law enforcement at local, regional, national, global, and helicopter levels. Such an endeavour would revolutionise the media landscape, becoming the ultimate one-stop media authority and shop while upholding accountability for those in power, as and when required, while respecting local and international laws and cultures. This platform would serve as a beacon of education for the world, enlightening those who may be ignorant and unaware, fostering a safer, cleaner environment for future generations. Furthermore the claimants would have established funds to seed startup companies, charities and local philanthropic initiatives on a global scale, igniting a ripple effect of positivity and change across communities worldwide. They would have pursued their aspirations of acquiring target companies spanning various sectors, driving innovation and progress…"
(2) Cancellation of the policies
(3) The compensation claim made to the FSCS
"…FSCS is of the view that, irrespective of the basis on which [Arc] applied for these policies, they would still not have been valid. A business only has an insurable interest in the life of an employee if that employee is a "key" person. Not all employees can be "key". Further, on the information provided to FSCS, only one of the relevant individuals had actually started work at the time the application for their life insurance was submitted to the relevant insurer and the premium paid. On the evidence available, we consider that neither ASN nor WFS had an insurable interest in the lives of the relevant individuals."
(4) Application for judicial review of the FSCS's decision
"That leaves the third and broadest category of loss and damage relied on by the claimants. This was what I suggested was a category of 'expectation' loss. By that I mean the claimants have painted the picture of the income that would have been in place, and the insurance cover that would have been in place, had the policies been operative. The problem with that lies in the fact that the defendant has already lawfully concluded that these were not valid policies. Therefore, even if there were a duty to advise an act and assist the claimants in relation to taking appropriate steps, those steps could not logically possibly have involved the establishing of the set of 'expectations' as to income and cover on which reliance is placed. Ultimately, the defendant was not satisfied that there was any loss or damage in relation to income or cover that had been sustained, even if some duty had been breached. The defendant emphasised that no "insured act" had arisen in relation to any of these individuals or policies, except for the death of Mr McCallum with which I have already dealt."
(5) The Claimants' claim against Arc
"8. Following the introduction of the third claimant by the second claimant to Arc, Arc applied for various forms of insurance policies, including principally life policies on the lives of individuals who were ostensibly employees mainly of the third claimant. The beneficiary of the policies was intended to be the third claimant. A feature of the presentation was that the claimant sought life insurance on a so-called "key man" basis for all the third claimant's apparent employees and did so for very substantial sums.
9. Liberty's solicitor, Mr Briggs, says …, and Mr Wyllie does not dispute, that he intended to fund the set up costs of the third claimant on the basis of the commissions paid to the first and/or second claimant under the arrangements set out above. Aside from the treatment of all employees of the second claimant as "key" employees, multiple applications for cover were made on behalf of the second claimant in respect of the same employees. The effect of this was in some cases to generate multiple commissions in respect of the same employee. I should make clear that it was said by Arc's directors that some or all of these events were the result of processing errors on the part of Arc.
10. It is now necessary I say something about insurable interest under life policies. Although regarded by some commentators at least as outmoded, the issue is one that remains governed by the Life Assurance Act 1774, section 1 of which provides that:
"… no business shall be made by any person… on the life or lives of any person or persons… wherein the person… on whose account such policy… shall be made shall have no interest…"
11. Although Mr Wyllie maintained in the course of his submissions that there was some mystery around the degree to which an employer might have an interest in the life of an employee which justified insuring employees for substantial sums, in my judgment that is wrong. An employer has an insurable interest in the life of his employee to the extent of the value of the employee's services during such time as he is under a legal obligation to serve his employer - see MacGillivray on Insurance Law (15th edn) at paragraph 1-071, the Scottish cases of Simcock v Scottish Imperial Insurance [1902] 10 SLT 286 at 288 and Turnbull v Scottish Provident Institution [1896] 34 SLR 146 and by analogy Hebdon v West [1863] 3 B&S 559, which concerned the insurable interest an employee had in the life of an employer.
12. It follows that an employer has no insurable interest in the life of an employee beyond the value of the services which can be provided by that employee in the notice period leading to the termination of any contract of employment. It follows, for example, that if someone is employed and has a notice period of one week, that will, at any rate, provide a strong prima facie guide as to what the insurable interest in that employee is. Although this might be thought inconsistent with modern business practice, it is difficult to see how a different result can be achieved as long as the 1774 Act applies - see MacGillivray ibid at paragraph 1-072."
"32. What was required in relation to each claimant separately was to set out: (1) whether the claim was brought under a contract or for breach of a tortious duty; (2) to plead the contract or facts and matters said to give rise to the duty relied upon; (3) in each case the facts and matters said to constitute a breach of whatever contractual or other duty was relied upon; (4) how the alleged breaches allegedly caused whatever loss it is alleged the relevant claimant has suffered; and (5) in each case a properly particularised summary of the loss and damage which is alleged has been caused to the relevant claimant by the alleged breach of contract or duty relied on. No attempt has been made to address any of these basic points.
33. In those circumstances, the pleading fails to achieve its primary purpose which is to inform the defendant of the case it must meet - see King v Steifel [2021] EWHC 1045 (Comm) per Cockerill J at 145. In consequence, it fails also to achieve the secondary purpose of a pleading, which is to ensure the parties can properly prepare for trial and avoid incurring unnecessary costs - see King v Steifel ibid at 146. The result of the claimants' approach to the pleading has been to defeat also the tertiary purpose of the pleading, which is to act as a checklist for the pleader to ensure that each claimant has pleaded a complete cause of action. If the pleading focuses only on the essential facts and addresses them in the order that I have set them out above, then that purpose will be achieved. Plainly it has not been here for the reasons I have attempted to summarise.
34. Mr Wyllie has set out in the pleading a summary of the effect which dyslexia has had on him. I understand the difficulty and I hope I have taken that into account when considering the allegations of prolixity and discursiveness made by Liberty. However, the point is not so much that what is set out is prolix and discursive, but that it is either irrelevant or fails to set out coherently each cause of action that each claimant asserts against Arc, and therefore Liberty, and therefore fails to inform Liberty of the case it must meet and therefore prevents it from identifying answers it has to deploy if it is to defend the claim and the evidence it has to adduce if it is to defend the claims made against it.
35. All these factors lead me to conclude that the particulars of claim as a whole must be struck out under CPR rule 3.4(2)(b) . It must also be struck out under CPR rule 3.4(2)(c) because the particulars of claim as drawn do not constitute a concise statement of the facts on which the claimant relies contrary to CPR rule 16.4 . The real issue that remains is whether the claim should also be dismissed. That depends on Liberty's case that not merely should the pleading be struck out on the grounds so far considered but should also be struck out on the basis that the claimants have no realistically arguable claim available to them, however these claims might be pleaded."
i) The maximum value of the claim for commission owed but not paid by Arc was £160,508, and it was clear that more than this sum (around £462,000) was owed back to Arc by way of clawback. However, it was possible that, because the three Claimants were different entities with different entitlements to the commission, that one of them might be owed more by Arc than was owed back to Arc by way of clawback. The Claimants should therefore be given an opportunity to plead out their individual entitlements to see if there was a sustainable claim by one or more of them (§§ 37 to 39).
ii) In respect of the claim for the insurance payout that was not received on the death of Mr McCallum, the judge said "I am satisfied that on the information currently available that claim is entirely irrecoverable", as there was nothing to suggest that WFS could have had an insurable interest in Mr McCallum's life of anything like the £7.25 million claimed, and nothing to suggest that insurance in that sum or anything like it could ever have been obtained by WFS (§ 40).
iii) In respect of the claim for future commissions, it was inherently improbable that sums of the sort referred to in the Particulars of Claim could ever have become payable to any of the Claimants, and the claim for the policy benefits assumed that all employees would die while in the service of WFS and ASN (§ 41).
iv) If the Claimants could show that they were actionably misled by Arc into thinking that insurance could be achieved as per the scheme which was entered into, then it might be that in principle the Claimants could recover expenditure which they had wasted in reliance upon this advice, which might include items of the type set out at paragraphs 69(10) to 69(23) of the Particulars of Claim before HHJ Pelling.
(6) The retainer of the First Defendant and the Dias J decision
"62. … HHJ Pelling concluded at paragraph 40 of his judgment that the claim was entirely irrecoverable. He assumed in the Claimants' favour that Mr McCallum was indeed employed by the Second Claimant at £300,000 per annum as a business consultant (itself open to some doubt given his previous career as a professional wrestler) but even so held there was no pleaded basis for asserting that the Second Claimant had an interest in his life to the extent of £7.25 million, even as a keyman. Moreover, as he pointed out, the policies on Mr McCallum's life were all cancelled more than 12 months before his death. The Claimants had said that it was impossible to take out alternative insurance because they had been blacklisted as a result of AIG's concerns. However, even if that were true, they would have needed to plead (i) that they could have secured alternative cover if there had been no blacklisting and (ii) the amount of cover that could have been procured.
63. Regrettably, the new Particulars of Claim do nothing to address this point. Instead, they plead that insurable interest only has to exist at the date of inception of the policy. This is not in dispute. But if there is no insurable interest at all, then the date at which it must exist hardly matters.
64. This claim has therefore not advanced since its previous iteration and remains as misconceived now as it was previously." (§§ 62-64)
"65. This claim relates to more than £71 billion in commissions and payouts that the Claimants anticipated receiving on policies to be written in the future. HHJ Pelling considered it wholly improbable that sums of this magnitude would ever become payable and I agree. The pleading suggests that the Claimants expected to take out policies on the lives of a further 6000 employees of the Third Claimant. However, the Third Claimant had only been incorporated in November 2017 and while Mr Wyllie no doubt hoped that its business would grow, it is completely speculative that it would have grown to anything like this extent. Quite apart from anything else, it would almost certainly have been severely affected by the Covid pandemic. Further, as the judge pointed out, the claim assumes that every life assured would have died within the life of the policy, which itself is inherently improbable. Finally, the new Particulars of Claim simply replead the original claim in identical terms without any attempt to set out the basis on which the figures claimed have been calculated."
(7) The Defendants' position regarding the present proceedings
"This offer was made on the basis that if the First Defendant had advised the Claimants that there was no sustainable claim to be put forward on the information provided to her, and that advice was accepted, the costs of the strike out application could have been avoided."
"The only case advanced is that the First Defendant should have produced a pleading which set out a sustainable case against Arc. I am not however able to understand from the Particulars of Claim how it is said that the First Defendant should have pleaded a sustainable claim against Arc, i.e. what causes of action it is said she should have pleaded or pursuant to which factual allegations, what loss and damage it should have been alleged had been caused to the Claimants by Arc, or what factual material or instructions provided to the First Defendant it is said that she should have based any such pleading upon."
He deposes that he does not believe there to be any reason to expect that the Claimants – who are aware from the judgments of HHJ Pelling KC and Dias J of what has to be produced in order to set out a sustainable claim – could produce a sustainable claim if they were to be given another opportunity to do so. As to whether they should be given such an opportunity, Mr Preece states that there would be the following implications:
"59. … very significant costs would likely have to be incurred to consider and respond to a further lengthy document (and its inevitable multitude of attachments) and in making a further application to strike out; further court time would then have to be devoted to the hearing of that application, and to litigants who have already taken up a significant amount of that resource. There is a real question mark about whether my clients would be able to recover any further expenditure, as the Claimants are – according to Mr Wyllie – of extremely limited means and unable to meet any costs orders made against them. In that regard, we have investigated the financial position of the Second and Third Claimants and they do appear to be of very limited means. If the Court does not agree to strike out the claims at this stage, then, depending on the outcome of further enquiries, we are likely to be instructed to apply for security for costs in due course.
60. Further, I did give the Claimants fair warning in correspondence that the Particulars of Claim were not adequate, and that a strike out application would be made if they were maintained in their current form …; Mr Wyllie's response on behalf of the Claimants was to threaten to bring unspecified claims against further members of the Bar and to issue an explicit personal threat against me and my clients …, although Mr Wyllie has now sought to explain those threats were not of a personal nature …. I respectfully suggest that this is not the sort of behaviour and conduct which should be rewarded by the court allowing the Claimants a further opportunity to attempt to formulate a claim against the First Defendant. …"
(D) PRINCIPLES
"(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate."
"Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognisable claim or defence… Ground (c) covers cases where the abuse lies not in the statement of case itself but in the way the claim or defence (as the case may be) has been conducted. The strike-out can be made even where there was nothing in the rule, practice direction or court order breached which specified that this might happen as a consequence of breach."
and:
"An unreasonably vague and incoherent statement of case which is likely to obstruct the just disposal of the case is liable to be struck out: see Ashraf v Dominic Lester Solicitors [2023] EWHC 2800 Ch (Smith J) at [71] (see too [72] in respect of inconsistent cases). As Teare J observed in Towler v Wills [2010] EWHC 1209 (Comm) at [18]:
"The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party's pleaded case is a concise and clear statement of the facts on which he relies…""
i) to enable the other side to know the case it has to meet;
ii) to ensure that the parties can properly prepare for trial without the expenditure of unnecessary time and costs on points which are not in issue or which lead nowhere; and
iii) to operate as a critical audit for the pleading party and its legal team that it has a complete cause of action or defence as the case may be.
"Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend (In Soo Kim v Youg [2011] EWHC 1781 (QB))."
In Soo Kim was a case where the defect in the particulars of claim – in a libel case – was a failure to plead proper particulars about to whom the allegedly defamatory article was published. After the strike out hearing but before judgment was given, the claimant told the judge that he could name the persons to whom the articles were published, and provided 13 witness statements to this effect, but the Master declined to look at them, and struck out the claim. On appeal, Tugendhat J held that the Master should have taken account of the additional evidence and should have given the claimant a chance to remedy the defect in his pleading by setting out details of publication. There was thus, in that case, a very clear reason for believing that the defect in the statement of case could be remedied.
i) whether the party can amend or replead the claim so as to plead a sustainable case (and one which is consistent with the averments of fact made in the existing pleading: CPR PD 16 §§ 9.2 indicates that a subsequent statement of case cannot contradict or be inconsistent with an earlier one; see also Ashraf § 77);
ii) whether it is proportionate to the quantum of the potential claim to allow the claimant a further attempt at pleading the case;
iii) what amount of court resources has the claimant absorbed to date in respect of the matters in question, what further court resources would likely be consumed if an attempt were made at repleading, and whether it would be an appropriate allocation of the court's resources;
iv) what prejudice the defendant would suffer if the claimant were allowed a further attempt at pleading the case (including whether the claimant is able to meet any costs orders brought against them); and
v) whether the claimant's conduct renders it just to allow them a further attempt at pleading the case.
(E) THE PARTICULARS OF CLAIM
"[Dr Joseph] egregiously neglected to include essential claims for ("the claimants") in her inadequate particulars of claim, such as negligent misstatement, estoppel due to AIG blacklisting, and aggravated damages. This failure not only fell short of legal standards but also disregarded FCA regulations for fair treatment of customers. Consequently, countless individuals are left with worthless insurance policies, facing significant financial harm without any accountability. (This is perversion on steroids)" (emphasis in original)
However, the basis on which it is said that those claims should have been formulated or could be made out is left unspecified. Similarly, paragraph 88 alleges that:
"[Dr Joseph] egregiously neglected to adequately plead that all ''invalid'' life, critical illness, income protection and medical insurance policies sold to (''the claimants'') were sold on an advised and arranged basis in accordance with ICOBS 5.3, 5.3.1, 5.3.2."
However, no explanation is given as to how that could translate into a claim against Arc/Liberty for loss of the benefits which the Claimants claim they would have realised from the policies (including commissions and claim payments).
"Negligent act/omission nineteen: (''Dr. Sandy'') egregiously neglected to adequately plead facts and law on insurable interest or lack thereof, incorporating the ruling of Lady Justice Carr (now Lady Chief Justice Carr of England and Wales), where it was found in her judgment that life, critical illness, income protection, and medical insurance policies (referred to as "pure protection policies") Claim No. CL-2024-000085 were invalidated due to the absence of insurable interest. Furthermore, (''Dr. Sandy'') failed to plead the FCA compensation limits at 10.2.3, section (4) where the claim is in respect of: (a) a relevant omission; and (b) a pure protection contract, or would be in respect of a pure protection contract if the insurance contract had been effected: 100% of claim which states that in cases concerning a relevant omission and a pure protection contract, or would-be pure protection contract, the compensation is 100% of the claim with ''unlimited compensation' 'payable to (''the claimants''). This neglect to set out every conceivable scenario encompassed a wide spectrum, covering all aspects of (''the claimants'') claim, including individuals, employees https://pdf.ac/PRI6F, secured employees - https://pdf.ac/PRI6F with allocated start dates and deferred start dates with shaped and/or executed contracts (a common practice among insurers), covering 6000 prospective employees in a scale-up operation, employers, trustees, children, adopted children, beneficiaries, executors of estates, directors, managers, officers, (every rank and paygrade within a business), individuals of diverse racial and sexual orientations (Black, White, Asian, Heterosexual, Bisexual, LGBTQI), man, woman, non-binary, transgender, advised sale personal and business customers, Appointed Representatives, Introducer Appointed Representatives and Keyman/person. In short, every citizen in Great Britain, irrespective of rank or position in society (binding the full cross-section of society), has had their life declared ''invalid'', akin to worthless for lack of insurable interest in a life, Critical Illness, Income Protection and Medical insurance. In summary, this represents an affront to justice, the judiciary, the crown operating system, legislators, adjudicators, banks, insurers, FSCS, 90,000 FCA regulated advisory firms - brokers/intermediaries, MPs, MSPs, MLA's, MSs, ASs, UK Lords, and all legal representatives in Great Britain and other Crown dependencies. This is further exacerbated by the fact that much of the system and interconnected systems have/are publicly funded, by the taxpayer, making an utter mockery out of the institutions in question." (emphasis in original)
In my view, that plea is incomprehensible.
"[Dr Joseph] negligently failed to include (''the claimants'') submissions regarding why the defendants' baseless allegations concerning the premium claim should be offset against commissions received." (§ 102)
"[Dr Joseph] negligently failed to particularise consumer protections owed to (''the claimants'') and all breaches of duties by Arc Financial Group Ltd, including duties independent of contract, duties to third parties, duties to insurers, duties to disclose, tortious duties, skill and care as outlined in Jackson and Powell, ninth edition…" (§ 106)
"[Dr Joseph] negligently failed to plead all grounds, why (''the claimants'') premium claim of £157,168.67 should not be offset against received commissions of £688,000.000, effectively dismantling the former defendants' proposed legal submission." (§ 111)
None of those paragraphs actually formulates or identifies the basis of any tangible claim against Arc/Liberty.
"174. Estoppel act/omission one: (''Dr. Sandy'') negligently failed to identify and plead estoppel within her professionally drafted particulars of claim, pertaining to (''the claimants'') underlying claim, which have subsequently been found and acknowledged to be manifestly deficient, embarrassed, and non-compliant. This omission includes the purported blacklisting of Arc Finance Group Ltd and (''the claimants'') by AIG, thus, breaching the 5-year superseded commercial agreement between (''the claimants'') and Liberty Mutual Insurance Europe Ltd, formerly Arc Finance Group Ltd (''Arc''). This breach prematurely terminated the contract after only 3 months into the 5-year term, scheduled to expire around 18 January 2023. Arc's directors stated, ''it doesn't matter if we have a commercial binding agreement in place,'' citing pressure from insurers' risk compliance departments, despite the broker's absolute obligation to procure life, critical illness, income protection and medical insurance policies for 6000 recruited and onboarded employees from 18 January 2018 to 18 January 2023, (pre insurers sales and business development teams approving (''the claimants'') business model ''floats and moats'', business proposal, and plans, duly signed off by (''Arc's'') internal, external audit compliance and legal advisors, as per the ratchet mechanism, and onboarding programme, with a premium of circa £2,000 per month, per employee, scheduled to generate £144,000,000.00 million over the five years, (for every £50 premium underwritten, (''the claimants'') achieved £40,000 gross commission, leaving (''the claimants'') £24,000 net commission) with an extended trail commission for an additional 35 years to whole of life. This situation contradicts the principles outlined in paragraph 16-055 on page 1174 of Jackson and Powell. Furthermore, (''Dr. Sandy'') failed to plead relevant case law regarding The Financial Services Compensation Scheme (FSCS) evaluations and submissions to the court, as indicated on page 1104, paragraph 14-142, Chapter 14 – ''Regulation of Financial Services''. Additionally, she omitted to identify and plead FSCS duties and obligations concerning the fulfilment/re-direction of insurance policies and contract requirements with insurers or reinsurers. (''Dr. Sandy'') neglected to include estoppel in relation to Judicial Review proceedings by not referencing Lord Leggatt's review of Lady Justice Carr's final order, particularly Section 54 of the Access to Justice Act 1999, which bars any appeal against the refusal of permission. (This is perversion on steroids)
175. Estoppel act/omission two: (''Dr. Sandy'') has once again created an estoppel situation, depriving her clients (''the claimants'') of the opportunity to pursue or defend proceedings. Despite HHJ Pelling KC granting (''the claimants'') a final chance to amend their particulars of claim, as per his sealed order dated 16 March 2023, the inadequate presentation of (''Dr. Sandy's'') non-compliant and manifestly deficient particulars of claim, as pleaded, along with Mrs. Justice Dias KC's refusal to allow (''the claimants''), another opportunity for the third time, to submit a professionally drafted particulars of claim, and further dismissed the case, and struck out (''the claimants'') professionally drafted particulars of claim, due to (''Dr Sandy's'') conduct and deficiencies within her pleadings, has left (''the claimants'') unable to recover the significant financial debts and losses owed to them, with no means to now rectify the situation.
176. Estoppel act/omission three: Legal time constraints prevent (''the claimants'') from suing Liberty Mutual Insurance Europe SE, Liberty Mutual Insurance SE, Liberty Mutual Insurance Europe Limited (''Liberty''), formerly Arc Finance Group Limited (''Arc''), affecting numerous individuals and businesses sold invalid insurance policies by Arc, rendering them worthless due to lack of insurable interest and now being time barred by statute. This contradicts FCA rules against forcing customers to change products or make claims. This blame falls on (''Dr. Sandy'') for negligence and manifestly deficient pleadings, as pleaded, hindering legal action. This injustice extends to a broad spectrum of policyholders, affecting all citizens regardless of social status, dating back to 1774. Such actions breach FCA fairness principles and legal broker duties."
"If [Dr Joseph] had fulfilled her agreed obligations and undertakings as outlined in the Barrister/Client care letter dated 23 March 2023, then [''the claimants"] would have secured the largest court award in history against the defendants, pertaining to their underlying claim."
(F) ANALYSIS
(1) The Particulars of Claim
(2) The claim as a whole
i) could and would have profited hugely from shares of commissions on the placement of insurances, even though such commission payments would over time inevitably have to be outweighed by premium payments by the Claimants' relevant employees, ultimately funded by the Claimants themselves;
ii) could and would have profited, again hugely, from claim payments arising from the death in service of (or other events pertaining to) their employees exceeding, on an aggregate basis, the necessary premium payments ultimately funded by the Claimants themselves;
iii) could have achieved this on a scale requiring individual employees to be insured for very large sums, using multiple policies, despite the almost inevitable objections based on lack of insurable interest; and
iv) could have achieved the above despite WFS and ASN being start-up companies with no track record, no proven substantial net assets and only a handful of existing employees.
Such a claim seeks to defy the laws of economic gravity. It would be wholly speculative and unrealistic.
"Mr. Wyllie and his entities, ASN and WFS, demonstrated clear financial dependency on the success of their business model and insurance policies, as part of the staff benefits package, in the case of insurable event. The model had a direct impact on the revenue and profitability of ASN and WFS, as per the terms of the policy. This dependency is a key element of insurable interest, as the economic benefits and liabilities were directly linked to the performance of the insurance product. At this point the claimants wish to clarify that they were not gaming, hedging or waging on anyone's lives, this was a legitimate operation, with development plans and growth, that was going to scale up on a monthly basis.
…
With thousands of interested candidates and a revenue projection backed by substantial figures (e.g., £144 million in commission over five years), the FSCS overlooked how this economic framework translated into an insurable interest and much more. The established legal principle asserts that an insurable interest arises when a person stands to benefit from the preservation of the insured subject matter, life, critical illness income protection, and medical insurance—here, the success of the insurance policies themselves, which were instrumental to ASN and WFS's business success, in the short term, until up and running." (my emphasis)
To my mind, that is not a good answer to the problems about insurable interest. It amounts to saying that the employer had an insurable interest in the employee's life/wellbeing because the employer stood to make large amounts of money from the insurance policy itself. In principle that cannot suffice.
i) It is difficult to see how 'ex gratia' redundancy payments would be recoverable as damages. Given that the 'staff' in question had not actually started work for WFS or ASN, it is not difficult to see why there was no legal obligation to pay them redundancy pay. It is more difficult to see why the alleged voluntary act of the Claimants to make these payments would have sounded in recoverable damages against Arc.
ii) It is difficult to see how salaries allegedly paid to staff can said to have been wasted. as presumably the staff in question did the jobs for which they were paid.
iii) It seems inconceivable that a computing hardware contract was entered into by the Claimants and that £397,370 was paid over pursuant to that contract (§§ 69(22) of the Particulars of Claim before HHJ Pelling KC), and it seems similarly inconceivable that a software contract was entered into pursuant to which £250,000 was paid over (§ 69(23)).
iv) More generally, it is very difficult to see how any expenditure that could be said to have been truly wasted was in excess of the sum of around £528,000 (net of premia) which the Claimants received from embarking on the scheme. It difficult to see where the money would have come from for such expenditure, if not from the commission sharing sums received, given the professed lack of other means of these Claimants and the fact that their case is that they would have used the commission sharing sums to build their businesses.
I would in any event not have regarded any such potential claim as a sufficient reason to allow a further attempt at pleading the case. The same considerations as I mention in the last sentence of § 92 above apply.
(G) CONCLUSIONS