England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/10/2017

Mr Justice Turner :

INTRODUCTION

1. Broadly stated, the central issue in this case is whether or not the claimant is (and has been) entitled to claim payments from the defendant under an income protection policy of insurance. He asserts that he has been unable to do his job as a result of the debilitating effects of chronic fatigue syndrome ("CFS"). The defendant responds by contending that he is not so entitled because he is either faking or, at the very least, significantly over-stating the seriousness of his illness. Significant sums had already been paid out before this issue was first raised and there is thus a counterclaim in respect of those payments which have already made by the defendant over the period during which it contends that the claimant had no right to receive them.
2. A further issue arises as to whether the defendant is entitled to avoid the policy on the additional ground that the claimant made misrepresentations concerning his income from other sources during the period when he was receiving payments under the policy.
3. I would wish, at this early stage, to repeat an observation I have made in earlier cases in which I have been required to consider and adjudicate on very substantial quantities of material which have, in turn, given rise to lengthy oral and written representations. The parties in this case have produced opening and closing written submissions which run to a very substantial length indeed and all of which I have read carefully. As I remarked in Laporte v The Commissioner of Police of the Metropolis [2015] 3 All E.R. 438 at paragraphs 2 and 3 :

"2…Whilst paying tribute to the level of industry to which these well intentioned and articulate submissions attest I resist the temptation to try to reconcile and resolve all of the subordinate issues which have thereby been generated. As the Court of Appeal held in Customs and Excise Commissioners v A and Another [2003] Fam 55:

"82 A judge's task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process…

83 However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.

84 Our system of full judgments has many advantages but one must also be conscious of the disadvantages."

3 I have tried to balance those advantages and disadvantages in what follows by giving reasoned decisions on those issues of fact which I consider to be central but without dealing with every peripheral issue the resolution of which would not in any event impact on my essential findings or upon the outcome of the claims."

4. Those observations apply with equal force to the present case.

THE BACKGROUND

5. On 21 March 2006, the claimant started work for Piper Jaffray Limited ("PJL") as Head of Institutional Equity Sales. In this capacity, he became entitled to the cover provided by a group policy under a Permanent Health Insurance Scheme now operated by the defendant. The insured benefit to which the claimant alleges he is entitled became payable in the event that he were to become "unable because of illness or injury to perform the Material and Substantial Duties of [his] Employment." The policy allowed for any beneficiaries thereunder to claim such benefits directly from the insurers rather than through PJL.
6. In late 2008, the claimant contracted a chest infection. He attended his general practitioner on 5 January 2009 complaining of symptoms which he said had been troubling him for about nine weeks. On 27 January, he was, rightly or wrongly, diagnosed as suffering from glandular fever. The claimant claims that he struggled thereafter to work to his earlier level and he was repeatedly signed off sick in consequence of his reports of debilitating fatigue.
7. In due course, the claimant filled out a personal details questionnaire for the defendant as a precursor to his making a claim under the policy. The claim form was returned on 27 August 2009 and the defendant admitted the claim on 20 November of that year.
8. About four years later, the defendant stopped paying the claimant under the policy asserting, in short, that he had significantly misrepresented or overstated the level of his symptoms. The claimant sought to appeal against this decision but was unsuccessful. He, therefore, started these proceedings to recover the monies which he alleges ought to have been paid since September 2013 but which have been withheld from him. The defendant counterclaims for the return of all the benefits already paid from December 2010 on the grounds that: the claimant did not qualify for such benefits, his claims have been contaminated by fraud or he is liable in deceit and/or by way of restitution.

A PRELIMINARY OBSERVATION

9. The main categories of primary evidence relevant to the competing submissions of the parties comprise:

i) Witness evidence relating to the claimant's presentation over the years;

ii) Extensive covert surveillance;

iii) Contemporaneous documentation relevant to the matters in issue between the parties including: letters, emails, tax returns, bank and credit card statements and mobile telephone records;

iv) The claimant's contemporaneous accounts of the extent of his alleged disability as given, for example: to the defendant, to the Department of Work and Pensions and to professionals examining him both for therapeutic and forensic purposes;

v) The claimant's response to tests and examinations performed upon him by various medical and related professionals.

10. These categories of primary evidence have, in turn, been subjected to the scrutiny of experts instructed by the claimant and defendant respectively who, and I say this without criticism, have each reached conclusions which are broadly consistent with the case of the party instructing him.
11. The volume of material involved, spanning as it does a number of years, is very considerable indeed. It is in this case, as it was in Laporte, a tribute to the industry of the legal teams on each side that this large body of evidence has been subjected to such sedulous analysis in both oral and written submissions. However, there is a risk in cases such as this that too close a scrutiny of the trees risks losing sight of the wood. With each, and ever more closely observed, layer of inspection and analysis, the law of diminishing returns takes a heavier toll.
12. It is for this reason that I have resisted the temptation to rehearse and resolve every issue of primary fact which has arisen; concluding that the demands of both justice and clarity are best served by an analysis involving a more generic and broader textured approach. The parties can, however, remain confident that where I have not made express reference to any given issue it is because I have considered it unnecessary to resolve that issue before reaching my central and essential conclusions on the evidence as a whole.
13. Moreover, where I have either resolved any issue or chosen to refrain from so doing, I have taken into account the respective arguments of the parties (and, in particular, those set out in their closing written submissions) without overburdening the judgment by repeating their every nuanced detail. Furthermore, I have in the forefront of my mind that the burden of establishing an entitlement to payments under the policy rests throughout on the claimant and wherever I have made reference to what has or has not been demonstrated to my satisfaction it is on this basis whether or not it has been expressly stated to have been so.

THE LAY WITNESS EVIDENCE

14. The claimant's evidence was to the effect that, after recovering in part from a low point in the summer of 2010 which may have extended into 2011, his condition has neither improved nor deteriorated on a long term basis. He reported that the severity of his symptoms, however, tend, in the shorter term, to follow an irregular cyclic pattern against the background of which some days, weeks or even months can be better than others.
15. There is nothing inherently implausible about such a presentation in cases of CFS. NHS Guidance on the condition states:

"The symptoms of chronic fatigue syndrome (CFS) vary from person to person, and generally there may be good periods and bad periods. There may be times when your symptoms improve and you'll be able to do many normal everyday activities. At other times, symptoms may flare up and get worse, affecting your daily life."

16. The experts in this case do not dissent from this description. The central issue is as to whether, in broad terms, the presentation of the claimant is indicative of genuine fluctuations in the levels of his symptoms or of inconsistencies arising from dissimulation or exaggeration.
17. In the case of CFS, the importance of presentation is paramount and the diagnosis of this most elusive of pathologies involves, to a considerable degree, the exclusion of all alternative diagnoses and, thereafter, attaching the label of CFS to what remains. As Fukuda et al observe in "The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study":^[1]

"Diagnosis of the chronic fatigue syndrome can be made only after alternative medical and psychiatric causes of chronic fatiguing illness have been excluded. No pathognomic signs or diagnostic test for this condition have been validated in scientific studies…"

18. No one has ventured any alternative genuine organic or psychological explanation for the claimant's symptoms and so the truth and accuracy of his evidence finds itself centre stage in the process of analysis in this case.
19. In his witness statement of 8 July 2016, which stood as his evidence in chief, the claimant concludes by asserting that: "I have been very open in my dealings with the defendant since I contracted my illness because I had and have nothing to hide."
20. Of course, the burden of proof falls on the claimant to demonstrate that he is entitled to the benefits he claims but the veracity of his complaints is perhaps best tested against the challenges mounted by the defendant to his credibility and it is those to which I will now turn.

THE CLAIMANT'S ALLEGED LIES

21. The defendant relies upon a number of specific examples of instances in which it is alleged that the claimant has been caught out telling downright lies with respect to his condition. Particular emphasis has been placed on three of these with which I propose to deal in turn.

The "Newman lie"

22. Mr Newman is a functional capacity assessor. An essential part of his professional repertoire is the Chronic Pain Abilities Determination ("CPAD"). This form of assessment is designed to be carried out on two separate days. Functional and cognitive tests are performed on day one. There then follows a one day break. Then a second battery of tests is carried out on the third day. The justification for this approach lies in the common experience of those involved in the treatment of CFS sufferers that an objectively good performance on any given day may well be followed by a period of particular fatigue and incapacity shortly thereafter. This is a phenomenon somewhat unattractively referred to as "boom and bust".
23. Mr Newman gave evidence as a lay witness and, by common agreement, his evidence was to be ignored to the extent that it might be considered to have strayed into the realms of expert opinion. He was able to say, however, that during the first day of his assessment, on 21 August 2013, the claimant appeared to shut down after about an hour and said that he was unable to continue. Notwithstanding this, the claimant returned for the second assessment on 23 August during the course of which he was able to perform the majority of tests he was asked to do.
24. Because he had not completed the tests on both days, Mr Newman was unable to reach a definitive conclusion as to whether or not the claimant was deliberately exaggerating his symptoms. Doubtless, this is one reason why he was not presented as an expert witness. However, the defendant places particular reliance upon alleged discrepancies between what the claimant subsequently told Mr Newman in a follow up telephone call and what other evidence revealed he had actually been doing over this period.
25. On 2 September 2013, Mr Newman rang the claimant, upon instruction, to ask him how he was feeling after the assessment. Doubtless, the defendant was particularly interested in what the claimant was going to say because it had placed him under covert surveillance between 21 and 24 August inclusive and wanted to see whether his account to Mr Newman matched what could be seen on the DVD footage and what had been reported back by the agents who had taken it. Indeed, they had asked Mr Newman to call the claimant on the day after the surveillance had finished in which case the information given by the claimant would have been very fresh. However, in the event, there was a delay of nine days before the telephone call took place.
26. From Mr Newman's record of the conversation, the claimant said that he had "felt rotten…and all his symptoms had been made worse by [the CPAD]." Apart from initially trying to cycle for 2 miles, he "hadn't undertaken any activities since and could only rest on the sofa during the day…Since the assessment he feels that his symptoms have continued to deteriorate." He had "no cognitive abilities since the assessment and has not been able to read even an email." He had been unable to walk even short distances. There is some issue as to the accuracy of this record which I find it unnecessary to resolve.
27. Criticism was levelled at the claimant for failing to mention to Mr Newman that nine days earlier, as the surveillance evidence had revealed, he had been to a beer festival. In so far as the notion of a beer festival might, to the uninitiated, conjure up images of the participants cavorting in lederhosen whilst brandishing overflowing beer steins in scenes of infectious Bavarian gaiety, they must be dispelled. In reality, this was a rather understated affair in which patrons of the local public house were given the leisurely opportunity to sample a range of craft beers.
28. The DVD evidence relating to this occasion revealed no activity on the part of the claimant until he is seen at about 3.40pm leaving for the White Horse public house in the company of his wife and young daughter. Thereafter, he sits down for most of the time before being seen standing up whilst leaning against a shelf or bar. He drives home at about 7.55pm having consumed a quantity of beer the precise amount of which has given rise to a dispute which, again, I find it unnecessary to resolve.
29. The conversation with Mr Newman was relatively brief and Mr Newman did not make any specific enquiry about the claimant's ability to socialise over the period in question. Bearing in mind the fact that nine days had passed following this rather low key outing I am not surprised that the claimant made no specific and spontaneous reference to it.
30. It is also important to note that on other occasions the claimant had made no secret of the fact that he continued to socialise, at least to some extent, following the onset of his condition. Mr Wilson, who was providing Cognitive Behavioural Therapy at the request of the defendant, recorded in his notes of 29 April 2010: "been socialising in pub." On 10 June 2013, the claimant wrote to one of the defendant's claims assessors stating: "I am aware though that total isolation can bring its own problems and do try to meet very good friends and family, who understand the restraints (sic.) of my condition, albeit for fairly short time periods. This may be perhaps on a good week up to 2 or 3 times a week depending on how I feel."
31. Indeed there is no occasion in which the claimant has been recorded as complaining that he was unable to socialise.
32. On the day after the beer festival, credit card evidence reveals that the claimant and his family went on a break to his mother-in-law's cottage in Southampton. On 25 August and 29 August, transactions are recorded to have taken place at the Chilworth Arms which is near Southampton. On the latter date, there is a modest payment in respect of a visit to a public garden attraction some ten miles distant. However, the credit card evidence only goes so far because, although the account is in the claimant's name, both he and his wife have cards which can be used on the account. It is not surprising that the passage of time has rendered it difficult for the claimant to recall which payments were made by him and which by his wife and whether it was one or both of them who had enjoyed the benefits of the meals or outings to which such payments related.
33. The defendant criticises the claimant for failing to mention the Southampton break to Mr Newman and relies on the fact that he had earlier told Mr Newman that his symptoms were made worse when he travelled on holiday which he did not do often. I am not without some sympathy for the defendant's concerns in this regard but I am not satisfied that the claimant's omission to mention a relatively short break in a familiar and not too distant domestic location amounted to a deliberate attempt to deceive. As with many of the issues in the case, the defendant seeks to rely upon alleged discrepancies between broad and generic descriptions of what the claimant says he can do and the specific examples of activity revealed by the objective evidence. Of course, such discrepancies are not irrelevant but they must carry significantly less weight than instances of sufficiently direct and stark contradictions to be more strongly supportive of allegations of dishonesty. Indeed, the inherently elusive and fluctuating nature of the condition of CFS, combined with the fact that concrete instances of flat contradiction between the claimant's accounts of what he can do and that which can be objectively proved to have done are so scarce, means that the court will be naturally hesitant to conclude, without more, that the claimant is a fraudster.

The "DWP lies"

34. On 14 July 2010, the claimant presented "Grounds for Appeal" to the Employment and Support Allowance Tribunal. The defendant contends that the representations contained therein are lies. For example, in the defendant's closing submissions it is recorded that the claimant asserts in his Appeal Grounds that he would get dressed in a tracksuit and "he could not manage other forms of clothing if necessary." It is pointed out that he went on a skiing holiday in 2010 and that would have necessitated wearing considerably more than a tracksuit. However, a closer reading of the Grounds reveals that the claimant did not say that he could not manage other forms of clothing if necessary but that he could not "manage other forms of clothing unless necessary". [Emphasis added].
35. The surveillance footage taken nearly six months later in December 2010 shows the claimant going shopping and taking his dog to the pub which are activities falling outside the scope of his descriptions of a typical day in the Grounds but these discrepancies are not so stark or closely contemporaneous as to lead me to the conclusion that he had lied in the Grounds, particularly bearing in mind that the footage can only capture a relatively small part of the claimant's presentation in the context of a condition which, as I have already observed, permits fluctuating levels of activity.

Lies on the financial review form

36. The amount of benefit to which the claimant was entitled under the policy was limited to 75% of his pre-incapacity earnings. Consequently, he was required to complete financial review forms to confirm his levels of income from time to time to ensure that this ceiling was not exceeded. In January of 2011 and 2013 respectively the claimant was required to declare if he were either receiving or had received any other income during the course of the claim. On each occasion he responded in the negative on a pro forma which included a statement of truth in the usual terms.
37. It transpires that the income received by the claimant by way of benefits from the defendant amounted to £92,457 per annum but that his tax returns reveal that his total declared income in the years 2011 and 2012 respectively was £170,713 and £103,511.
38. When challenged with these discrepancies in cross examination, the claimant struggled to account for them, speculating that they may be explained by an oversight or by a matter which had been dealt with on his behalf by his wife. His unpreparedness for this particular line of questioning, however, is not entirely surprising since the point had not featured, other than in the broadest generic form, either in the pleadings or in the skeleton arguments. No objection to this line of cross examination was taken on the claimant's behalf on the basis that it was conceded that the defendant's decision to keep its powder dry on this issue fell within the legitimate tactical boundaries of the adversarial process.
39. One consequence of this unheralded turn of events was that the "financial fraud" argument rather took on a life of its own and generated further written submissions, disclosure and, eventually, an unsuccessful application on the part of the defendant that I should recuse myself from the case on the grounds of apparent bias. My determination of this issue is to be found at Miley v Friends Life Limited [2017] EWHC 1583 (QB) and there is no need for me further to map out that particular procedural cul-de-sac in this judgment.
40. The first issue to be determined is whether, irrespective of the claimant's state of mind, the relevant information he provided when filling out the form was accurate. Paragraph 4 of the Financial Review Form provided as follows:

"Other Income (income from investments may be ignored)

(a) Are you receiving or have you received any other income during the course of this claim? (You should include any continuing salary, bonus, pensions, commissions, etc.)

(b) Are you expecting to receive any other income in the future?"

On each form, the claimant responded to these questions in the negative.

41. The documentation disclosed after the hearing by the claimant concerning the sources of the income he received in addition to the payment made to him under the policy reveals that, in February 2007 and again in February 2008, his employers granted him restricted stock awards as part of a Long Term Incentive Plan. Such a plan aims, as its title suggests, to provide loyalty incentives to employees over the long-term, usually a year or more, via rewards linked to shares or securities.
42. Taking the February 2008 agreement by way of example, the claimant was granted 3,017 shares immediately. However, these shares were subject to a number of restrictions. These included potential forfeiture of the shares in the event, depending upon the circumstances, of the claimant's employment being terminated. The vesting date was identified to be 15 February 2011. The value of the restricted stock on the vesting date was £79,042. This sum was subject to income tax and was duly reflected in the claimant's payroll month for February 2011.
43. The defendant contends that the sums received under the restricted stock agreements comprised income received during the course of the claim under the income protection policy. I agree.
44. The further question arises, however, as to whether these sums comprised "income from investments" which the claimant would be entitled to ignore when filling in the Financial Review Form.
45. In Re Lilly's Will Trusts [1948] 2 All E.R. 906 Harman J observed:

"What then ought I to conclude in this will that "investments" and "securities for money" mean? Those two phrases may mean almost anything within limits according to the context in which they appear. In Jarman on Wills, 7th ed, vol 2, p 1272, …[w]ith regard to "investment," the learned author says (ibid, 1273): "'investment' is a vague term and no general rule can be laid down as to its meaning."

46. The Oxford English Dictionary includes the following definition of "investment":

"5(c) An amount of money invested in some species of property; also, A form of property viewed as a vehicle in which money may be invested."

47. In the context of this case, I am satisfied, on the application of a straightforward interpretation of the word within the context in which it appears on the Financial Review Form, that the restricted shares which were owned by the claimant were an "investment". The shares comprised the property into which money had been invested. When the value of the shares was realised, the money generated represented income from that investment and thus fell within that category of income which expressly fell to be ignored under the wording of the Financial Review Form.
48. The defendant's argument to the contrary does not stand up to scrutiny. It was articulated thus in written submissions:

"The Claimant submits that the money from the sale of his restricted shares was not "income" within the definition in the Financial Review Form but was "income from an investment" (see paragraph 8 of his Further Submissions). It is respectfully submitted that this is plainly wrong, because the shares were clearly and expressly part of the Claimant's bonus, and thus part of his total remuneration from employment. Selling the shares merely amounted to an election to receive the value of his bonus in a different form, that is, cash, as opposed to continuing to hold the shares. When cashed, the value of the shares crystallised, and the sum realised became income which was liable to tax as income (not as a capital gain).

In the plain, clear and unambiguous words of the Financial Review Form, the Claimant has received 'other income during the course of his claim'. Further, the shares were demonstrably part of his bonus, and 'bonus' is expressly mentioned in the Financial Review Form. Therefore it is submitted on the clear words of the document, the Claimant has failed to disclose that which he should obviously have disclosed, and which it is submitted he must have known that he should have disclosed."

49. The flaw in this reasoning is that whoever is filling out the pro forma is informed that they are entitled, expressly and without qualification, to "ignore income from investments". Thus it matters not that the investment, when originally made, represented a bonus which formed part of the remuneration from his employment. When it was vested in the claimant it gave rise to income from an investment and was thus excluded from further consideration whether it could be characterised as amounting to a bonus or not. If the defendant had wished to provide for a more draconian consequence it would have been a simple matter to draft the form so as to make it clear that the investment income exemption was subject to the wording of what followed and not, by implication, the other way round. One can envisage circumstances in which a closer scrutiny of the true nature of payments might be warranted to avoid potential abuse on the part of the employer and beneficiary. This might be the case where, for example, the income derived from an investment arises so hard on the heels of the making of the investment itself as to indicate that the process is a mere device to circumvent the 75% earnings ceiling, but such circumstances do not arise in this case.
50. Indeed, had I been in any real doubt about the proper interpretation of the wording of the form I would, in any event, have been guided by the contra proferentem rule to the same conclusion.
51. In any event, I am not satisfied that, even if the defendant's interpretation of the form were correct, the claimant provided deliberately fraudulent information when filling it out. He was clearly in difficulties during the course of cross-examination when seeking to explain the discrepancies between his tax returns and the sums which he received under the policy but I have to bear in mind that he had not been put on notice that any such point was to be taken and that the events to which his mind was being directed took place some years ago.
52. His first response when cross-examined on the point was to refer to his London flat the income from which could be categorised as an investment. It was, indeed, correct that the claimant was receiving income from this flat but when it was pointed out that the additional income was too large to be accounted for by the flat alone he replied:

"As I remember, I had a deferred payment from PJL, the details of which will be in here. It was paid in respect of a previous year. It was a bonus I'd earned in previous years and paid tax on in previous years… I imagine at the time I wouldn't even think of that deferred bonus…that is either an oversight on my part or something I felt didn't require being declared because of it being from previous years' earnings."

53. Now, with the benefit of the contemporaneous documentation, it can be seen that the claimant's understanding of the nature of the additional income, although inaccurate, for example, with respect of the timing of the payment of tax, was broadly consistent with the contemporaneous evidence which has subsequently been disclosed.
54. I am satisfied that it is entirely credible that, despite the relatively large sums involved, the claimant formed the view, when filling out the forms, that the additional income, relating as it did to shares issued to him before his period of incapacity, would not be material to the information which the defendant was seeking. It follows that, despite the fact that the claimant is likely to have been fully aware of the share income at the time of filling in the Financial Review Forms, I am satisfied that he genuinely did not consider it either necessary or appropriate to disclose it.
55. The defendant, however, contends that, even if the claimant did not intend to deceive when filling out the Financial Review Forms, his answers were inaccurate the contractual consequence of which would be to invalidate the entirety of his claim. Of course, on my interpretation of the wording on the forms, this argument simply does not get off the ground. In all the circumstances, I decline, on grounds of proportionality, to explore any further the hypothetical consequences of an alternative construction of the policy.

General credibility

56. In addition to the specific challenges to the claimant's integrity with which I have already dealt, the defendant lists a number of other alleged examples of his being able to do more than he claims and thereafter attempting inadequately and disingenuously to explain away the inconsistencies. Such examples include but are not limited to: an occasion when he appears to have used a Boris bike on a visit to London, drafting detailed emails at short notice and organising domestic events such as eating out. These contentions are set out in detail in paragraphs 30 to 36 and 48 to 75 inclusive of the defendant's written submissions and it would be disproportionate for me to deal with each seriatim.
57. I would, however, make the following observations:

i) In June 2013, the claimant kept an activity diary in which he recorded, for example: going on cycle rides, working on emails, socialising and painting the garage door. Save for one venial occasion upon which he records going for a coffee with a friend when, in fact, he went out for an alcoholic drink, there is no direct contrast between what he says he was doing and what he is seen to be doing. Moreover, the fact that he recorded significant activity at a time when he was not being filmed enhances rather than undermines his credibility.

ii) I do not consider, upon a fair and objective assessment of the evidence as a whole, as the defendant contends, that the evidence reveals that the claimant has only good days as opposed to a pattern of good and bad days. In this context, I note, in particular, that any bad days are likely to have been those upon which he did not venture out of the house and were thus not captured on video.

iii) The evidence reveals that the claimant has the cognitive ability, on occasion, to deal with emails, to initiate transactions on the internet, to engage with strangers and to socialise with friends. He has been able to ski, drive and travel alone on the train. Yet again, however, he has never denied being able to perform both mental and physical activities at some level. Although he reported being blocked by a mental fug, he was also stating in 2013, before the payments under the policy were stopped, that he still tried to do at least one mental task a day and was able to read, look at his emails and use the internet for short periods. I do not find that there is a sufficient level of contrast, between (i) what the claimant has been shown to be able to do in the surveillance and other objective evidence and (ii) his own account freely given, to support the suggestion that he is lying. It is to be noted when it falls to be determined whether the level of his symptoms satisfy the threshold test for his entitlement to benefits that his work with PJL had involved long hours, frequent evening meetings and very significant and sustained levels of concentration. I must take into account, as I do, the nature of the claimant's employment when applying the contractual test of entitlement under the policy.

iv) The defendant rightly points out that the claimant has taken frequent holidays both at home and abroad. Doubtless, this required a certain level of stamina but not one which I find to be inconsistent with the claimant's honesty or accuracy. The claimant was simply never asked about holidays at any relevant time before the payments were stopped under the policy and I am not satisfied that he could reasonably be expected to volunteer this information unprompted.

v) The point is fairly made on behalf of the claimant that the defendant, armed as it was with hours and hours of DVD footage, could have asked him direct and specific questions the answers to which may well have put beyond doubt whether or not he was being honest and straightforward. This they chose not to do.

vi) The evidence of the extent to which the claimant is able to shop and socialise does not significantly contradict his accounts of the extent of his limitations and carries the allegation of misrepresentation no further.

vii) The defendant suggests that the video evidence does not reveal that the claimant's friends and family behave any differently towards him than if he were fully fit. In the circumstances of this case, however, it is not apparent to me quite what overt demonstrations of assistance or concern could reasonably have been expected to have been portrayed.

58. Whether examined individually or in combination, I am not satisfied that these or any other alleged discrepancies sustain the contention that the claimant's evidence is contaminated by dishonesty. I must not lose sight of the fact that the claimant was being subjected to a sustained and legitimately hostile cross examination about the details of events and transactions which happened some considerable time ago. Against this background, it is not entirely surprising that his responses, on occasion, were defensively speculative. I do not find, however, that he resorted to deceit as opposed to a wary reluctance too readily to accept the conclusions he was being invited to draw from the evidence presented to him.

MOTIVE

59. The defendant suggests that the claimant had a strong motive to go off on long term sickness which would, whether consciously and/or subconsciously, tempt him to invent or overstate his level of symptoms to achieve and maintain the secondary gain of payments under the policy. My attention has been drawn to a distinctly mixed review of the claimant's performance at work over the period 2008/2009 and, more particularly, to the fact that it was known by the summer of 2009 that his job was at risk. Indeed, his actual post was found to be redundant to the needs of his employers by the end of the following year. Set against this background, it is said that there was every incentive for the claimant to default to the presentation of fraudulent or exaggerated incapacity.
60. There are, however, a number of difficulties with this analysis. At the time of his illness, he was only 42 years old with a proven professional track record. The prospect of his continuing employment with PJL in a different role had been left not fully explored and it was also a matter of speculation as to whether he may alternatively have found well remunerated employment elsewhere. Furthermore, with every passing year out of work the claimant would be prejudicing his chances of ever returning to highly remunerative employment whilst still operating under the constant threat of the termination of his insurance payments should it be determined that he was no longer entitled to them. In addition, the ceiling of his benefits amounting to 75% of his earlier earnings operates, as it was clearly intended to do, as a disincentive to giving up on work.
61. On balance, therefore, I am satisfied that the claimant was not unduly influenced by the rewards of claiming under the policy so as to give rise to an exaggerated presentation of his condition.

OTHER LAY WITNESSES

62. It would be wrong simply to relegate the significance of the evidence of the lay witnesses called on behalf of the claimant to the status of a supine target against which the strength of the defence case is to be tested. Of course, the evidence of the claimant's wife, his mother and his close friends was always and understandably likely, at the very least, to be sympathetically inclined towards his case. Love and affection breed loyalty. Nevertheless, the level of contact which each has maintained over the years with the claimant must mean, on the defendant's case, that:

i) they are complicit, at least to some degree, in his fraud and have loyally perjured themselves in his cause; or

ii) he has managed to sustain a sufficiently consistent and credible portrayal of serious disability to fool them; or

iii) he has convinced himself, wrongly, that his symptoms are sufficiently serious to entitle him to claim and they, equally wrongly, agree; or

iv) a combination of two or more of the above applies.

63. The evidence of the claimant's wife, Rachel, was that:

i) almost without exception he goes to bed between about 8.30 and 9pm;

ii) they do not have nights out;

iii) he only rarely drives;

iv) he presents as being depressed and frustrated on a daily basis.

64. The evidence of the claimant's mother, Sheila Sykes, was that:

i) on more than one occasion she has visited the claimant and found him in bed or immobile on the sofa;

ii) if he has to arrange something for his wife or daughter, for example, buying a birthday card, he relies on her assistance and she goes out with him to help;

iii) she acted on his behalf on a successful appeal in respect of his application for Employment and Support Allowance because he was unable to cope with the prospect of doing it on his own;

iv) she has observed the strain which the claimant's presentation has put upon his wife and daughter.

65. Mr Woodfield, a friend of the claimant of 35 years' standing, said:

i) in contrast to the position before the diagnosis of CFS, it was he, rather than the claimant, who would now initiate any social outings together ;

ii) often, the claimant would not want to make the effort to socialise;

iii) on those occasions upon which they were together, the claimant would, after a while, become visibly tired;

iv) in summary, the claimant is a shadow of his former self.

66. Mr Finlay, another close and long term friend, said:

i) he still sees the claimant about once a week but these arrangements are rarely initiated by the claimant himself;

ii) their meetings are shorter than they had been hitherto;

iii) the claimant visibly deteriorates as time goes by with signs of fatigue;

iv) in broad terms, he is not the man he was.

67. Each of these witnesses was properly and robustly challenged in cross-examination but, for the most part, they were not drawn away significantly from the contents of their witness statements which stood as their evidence in chief.
68. I take the view that, bearing in mind the extent and duration of the contact which each of these witnesses has maintained with the claimant over recent years, it is improbable that they are primarily the victims of any persistent deceit on his part. Even the most callid performer would struggle to fool all of these people all of the time. Furthermore, such a performance would take such a sustained and unremitting effort of self-control on the claimant's part as to render his quality of life almost as impaired as if he were suffering from a genuine medical condition which gave rise to such limitations.
69. It follows that the scrutiny to which the evidence of the claimant and his witnesses have been exposed has focussed, in particular, upon their veracity as opposed to their gullibility.
70. I will now look in turn at the various respects in which such evidence has been challenged on behalf of the defendant but, recognising in so doing, that ultimately it is the complete picture which is of paramount importance.

Mrs Miley

71. The defendant contends that Mrs Miley has been complicit in lying on her husband's behalf with respect to a number of matters including family holidays, his activities in the aftermath of the CPAD in August/September 2013 and on the content of the DWP forms.
72. In summary, it is contended that she deliberately understated (in her oral evidence, her witness statement and in her contribution to the filling out of the DWP forms) the number of holidays and short breaks taken by the claimant. In particular, she did not mention the trip to Southampton following the CPAD tests. Furthermore, she exaggerated the levels of the claimant's incapacity.
73. The strength of these contentions is, however, diminished by the fact that, as with many of the points raised against the claimant, himself, the defendant is seeking to contrast the specific with the generic. The general descriptions given by Mrs Miley and relied upon by the defendant seldom contain any absolute denial that the claimant could or did ever perform any particular tasks or engage in any particular activity. In this context, it is to be appreciated that her natural instincts would inevitably have been to emphasise the extent to which the claimant's life had been affected. She would predictably and understandably have wished to ensure that her perception of any adverse changes in what he is able to achieve are properly prioritised in her narrative. I accept, therefore, that to this extent she was not an independent or objective witness; but that does not make her a liar.
74. I am fortified in this view by the fact that she made clear concessions that, for example, it was not she who had ridden the Boris bike and that she had not completed the financial review forms on behalf of the claimant. A determined liar would have been supple enough at least to prevaricate on these issues.
75. Furthermore, having had the opportunity to observe Mrs Miley give evidence, I concluded from her response to cross examination and to her demeanour that she was genuinely trying to avoid misleading the court even when she was under the clear temptation to advocate her husband's case. I am satisfied that where loyalty and accuracy appeared to be in conflict she was doing her best in difficult circumstances to prevent the former from dominating the latter. That she may not have been entirely successful in this regard does not make her dishonest.

The other witnesses

76. My assessment of the other lay witnesses called on behalf of the claimant is similar. I have no doubt that their natural allegiance to the claimant was bound to have the consequence that they were uncomfortable with the suggestion that he had been faking his symptoms and they were thus taking a defensive rather than a wholly disinterested perspective on the evidence. Nevertheless, in none of their cases did I conclude that he or she was being dishonest. Again, the defendant was unable to point to any specific issue in respect of which any of these witnesses was telling a downright lie. The contrast was, once more, largely between the general descriptions of the witnesses and examples of specific events relied upon by the defendant which it was contended were inconsistent with such general description. Having had the advantage of hearing and seeing these witnesses give evidence, I am satisfied that they were doing their best to help the court notwithstanding their feelings of loyalty to the claimant.

SURVEILLANCE

77. Between December 2010 and August 2013, the claimant was put under surveillance over five separate periods. The relevant surveillance reports are, in total, over one hundred pages in length. The parties have analysed what is revealed in the finest of detail. I do not find it difficult to resist the temptation to do the same. I have taken into account the points made both orally and in writing on this issue and consider it necessary and proportionate simply to summarise my views on the central issues.
78. In December 2010, the claimant is seen: going out in his car, shopping, attending the dentist and going to his daughter's nativity play. On one occasion, he goes to the local public house where he is overheard by the surveillance operatives to say words to the effect that that he had only been out a couple of times that year because the weather was bad and he was not feeling well.
79. Nearly two years later, in November 2012, a second tranche of surveillance took place. During this period, the claimant was seen to visit a pub with a friend and take his bicycle out for less than 15 minutes.
80. I note that these periods of observation did not generate a level of suspicion on the part of the defendant sufficient to prompt immediate further surveillance. Indeed, it was not until April 2013 that the covert filming resumed. The claimant was seen to go out on his bicycle and being given lifts to and from a beer festival.
81. The penultimate period of observation took place in June 2013. This was carried out in response to a request from the defendant, an employee of whom had written to the surveillance team saying: "I'd like 5 more days, with the idea being to see Charles as active as possible." This request was carried out but over that period of five days, the claimant left the house only once when he went to a public house with a friend in the afternoon. Perhaps unsurprisingly, the author of the request was not confident of the value of the evidence which had been gathered. In a referral sheet dated 9 July 2013, he recorded that the evidence was "disappointing as only observed on one day out of 5 when he visited pub…". He went on to give his recommendation: "I'm not now convinced that we'll be able to end this claim for misrepresentation…" and went on to consider "CPAD assessment or other evidence."
82. And so it was that the final period of surveillance was that which coincided with the CPAD assessment.
83. During this period, the claimant is filmed attending for the two days of his CPAD assessment. On others days, he is recorded going to the beer festival to which I have already made reference and returning home having been out for some unspecified period with his dogs.
84. There is no surveillance evidence before the court relating to any period after the defendant ceased making payments under the policy in September 2013.
85. I have reached the conclusion that the surveillance evidence, whether taken on its own or in combination with all the other evidence in the case, falls very far short of undermining the claimant's case that he is telling the truth about his levels of disability or that his medical condition is sufficiently serious to entitle him to claim under the policy. I make the following observations:

i) Once more, there is a lack of flat and unequivocal contradiction between what the surveillance evidence reveals and what the claimant says he has done. Had the claimant, for example, denied ever going to the pub or going cycling then the defendant's case would have been immeasurably strengthened. As it is, the value of the surveillance evidence is undermined by the far weaker contrast between the general and the specific.

ii) Consistently with the claimant's evidence and that of his wife, the video evidence reveals no occasion upon which the claimant goes out in the evening whether with friends or otherwise.

iii) There are a number of days on which he is not seen to leave the house at all.

iv) Despite the fact that Mrs Miley is in work, there are a number of occasions when she undertakes other duties, such as mowing the lawn and doing the school run when the claimant does not appear to be otherwise occupied.

v) The footage of the second visit to the CPAD assessment clearly shows the claimant struggling to walk the distance to the car. The defendant is constrained to explain this by speculating that the claimant was putting on a show because he may have suspected that he was under surveillance. However, this suggestion does not explain why, if the claimant were alerted to the possibility that he was being watched, that he did not curtail his activities for a longer period. The claimant said under cross examination that he was unaware that he was being filmed at any stage and I believe him.

DEMEANOUR

86. The defendant suggests that the claimant's demeanour when giving evidence in court was inconsistent with his previous responses to examinations and questions from, for example, Mr Newman and Dr Williams when he seemed to shut down altogether.
87. Judges should exercise some caution when seeking to determine the credibility of a witness wholly or mainly on the basis of an assessment of his or her demeanour. Generally speaking, other methods of appraisal, where available, may well tend to be more reliable. Bearing this in mind, however, I am of the view, in this particular case that it was advantageous for me to be able to observe the claimant not only when giving evidence but also when he was sitting in the well of the court watching proceedings.
88. There were times when he appeared to lose concentration and hold his head in his hands. At other times he was more attentive. His period of inattention did not, however, seem to correspond to particular longueurs in the evidence and this pattern was sustained over the successive days over which the trial took place. I witnessed nothing in his presentation which appeared to contradict his evidence or that of his witnesses concerning the impact which his illness had had on him. Indeed, I would go further and conclude that his behaviour and appearance in court provided at least some level of support for his case.

EXPERT EVIDENCE

89. Reports were prepared and oral evidence given by experts in two disciplines. Professor Findley and Mr Tandy were the claimant's experts in CFS and functional capacity respectively. The defendant relied on Professor Cleare and Dr Williams in corresponding areas of expertise. There is no dispute that each expert was fully qualified to assist the court in their areas of speciality and I have formed the view that there is no compelling basis upon which their qualifications can usefully be distinguished. In all, their written evidence comprised over 400 pages of reports and appendices.
90. There were, however, areas of agreement. In particular, there was no dispute that the Fukuda classification, to which I have already referred, is a reasonable one to use as a basis for diagnosing CFS. Such diagnosis is reached through a combination of taking a detailed history, examining the patient and undertaking specific investigations to rule out alternative causes. It is not possible to diagnose CFS through physical testing alone, by questionnaire alone or a combination of the two. All agreed that unreliable reporting would impact upon the clinician's ability to make a diagnosis of CFS but accepted that CFS can, in itself, lead to altered perceptions of symptoms on the part of the sufferer. The significance of such discrepancies must be a matter of degree which raises an issue which cannot be wholly resolved by scientific analysis. The decision must ultimately be that of the court.
91. In summary, the evidence of Professor Findley was that the features of the case relied upon by the defendant including but not limited to: the claimant's ability to ski, drive, cycle and compose detailed emails did not, taken as a whole, militate against a diagnosis of moderate to severe CFS. He placed particular emphasis on the fluctuating nature of the condition and was not persuaded that the examples given by the defendant pointed towards motives amounting to what were described as "secondary gain".
92. Professor Cleare took a more sceptical approach suggesting that the court could conclude from the evidence as a whole that the difference between the reported levels of symptoms and impairment and the other evidence in the case casts significant doubt upon the diagnosis of CFS. He conceded, however, that, looking at the documentation comprising the contemporaneous medical presentation of the claimant, he would not have had a particular difficulty in diagnosing CFS, despite some atypical features. He went on to accept that in the early stages there probably was a level of CFS but questioned the persistence and severity of the condition. He went on realistically to defer to the judgment of the court on the extent of any unreliability thereafter to be inferred from the other evidence such as the surveillance footage. However, he was reluctant to conclude that on any reading of the evidence the level of the claimant's symptoms was other than mild.
93. Mr Tandy and Dr Williams agreed that physical capacity alone was not a good indication when considering a diagnosis of CFS or its severity because significant psychological factors including resilience, confidence and subjective cognitive ability had to be taken into account. Dr Williams, however, placed particular reliance on the inference that cycling at a particular level of effort over the speed and distance shown in the surveillance evidence suggested that the claimant had not been deconditioned by prolonged periods of inactivity and thus suggested a history and pattern of exercise. He attempted to assess qualitatively the amount of physical effort required to cycle over the distance and at the speed shown in the surveillance evidence. Mr Tandy was generally more cautious in his approach to the evidence in the case and more ready to defer to the professors when looking at the range of likely diagnostic conclusions.
94. This is not a case in which the competing views of the experts present the court with a black and white choice between competing diagnoses. The categorisation of CFS as mild, moderate, severe or very severe is a necessarily imperfect attempt to impose a system of taxonomy on a condition of widely variable and elusively fluctuating presentation. More particularly, experts in this field are dependent, to a substantial degree, upon disputed and controversial primary facts upon which their respective assessments are, at least partly, to be based. Thus the issue as to whether the claimant is lying is inextricably bound up with the issue as to which expert evidence to prefer. It may well be for this reason that there were occasions when Professor Findley and Professor Cleare each gave the appearance of placing greater emphasis on the primary evidence which would seem to be more consistent with their respective medical conclusions. The defence experts, for example, naturally focussed on such activities as skiing and cycling whilst, in the case of Professor Cleare, appearing to be somewhat uncomfortable about the video evidence showing little or no activity in any given day.
95. It would be wrong to approach the expert evidence in this case as if in a vacuum. Of course, expert evidence informs, to an extent, the question as to whether the claimant is exaggerating but the reverse is also true. The claimant's general credibility (or lack of it) may also inform the issue as to the evidence of which experts is to be accepted.
96. As appears from my assessment of all of the non-expert evidence in this case, I am, on balance, satisfied that the claimant has not been dishonest and has not formed a subjective assessment of his levels of disability which significantly belies the objective reality. The balance of the expert evidence, when introduced into the equation, at whatever stage, does not change my view.
97. In summary, I found the evidence of Professor Findley on the whole to be more persuasive than that of Professor Cleare. I found the latter to be particularly hesitant about making sufficiently prompt concessions where he may have thought that they may have lent some credence to the claimant's case. In particular he appeared to be unnecessarily reluctant in reaching the conclusion, which he eventually did, that the claimant probably was suffering from some level of CFS in the early stages of his presentation. I also formed the view that Professor Findley's approach more closely reflected the uncontroversial understanding of CFS as an elusive and fluctuating condition. In this context, reference can be made to the CFS/ME Working Group of January 2002:

"During the course of preparing the report, the Working Group has continued to be concerned at the widespread controversy surrounding the existence and nature of CFS/ME. Patients, their carers, and healthcare professionals encounter different levels and varying manifestations of disbelief and prejudice against people affected by the condition. The disbelief and controversy over CFS/ME that exists within the professions has done nothing to dispel public disbelief in the existence of such a seemingly varied and inconstant illness."

None of the experts in this case disavows the existence of CFS as a real pathology but it is the reference to it as a "varied and inconstant illness" which resonates against the background of this case.

98. The authors go on to observe:

"Indeed, there may be severe impact on people's lives even of less overtly severe CFS/ME, as the descriptions offered by Cox and Findley for mild and moderate CFS/ME suggest. Such patients may suffer most impact through the discrepancy between what they were able to achieve previously and what they can now do. Even less prolonged illness, whatever the severity, can have very substantial personal and social impact, mainly intrusions on the individual, relationships, work, and finances. Self-confidence and self-esteem are severely eroded in many cases."

99. I found Dr Williams' extrapolations concerning the level of effort which the claimant was seen to put in when, for example, cycling and the likely effect of deconditioning to be somewhat strenuous and speculative. I concluded that his evidence really added nothing of significance to the exercise of forming a realistic conclusion from the DVD evidence and the reports of the surveillance operatives.
100. For my own part I was unpersuaded that the claimant's presentation (including, by way of example only, his skiing and cycling and cognitive capacity) was so atypical of a level of CFS, which was sufficiently serious to bring him within the terms of the policy cover, as to undermine my conclusion as to his general veracity and accuracy.

CONCLUSION

101. It follows that, having reviewed the central issues in the case in turn and then stepping back and taking all the evidence as a whole, I am satisfied that the claimant has discharged the burden of demonstrating that he suffers from CFS at a level sufficiently debilitating to entitle him to the requisite benefits under the policy. I find that he has not deliberately fabricated or exaggerated the extent of his disability and that his subjective assessment of the severity of his condition is not materially worse than the objective truth. Of course, this is not a personal injury claim and so the claimant's continued entitlement to benefits is not fixed in stone by my judgment in this case. He is entitled, therefore, to judgment in respect of the payments which he has not received since September 2013 up to 26 July 2017 together with interest thereon but not to any declaration in respect of payments thereafter. It must also follow that the counterclaim fails.

Note 1   15 December 1994, Annals of Internal Medicine Vol. 121 No. 12    [Back]