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Cite as: [2005] CSOH 101, [2005] ScotCS CSOH_101

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Hawkins v. Scottish Mutual Assurance Plc [2005] ScotCS CSOH_101 (02 August 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 101

A1621/03

OPINION OF R F MACDONALD QC

(Sitting as a Temporary Judge)

in the cause

DAVID ANDREW HAWKINS

Pursuer

against

SCOTTISH MUTUAL ASSURANCE PLC

Defenders

________________

Pursuer: Sandison; Morton Fraser

Defenders: Peoples, QC; Dundas & Wilson, CS

2 August 2005

INTRODUCTION
[1] The pursuer lives in Tamworth, Staffordshire and was formerly employed as the managing director of Elite Engineering (BOT) Limited ("Elite"), a company founded and owned by himself and his wife. His date of birth is 18 February 1962. In 1996 he took out with Pegasus Assurance Limited ("Pegasus"), to whose rights and liabilities the defenders have succeeded in terms of a Scheme made under section 49 of the Insurance Companies Act 1948, a policy of assurance known as the Pegasus Business Assurance Plan. The contract consisted of a letter of acceptance from Pegasus to the pursuer dated 25 November 1996, a policy schedule, and, (so far as applicable standing the terms of the letter and schedule) the Standard Provisions for the Pegasus Business Assurance Plan ("the Standard Provisions") published by Pegasus under reference PEG/BA/496. In terms of the Plan the parties prorogated the exclusive jurisdiction of the courts of Scotland in relation to all disputes concerning the policy.

[2] In this action he concludes for (1) £460,130, being the sum assured as at 19 March 2002; (2) £163,000 as damages for breach of contract, being the loss incurred by the pursuer as a result of the defenders' failure to pay the sum assured when it became payable on 19 March 2002; and (3) £2,671.56 as repetition of monthly premiums debited by the defenders from his bank account after 19 March 2002.

THE TERMS OF THE POLICY
[3] The form of assurance which the pursuer took out is known as "Ultimate - Critical Illness and Disability". Certain of the Standard Provisions are relevant for the purpose of the present action. As printed they contain an irritating surfeit of capital letters, but I shall reproduce them in the form in which they appear in the Plan. They are as follows.

[4] Section 1.3, headed "Payment of Benefits" provides:

"The Company will pay .... any benefit due under the Policy provided that ....

the Company has received the due Premiums,
the Owner has returned the Schedule to the Company, and
the Owner has provided reasonable proof, which is satisfactory to the Company, of:

(a) the happening of the event or the occurrence of the condition on which benefit is payable, (b) his legal entitlement, and (c) the correct date of birth of the life assured.

(iv) the Life assured has undergone at the Company's expense any medical examination that the Company may have required.

After the Company's requirements for payment of benefit have been met, the Company will add interest to the amount payable, if it considers that the due payment has been unreasonably delayed. The Company will decide a reasonable rate of interest to be used."

Section 4.4 is headed "Total Permanent Disability". Section 4.4(b), headed "Occupational Disability (Own Occupation)", provides:

"Subject to the exclusions and restrictions specified in section 4.7, the Company will consider the Life Assured to have Total Permanent Disability if, in the opinion of an Appropriate Medical Specialist:

(i) the Life Assured, whilst having his Notified Occupation as his remunerated occupation, becomes disabled due to accident or sickness prior to his 65^th birthday, to the extent of being wholly unable to perform his Notified Occupation, and

(ii) the disablement is permanent and irreversible, there being no reasonable prospect that the Life Assured will ever again have the fitness required to undertake his Notified Occupation."

The expression "Appropriate Medical Specialist" is defined in Section 1.1 as follows:

"... a medical practitioner considered by the Company to be qualified to give such expert diagnosis, opinion or assessment as it may require."

In the same Section "Notified Occupation" is defined as "the occupation of the Life Assured specified in the Application made by the Owner ....". Section 3.5, headed "Disability Benefit", provides:

"If the Owner makes a valid claim on account of .... Total Permanent Disability the Company will:

(i) terminate the Policy on the later of:

(a) the relevant Qualifying Date as defined in Section 4.3 or Section 4.4, as appropriate, and

(b) the date when all the claim requirements have been met (see Section 1.3 - Payment of Benefits), and

(ii) pay an amount equal to the greater of:

(a) the sum Assured at the Qualifying Date, and

(b) the value of the units allocated to the Policy.

The Company will value the units at their Bid price applying to the Qualifying Date."

"Qualifying Date" is defined in Section 1.1 as "the date which the Company will use to determine the amount of benefit to be paid for a valid claim for .... Total Permanent Disability Benefit". Section 4.4 (c) provides:

"For Total Permanent Disability .... The Qualifying Date will be the later of:

(i) the first date on which the Appropriate Medical Specialist is able to give the Opinion requested, and

(ii) the date on which the Company is notified of the claim for Total Permanent Disability."

Section 4.7(e) provides:

"The Company will normally reach a decision on the validity of a claim for Total Permanent Disability within 6 months of being notified of the claim. The Company will nevertheless be entitled to defer its decision until 12 months after the Life Assured becomes disabled, if it considers it reasonable to do so."

INDEMNITY

(i) The pleadings
[5] The pursuer avers that in or around 1999 he became ill with a depressive disorder which resulted in his having to undergo various treatments, including lengthy inpatient drug and ECT treatment in a psychiatric clinic. He became wholly unable to perform the functions of his notified occupation as his cognitive function was severely impaired by his condition. He could not remember clients' names, the way to places he required to visit in the course of his business, or other details of the business he required to transact. The practical burdens of running the business of Elite required to be passed to other employees of the company, although the pursuer remained the nominal managing director thereof until 2001. In 2000 he submitted a claim to the defenders in respect of the "Occupational Disability (Own Occupation)" provisions of the parties' insurance contract. (I shall refer to the benefit which the pursuer claimed as Total Permanent Disability (TPD) benefit.) The defenders sent to his consultant psychiatrist, Dr P K Singhal, a pro forma enquiry sheet about the pursuer's health together with a letter requesting that he should complete and return it to them. Dr Singhal completed the pro forma on 9 September 2000 and certified that in his opinion the pursuer was not capable of carrying out his own occupation, on either a full or part time basis. In response to a question in the pro forma he stated that he could not comment on when the pursuer would be able to resume work. By letter of 21 September 2000 to the pursuer the defenders declined the claim on the basis that that, according to Dr Singhal, the pursuer was still undergoing treatment and there was no certainty about his prognosis. By letter dated 27 September to the defenders Dr Singhal clarified that his view was that he saw no reasonable prospect of the pursuer returning to his occupation in the foreseeable future, but the defenders did not alter their position. In response the defenders admit that the pursuer made a claim for TPD benefit and the terms of the report and correspondence and aver that, subsequent to them, the pursuer was actively involved in running the company and, in particular, was managing director between August 2002 and the date when the company was put into receivership in about February 2003. They further aver that Dr Singhal was never instructed by them, under reference to the relevant policy provisions, and in particular paragraph (sic) 4.4(b), to provide an opinion on whether or not the pursuer satisfied the policy conditions for receipt of TPD benefit.

[6] The pursuer further avers that he was examined by an independent consultant psychiatrist, Dr A M Whitehouse, in January and October 2001 pursuant to arrangements made by his own solicitors. In January 2001 Dr Whitehouse recommended further treatment, which the pursuer received. In October 2001 Dr Whitehouse re-examined the pursuer, and by report of 5 November 2001, certified as a result of that examination that the pursuer's depressive disorder was permanent and that there was no reasonable prospect of his being fit to continue with his job as managing director. That report was sent to the defenders by the pursuer's solicitors. The defenders then requested a report from another consultant psychiatrist, Dr M A Sherman, by letter to him dated 5 January 2002. His report was provided to the defenders on or around 19 March 2002. In that report Dr Sherman stated it as his opinion that the pursuer was permanently disabled as a result of chronic depressive disorder, that his condition was irreversible and that it was extremely unlikely he would become well enough to return to his job. By 19 March 2002 at the latest (being the date upon which Dr Sherman, as an expert medical practitioner (sic) requested by the defenders to give his opinion on the pursuer's condition gave his said opinion) the conditions for the defenders' liability under the "Occupational Disability (Own Occupation)" provisions of Section 4.4(b) of the Standard Provisions in relation to the pursuer were met. The defenders have refused to accept that the conditions for their liability have been met and have refused to make any payment to the pursuer. Their refusal apparently proceeds upon the contents of another report on the pursuer instructed by Harley Street Claims Limited ("HSCL"), apparently on their instructions, by letter of 26 July 2002, after they received Dr Sherman's report, from a Dr Junaid. The letter instructing the report did not inform Dr Junaid that the pursuer's Notified Occupation within the meaning of the insurance policy was that of managing director of Elite, but rather described his "own occupation" as simply that of a "company director". Dr Junaid reported that the pursuer's symptoms were of a sufficient degree of severity to prevent him from performing his pre-disability occupation; that he was disabled by virtue of his severe depressive disorder from performing the occupation of company director; and that it was more likely than not that he would never again have the fitness required to undertake the occupation of company director. He offered no view on the pursuer's ability to perform his actual Notified Occupation of managing director of Elite, not having been informed by HSCL or the defenders that such was in fact the pursuer's Notified Occupation.

[7] In answer the defenders admit the examinations and reports and aver that neither Dr Whitehouse nor Dr Sherman was ever instructed by the defenders, under reference to the relevant policy provisions, and in particular paragraph (sic) 4.4(b), to provide an opinion on whether or not the pursuer satisfied the policy conditions for receipt of TPD benefit. On 8 February 2001 the defenders were advised by agents acting for the pursuer that Dr Whitehouse had stated that the pursuer's depressive disorder could not be considered to be permanent and irreversible and that the pursuer was working on four days per week for about six to seven hours per day on behalf of the company. On 25 June 2001, through his General Practitioner, Dr Shipman, the pursuer sought to be referred to Dr Whitehouse as a private patient. By letter dated 6 July 2001 Dr Whitehouse wrote to Dr Shipman advising that he did not see private patients and suggested that Dr Shipman should approach a consultant psychiatrist in the Burton-upon-Trent area for private treatment for the pursuer. By letter dated 16 July 2001 Dr Shipman wrote to Dr Sherman requesting him to see the pursuer as a private patient and Dr Sherman agreed. When the pursuer was again assessed by Dr Sherman on 10 October 2001 he reported that his mental health had improved considerably. He told Dr Sherman that his mood was much brighter, that he was sleeping better and felt much less tired, that his appetite and libido had improved, that he was able to enjoy everyday activities and that he was working full-time and coping without any real difficulty. When the pursuer saw Dr Whitehouse on 19 October 2001 he told him that he continued to experience low mood and felt that life was not worth living, that he still experienced suicidal thoughts, that his sleep remained disturbed, that his appetite was poor, that he had no interest in his usual activities, that he preferred to be alone and was irritable in company, that his memory and concentration remained poor, and that his business was being run by his deputy but that he went in on three occasions per week to check that things were running smoothly. On the basis of the information provided by the pursuer Dr Whitehouse expressed the opinion that the pursuer continued to suffer from a chronic depressive disorder as evidenced by low mood, sleep disturbance, loss of interest in usual activities, suicidal ideas, fatigue and poor memory and concentration and that the depressive disorder was permanent and irreversible and that there was no reasonable prospect of the pursuer being fit to continue with his job as managing director. In his report to the defenders dated 19 March 2002 Dr Sherman made no mention of his assessment of 10 October 2001 but said he had seen Dr Whithouse's report of 5 November 2001 in which Dr Whitehouse had accepted as true what he had been told by the pursuer. Dr Whitehouse did not take into account what the pursuer had told Dr Sherman on 10 October 2001. Subsequent to Dr Sherman's report of 19 March 2002 the pursuer acted as managing director of Elite. He agreed to a request from the defenders by letter dated 17 July 2002 to attend an independent medical tribunal and the defenders arranged through HSCL for him to be seen by Dr Ola Junaid, Consultant Psychiatrist. By letter dated 26 July 2002 HSCL provided Dr Junaid with a definition of disability for the purposes of TPD benefit and instructed him as an Independent Medical Specialist (sic) to provide an opinion on whether or not the pursuer satisfied the conditions for receipt of TPD benefit. Dr Junaid had not previously treated the pursuer for the condition giving rise to his claim under the policy. Dr Junaid saw the pursuer on 16 September 2002. His opinion was that the pursuer did not meet the conditions for receipt of TPD benefit because, first, he was not wholly unable to perform his Notified Occupation at the date of the examination, and, secondly, any disablement from which he had been suffering could not be said to be permanent and irreversible at the time of the examination. Dr Junaid advised the defenders that depressive disorders are by their nature not permanent and not irreversible. Around 50% of people with the type of depression suffered by the pursuer can be expected to recover within five years and 80-90% within ten years. Having received Dr Junaid's opinion, the defenders by letter dated 20 November 2002 wrote to the pursuer advising him that he did not satisfy the policy conditions for receipt of TPD benefit. When seen by Dr Junaid on 16 September 2002 the pursuer claimed falsely to be working for the company for "a few hours" per week "just to see what is happening". In fact he spent a considerable time each week working for the company. (There then follow averments of specific periods worked by the pursuer on 16, 17 and 18 September and 11, 12 and 13 December 2002.) On the basis of what he was told by the pursuer Dr Junaid reported to the defenders that the pursuer was performing some aspects of his Notified Occupation, namely, supervising the works manager's work, monitoring the progress of the company's work and checking time sheets. Dr Junaid also advised that the pursuer would benefit from at least weekly cognitive behavioural therapy or dynamic psychotherapy.

[8] The defenders go on to explain that Doctors Whitehouse and Sherman were both consulted by the pursuer and that the defenders, with the pursuer's agreement, requested them to provide information to enable the defenders to consider the pursuer's claims for TPD benefit. On 28 June 2000 and 28 July 2001 the pursuer gave his written consent (prepared by the defenders) to applications by the defenders for medical reports from doctors whom he had consulted. The written consent contained the following statement by the defenders: "To enable us to deal with your claim it will be necessary for us to obtain confirmation of your medical history from all doctors who have attended you." On 16 July 2001 the pursuer's GP, Dr Shipman, asked Dr Sherman to see the pursuer as a private patient. Dr Sherman first assessed the pursuer on 1 August 2001 at the East Midlands Nuffield Hospital and thereafter sent a report dated 14 August 2001 to Dr Shipman. The pursuer was a patient of Dr Sherman between 1 August 2001 and 19 March 2002 (when Dr Sherman reported to the defenders). Dr Sherman saw him at the East Midlands Nuffield Hospital on 10 October 2001 and sent a report to Dr Shipman on 23 October 2001 in which he stated that the pursuer was working full time and was coping without any real difficulties. On 15 November 2001 the pursuer's solicitors sent to the defenders a copy of Dr Whitehouse's report of 5 October 2001. On 5 December 2001 the defenders wrote to Dr Shipman stating that they had been advised that the pursuer had been referred to Dr Sherman and requesting information about the date of the referral and sight of all reports from Dr Sherman to Dr Shipman. Subsequently, on 4 January 2002 a claims assessor with the defenders wrote to Dr Sherman in the following terms: "I understand that Mr Hawkins has been under your care and I would be grateful for your assistance. Please provide a report on Mr Hawkins' condition and include copies of any specialist reports. I have enclosed a copy of the client's signed authority to issue this information to us." In response to that request Dr Sherman prepared his report of 19 March 2002 in which he omitted to mention his review of 10 October 2001 or the terms of his report of 23 October 2001 to Dr Shipman.

[9] The defenders conclude this answer by averring that they did not ask Dr Sherman to provide them with his opinion as to whether or not the pursuer satisfied the policy conditions for receipt of TPD benefit and that they first sought such an opinion from Dr Junaid, to whom they provided the policy wording. Under the terms of the parties' contract payment of any policy benefit is conditional upon the claimant providing reasonable proof, which is satisfactory to the defenders, of the occurrence of the condition on which the particular benefit is payable. They refer to Section 1.3 of the Standard Provisions. On the basis of the whole information currently available to them, they do not regard the conditions on which TPD benefit is payable to have been satisfied.

[10] In reply to these averments by the defenders the pursuer admits the various examinations and reports and that Dr Whitehouse was never instructed by the defenders to provide an opinion on whether or not the pursuer satisfied the policy conditions. He also admits that he gave his written consent on 28 June 2000 and 18 July 2001 to the defenders' applications for medical reports from doctors he had consulted and the defenders' averments about his work activities on 16, 17 and 18 September and 11, 12 and 13 December 2002. He explains that the defenders have been provided with the opinions of three separate consultant psychiatrists who are all of the view that he has no reasonable prospect of recovering sufficiently from his condition to enable him to perform his Notified Occupation, that Dr Whitehouse and Dr Sherman are both consultant psychiatrists with considerable experience in the diagnosis and treatment of mental disorder, that neither had treated the pursuer before his referral for assessment for the purpose of preparation of a report to the defenders on his mental condition and that Dr Whitehouse assessed him at the request of his own solicitors and has never treated him for his condition. He further explains that he was initially referred to Dr Sherman by the defenders for assessment of his condition and then, at his own request, he was treated by Dr Sherman for the condition which he had assessed. The opinions which Drs Singhal, Whitehouse and Sherman each provided were the considered result of their expertise in the field to the clinical observations which they made of the pursuer and their knowledge of his treatment history.

(ii) Defenders' first submission
[11] Mr Peoples for the defenders began his attack on the pursuer's averments on indemnity by submitting that there was a danger in focusing on one particular provision of the contract rather than on its provisions as a whole. The pursuer's right to indemnity depended not only on medical opinion, but also on the other factual material available to the insurers. It was for the insurers to reach a decision on the validity of the claim. They were entitled to seek information from a treating doctor without being locked into his opinion. It was necessary to ask what exactly the insurers had asked the doctor in question to do. It was insufficient for the pursuer to seek to prove that the defenders had requested a medical report from Dr Sherman. The defenders' letter to Dr Sherman dated 4 January 2002 (no 6/10 of process) was in the following terms:

"I refer to the above named Life Assured and would be pleased to receive your assistance.

I understand that Mr Hawkins has been under your care and I would be grateful for your assistance. Please provide a report on Mr Hawkins (sic) condition and include copies of any specialist reports.

I have enclosed a copy of the clients (sic) signed authority to issue this information to us along with a pre Paid envelope for your use. Please also provide a note of your fee.

In the meantime, please do not hesitate to contact me if you have any queries regarding this matter."

[12] There was no reference in that letter to the qualifying conditions in the policy for TPD benefit. What Dr Sherman said in his subsequent report was in a sense neither here nor there. The question which had to be asked was: what was he asked for? The terms of the letter to Dr Sherman had to be contrasted with the terms of the letter of 26 July 2002 from HSCL to Dr Junaid (no 6/13 of process), which is in the following terms:

"Thank you for agreeing to see Mr Hawkins on 16.09.2002, at 9.30 am.

Please find enclosed the medical reports relating to the claimant.

The definition of disability as applying to the claimant's policy is:

'The Life assured, whilst having his notified occupation as his remunerated occupation, becomes disabled due to accident or sickness arising prior to his 65^th birthday, to the extent of being wholly unable to perform his notified occupation, and, (sic) the disablement is permanent and irreversible, there being no reasonable prospect that the life assured will ever again have the fitness required to undertake his notified occupation.'

I would be grateful if you could provide a report, (sic) regarding:

The claimants (sic) present condition?
What symptoms is the claimant suffering from? What is their severity and frequency?
What is preventing the claimant from performing his pre-disability occupation?
What in your opinion is the extent of the claimant's depression and anxiety?
Exactly how debilitated is the claimant?
What treatment is the claimant currently receiving? Do you find this to be adequate?
What recommendations do you have for the future management/treatment of the claimant?
In your opinion, is the claimant able to perform his own occupation of Company Director?
Is the claimant motivated to make a return to work?
When do you feel the claimant will be able to make a return to work?
Is the claimant disabled within the terms of his policy?

If you feel it necessary to recommend surveillance on this client please could you do so under separate cover.

I look forward to receiving your report."

[13] It was not enough for the pursuer to aver that the defenders requested Dr Sherman's report. He failed to aver that Dr Sherman had been asked by the defenders to give his opinion on whether the policy conditions had been satisfied. The letter of 4 January 2002 did not on any view provide a factual foundation capable of establishing that Dr Sherman was asked by the defenders to provide advice to them on whether the pursuer satisfied the policy conditions for receipt of TPD benefit. That letter was written to Dr Sherman on the understanding that the pursuer had been under his care and asked him for a report on the pursuer's condition, enclosing the pursuer's written consent to the issuing of the information requested. It made no reference to the policy, in particular to Section 4.4(b), and did not seek from Dr Sherman his opinion on whether the pursuer satisfied the policy requirements for receipt of TPD benefit. To look at the contents of Dr Sherman's report was to approach the question from the wrong starting point.

(iii) Pursuer's first submission
[14] Mr Sandison, in moving that decree de plano should be granted in terms of the first conclusion, submitted that the question was whether on a proper construction of the contract the event requiring payment had come to pass. It was therefore appropriate to consider the principles of construction which fell to be applied. Reference was made to MacGillivray on Insurance Law (10^th Ed, 2003), chapter 11, which deals with the construction of policies. Para 11-1 (General rules) at p 277 states:

"Insurance policies are to be construed according to the principles of construction applicable to commercial contracts generally, and there are no peculiar rules of construction applicable to the terms and conditions in a policy which are not equally applicable to other mercantile contracts. The task of a tribunal endeavouring to interpret the contract of insurance is to ascertain the intention of the parties in relation to the facts in dispute. Such intention is, however, to be gathered from the wording of the policy itself and from the wording of any other documents which may be incorporated with it...."

Para 11-2 (Previous interpretation) at p 278 states:

"The first and overriding consideration in construing any phrase or form of words in a policy is to inquire whether these have been the subject of any prior decision by a court. The proper construction to be placed on words is a matter of law for the court."

Para 11-6 (Ordinary meaning) at p 279 states:

"There is a presumption that the words to be construed should be construed in their ordinary and popular sense, since the parties to the contract must be taken to have intended, as reasonable men, to use words and phrases in their commonly understood and accepted sense ...... It follows that, if a word or phrase has an accepted popular meaning, that meaning should prevail rather than a more limited scientific or technical meaning unless the context demands the latter."

Para 11-7 (Businesslike interpretation) at p 280 states:

"It is an accepted canon of construction that a commercial document, such as an insurance policy, should be construed in accordance with sound commercial principles and good business sense, so that its provisions receive a fair and sensible application."

Para 11-11 (Implied terms) at p 282 states:

"Where a policy does not by its express terms cover a situation which has arisen, it is permissible to imply a term which does cover those facts if either the proper inference from the reading of the policy as a whole is that the parties would have expressed themselves if they had addressed their minds to the possibility of those particular facts arising, or on the grounds that it was necessary for the business efficacy of the contract. A court will not imply a term into a contract merely because the contract might be considered more reasonable as a result, but no term will be implied unless it is reasonable."

"You will appreciate from the above that the benefit is due only if the disability claimed for is permanent. The medical information from your Consultant, Dr Singhal, indicates that at this time, (sic) treatment for your illness is ongoing and that currently there can be no certainty regarding your prognosis.

In view of the above, we cannot reasonably agree that the policy definition is currently satisfied."

In that letter the insurers seemed to be treating Dr Singhal as an Appropriate Medical Specialist. They were saying only that his opinion did not meet the test, not that he could not be considered by them to be an Appropriate Medical Specialist. In reality the policy conditions had been met by Dr Singhal's letter of 27 September to the insurers (no 6/6 of process) in which he stated: "He has suffered from a severe depressive illness. His present condition is such that I do not see a reasonable prospect of him returning to his previous occupation in the foreseeable future." The policy conditions were also met by the opinion expressed in Dr Whitehouse's report of 5 November 2001 (no 6/7 of process), in which he stated that he considered the pursuer's depressive disorder to be permanent and irreversible and there to be no reasonable prospect of him being fit to continue with his job as Managing Director. There was no response by the defenders to that report, but they then requested a report from Dr Sherman by their letter of 4 January 2002, the relevant part of which has been quoted above. The response to that request was Dr Sherman's report of 19 March 2002, in which he gave his opinion that the pursuer was permanently disabled as a result of his chronic depressive disorder, that his condition was irreversible and that it was extremely unlikely that he would be well enough to return to his job as managing director of his company. Accordingly, for the third time the conditions for payment under the policy had been met. The only thing that could be said against the foregoing was contained in the report of Dr Junaid (no 6/14 of process). In the last paragraph of that report Dr Junaid stated as follows:

"Mr David Hawkins is disabled by virtue of his severe depressive disorder from performing the occupation of Company Director. He is not wholly unable to perform this occupation. Depressive disorders by their nature are not permanent and not irreversible. However he has received high dose antidepressant therapy with Lithium augmentation for a considerable period of time in addition to having ECT. He remains profoundly depressed and it is more likely than not that he will never again have the fitness required to undertake the occupation of Company Director."

It was on the basis of that report that the defenders had refused the pursuer's claim, but Dr Junaid had misunderstood the legal meaning of the expression "wholly disabled". (I interpose that the expression used in Section 4.4(b) is "wholly unable to perform his Notified Occupation", but I do not think that the slight difference in wording is of any significance.) In Hooper v The Accidental Death Insurance Company (1860) 5 H & N 546 a policy of insurance against accident contained a proviso that "that in case such accident shall not cause the death of the insured immediately, but shall cause any bodily injury to the insured of so serious a nature as wholly to disable him from following his usual business, occupation or pursuits, the Company will pay to the insured a compensation in money at the rate of 5l per week during the continuance of such disability". The insured, a solicitor and registrar of a county court, sprained his ankle severely, and was confined to his bedroom for some weeks, being unable to get down stairs. He was prevented from passing his accounts as registrar and from attending at various places at which he was required to complete purchases for his clients. The Court of Exchequer, whose judgment was later affirmed by the Court of Exchequer Chamber, held that, inasmuch as the plaintiff was so disabled as to be incapable of following his usual occupation, business or pursuits, he was "wholly disabled from following his usual occupation, business or pursuits" within the meaning of the policy. Pollock CB stated at 555-557:

"The plaintiff met with a serious sprain of the ankle, in consequence of which he was unable to leave his room for some weeks, and was confined to the house for some time longer. During that time it is clear that he was 'disabled from following his usual business, occupation or pursuits'. Was he 'wholly' disabled? In the course of argument Mr Chambers admitted that if the plaintiff had been a dancing master he would have been within the meaning of this policy. There is no sound distinction between the case of a dancing master and that of the plaintiff, who is an attorney. For though a dancing master with a sprained ankle cannot dance, he may play upon an instrument and instruct other people how to use their limbs in dancing. In the case of an attorney, even if he were prostrate upon his bed, deprived of sense and motion; if he had lost all consciousness and power of interference, in one sense, and to some extent, he might carry on his usual business and occupation; for, even if he were without a partner, the business would not necessarily be stopped, but might be carried on by his clerks. It cannot have been contemplated that in such a case no compensation should have been paid. We must therefore endeavour to find out what is the true meaning of the language used in the policy. It may well be that the sense intended to be conveyed was, that if the person insured should be wholly disabled from carrying on his business as he usually carried it on, the Company would be liable. That is the case here: the plaintiff might and could have done something which he was in the habit of doing before, but he was wholly incapable of doing that which he did before. If a man is so incapacitated from following his usual business, occupation or pursuits as to be unable to do so, he is 'wholly disabled' from following them. His 'usual business and occupation' embrace the whole scope and compass of his mode of getting his livelihood. If it be objected that this construction would lead to the result that a person slightly incapacitated would get the same compensation as one entirely incapacitated from doing anything whatever, that is the fault of the defendants in using language of a vague and perplexing character. It appears to us that they intended that when the insured was wholly incapable of performing a very considerable part of his usual business he should receive compensation in respect of that disablement. If it were necessary to resort to such a rule of construction (which I think it is not) in construing this policy, that construction must be adopted which is most advantageous to the insured. I think, however, that putting a reasonable construction on the language used, the parties must have meant that if the insured was so disabled as to be incapable of following his usual business, occupation or pursuits, he would be 'wholly disabled from following his usual business, occupation or pursuits', and entitled to the stipulated compensation."

Both Dr Junaid and the defenders were wrong in law in stating that the pursuer was not wholly unable to perform his occupation. Four consultant psychiatrists were effectively saying the same thing and the conditions for the claim were long ago met. There was no dispute about the sum payable as at 19 March 2002. So far as interest was concerned, Mr Sandison was quite happy to amend by adding at the end of conclusion 1 "or from such other date or at such other rates as to the court may seem fit" in order to cover a possible decision by the court that the pursuer was entitled to indemnity from a date other than 19 March 2002.

(iv) Defenders' second submission
[16] Mr Peoples stated that he did not quarrel with any of the principles of construction relied upon by Mr Sandison and that nothing in his (Mr Peoples') first submission conflicted with them. It was the pursuer who was taking an unnatural meaning from the words used. Mr Sandison had focused very much on Section 4.4(b), but it was necessary to look at the policy provisions as a whole in order to give them meaning. The meaning of the expression "Appropriate Medical Specialist" for which the defenders contended was a much more natural one than that for which the pursuer contended. The pursuer sought to re-write the definition to suit himself. The contention that the Appropriate Medical Specialist was the arbiter of the claim flew in the face of Sections 1.3 and 4.7(e). If the pursuer was correct, any suitably qualified doctor proffering an opinion in favour of the pursuer based on information provided by the pursuer became an Appropriate Medical Specialist and it did not matter how many contrary opinions there were. It would be very surprising for insurers to do business in that way. If the pursuer was correct, the defenders need have no involvement in approaching the Appropriate Medical Specialist and indeed need never have requested a report from anyone. That was wrong. The defenders were able to invoke the principles of construction of insurance policies even more than the pursuer. Section 1.3(iii) was a proof of claim clause. Such a clause was not an unusual provision in an insurance contract: see MacGillivray at pages 772-3, paras 25-92 and 25-93. It was not settled what total disability involved: MacGillivray at p 755, para 25-48. On the pursuer's construction no amount of medical examination by the defenders would matter and clause 1.3(iv) would have no content. If the pursuer's submission that the defenders could go behind a medical opinion only on the basis of fraud were correct, that would mean that the pursuer could benefit from carelessly incorrect information contained in such a report. It was open to the insurers to consider the general information which they had (as opposed to the contents of a medical report) in order to reach a decision on proof of the claim. In any event, even if the pursuer had pleaded a relevant case, there would have to be an inquiry. Dr Junaid's opinion was an opinion which did not support the claim. This was not a case where decree de plano could be granted. If the factual basis of a medical opinion were wrong the defenders were entitled not to act upon it. The opinion of a medical specialist was not the sole evidence the insurers were entitled to consider. They were entitled to consider the underlying facts upon which a medical opinion was based. Hooper was not a dispute about the underlying facts, but a case involving the application of the law to those facts. Whether someone had a partial or total disability was a matter of fact and degree. It was not accepted that Dr Junaid erred in law in saying that the pursuer was "not wholly unable to perform" his occupation. There was evidence in the form of statistical material to support the proposition that he was not "wholly unable" to perform his occupation. The policy provisions about interest did not help the pursuer as there could be no Qualifying Date until there was a valid claim.

(v) Pursuer's second submission
[17] Mr Sandison submitted that Mr Peoples had sought for obvious reasons to play down that the insurers had bound themselves to pay if an Appropriate Medical Specialist had given an appropriate medical opinion. There were other provisions in the policy dealing with the insurers being satisfied, but the policy also dealt with other types of insurance. A specific provision took precedence over a more general provision. Section 1.3(iv) referred to "any medical examination that the Company may have required". The Appropriate Medical Specialist was acting as an arbiter, not an expert. It was not being suggested that the insurers had no role in deciding whether to pay out under the policy: they had to consider whether the medical practitioner was "qualified to give such expert diagnosis, opinion or assessment" (Section 1.1). Nothing had been said against the qualifications or suitability of any of the pursuer's consultant psychiatrists: for example, it was not suggested that any of them was a maverick with extreme views. The concession by Mr Peoples that it was possible to have the report by the Appropriate Medical Specialist before the claim was made undermined his submission about the pursuer's psychiatric reports, all of which said that the pursuer had no reasonable prospect of getting better. Nothing said by Mr Peoples distinguished the decision in Hooper. A person who could not do all of his normal duties was wholly disabled from doing his job. Hooper had not been overtaken by any subsequent decision: MacGillivray at p 755, para 25-48.

(vi) Discussion
[18] The pursuer's case on record, put shortly, is that Dr Sherman's report of 19 March 2002 triggered his right to indemnity under the policy as Dr Sherman was an Appropriate Medical Specialist in terms of Section 1.1 who had given an opinion which entitled the pursuer to TPD benefit in terms of Section 4.4(b). The pursuer's case in submissions at procedure roll ranged much wider and appeared to be that not only did Dr Sherman's report of 19 March 2002 entitle him to TPD benefit but so also did the reports of Dr Singhal dated 2 and 27 September 2000, the report of Dr Whitehouse dated 5 November 2001 and the report of Dr Junaid dated 8 October 2002. If Mr Sandison had confidence in his submission on this point I cannot understand why he chose to aver the Qualifying Date as being the date on which Dr Sherman expressed his opinion, and not either of the earlier dates on which Doctors Singhal and Whitehouse expressed their opinions. In my opinion the question whether the opinion expressed in any of these reports entitles the pursuer to indemnity under the policy depends upon the construction of Sections 1.1, 1.3 and 4.4(b). Section 4.4(b), in my view, confers upon "an Appropriate Medical Specialist" the jurisdiction to determine whether the insured has TPD as defined in that provision. If the Appropriate Medical Specialist is of the opinion that the insured has TPD then, in terms of that Section (and contrary to the submission of Mr Peoples), the insurers "will consider" the insured to have TPD. In other words, the insurers have no discretion not to accept the opinion of an Appropriate Medical Specialist that the insured has TPD. The definition of Appropriate Medical Specialist is given in Section 1.1. He must be "a medical practitioner considered by the Company to be qualified to give such expert diagnosis, opinion or assessment as it may require". In my opinion, contrary to the submission of Mr Sandison, the words "as it may require" obviously mean "as the Company may require", so that the effect of Section 1.1 is that the insurers must require the diagnosis, opinion or assessment and they must require it from a medical practitioner whom they consider qualified to give it. It follows that if the opinion has been required by someone other than other than the insurers, such as the insured himself or his agent, it is incapable of being the opinion of an Appropriate Medical Specialist in terms of Section 1.1. Accordingly, I am of the view that Dr Whitehouse, whose opinion was not required by the defenders, cannot be regarded as an Appropriate Medical Specialist in terms of Section 1.1.

[19] The next question is what the content of the opinion of the Appropriate Medical Specialist must be before the insurers will consider the insured to have TPD. What the content of the opinion must be is set out in sub-sections (i) and (ii) of Section 4.4(b). It seems to me that before the Appropriate Medical Specialist can express such an opinion he must be made aware of the exact terms of Section 4.4(b). Put another way, he must have conferred upon him the jurisdiction to determine whether the requirements of sub-sections (i) and (ii) of Section 4.4(b) are satisfied. If he gives an opinion that those requirements are satisfied, then the insurers will consider him to have TPD. In my view, although Doctors Singhal and Sherman was instructed by the defenders, they did not, having regard to the content of the claims pro forma (no 6/4 of process) sent to Dr Singhal for completion and the letter of instruction from the defenders to Dr Sherman dated 4 January 2002 (no 6/12 of process) have the necessary jurisdiction conferred on them in terms of Section 4.4(b). All that the defenders were doing when they sent that pro forma to Dr Singhal and wrote that letter to Dr Sherman was obtaining information about the pursuer's condition. The information provided by Dr Singhal in the pro forma and the opinion expressed by him in his subsequent letter of 27 September 2000 (no 6/6 of process) and the opinion expressed by Dr Sherman in his report of 19 March 2002 cannot, therefore, on any possible view satisfy the requirements of Section 4.4(b).

[20] For the above reasons I reject the pursuer's contention that the reports of Doctors Singhal, Whitehouse or Sherman are opinions of Appropriate Medical Specialists which satisfy the requirements of Section 4.4(b)(i) and (ii).

[21] There remains to be considered the opinion expressed by Dr Junaid in his report of 8 October 2002. It is not disputed that Dr Junaid was an Appropriate Medical Specialist and that the necessary jurisdiction was conferred on him in terms of Section 4.4(b) by the defenders' letter of 4 January 2002 (no 6/12 of process). The defenders found upon his opinion as set out in the last paragraph of his report as the basis for refusing indemnity. In answer 5 at page 24B-D they aver: "In the opinion of Dr Junaid the pursuer did not meet the policy requirements for receipt of TPD (sic) because, firstly, he was not wholly unable to perform his Notified Occupation at the date of Dr Junaid's examination and, secondly, because any disablement from which the pursuer had been suffering could not be said to be permanent and irreversible at the time of Dr Junaid's examination of the pursuer." I am of the view that in those averments the defenders have selectively focused on only two sentences in the last paragraph of Dr Junaid's report. They do not mention the first sentence of that paragraph in which it is stated that he is disabled by virtue of his severe depressive disorder from performing the occupation of company director. Nor do they mention the last sentence in which it is stated that he remains profoundly depressed and that it is more likely than not that he will never again have the fitness required to undertake the occupation of company director. It seems to me that, on the face of it, the opinion expressed by Dr Junaid in the last paragraph of his report is unclear and self-contradictory. On one reading of it he is saying that the pursuer does not meet the conditions set out in section 4.4(b), while on another reading he is saying that he does meet them. As his opinion stands, I am not prepared to say that it entitles the defenders to reject the pursuer's claim. Nor am I prepared to say that it entitles the pursuer to indemnity. It is, in my view, impossible to say on the basis of the last paragraph of his report exactly what opinion Dr Junaid is expressing under Section 4.4(b). An additional problem may arise from the fact that Dr Junaid was told that the pursuer's occupation was company director, as opposed to managing director of Elite. I consider that Dr Junaid's opinion will require clarification and that that exercise will require to be carried out at a restricted proof before answer.

DAMAGES FOR BREACH OF CONTRACT

(i) The Pleadings
[22] In condescendence 7 the pursuer avers that the defenders' failure to pay the sum assured on or around 19 March 2002, when it became payable, was a material breach of the terms of the insurance contract on their part as a result of which he has suffered loss and damage. In order to attempt to provide a living for himself, his wife and children, he continued after the defenders' refusal to meet their obligations under the insurance contract to attempt to engage himself in the business of Elite. The person who had been managing director in his stead left the company and the pursuer attempted to carry out the functions which he had previously performed as such, despite being wholly unable to do so. He continued to be unable to perform those functions, and, as a result of his inability to manage it in any effective manner at all, the business suffered heavy trading losses, whereas before his illness it had been profitable. In order to attempt to support the business he required to remortgage the family home to the extent of £25,000, to sell shares and investements worth £14,000, to inject cash to the extent of £24,000 and to give up as security for the business his share in an industrial unit worth about £100,000. (These sums amount in total to £163,000, which is the sum sued for in the second conclusion.) Had the defenders paid out the sum assured as and when they ought to have done the pursuer would have sold the business as a going concern in the Spring or early Summer of 2002 and not incurred these losses. Pegasus knew or ought reasonably to have known at the time it entered into the insurance contract with the pursuer that he would be likely to suffer losses of the kind in fact suffered by him if it refused or delayed to make a payment to the pursuer to which he was entitled in terms of the Occupational Disability (Own Occupation) provision of the contract. It was aware that he was the managing director of Elite, that the company was owned by him and his wife, that he was a key individual within the business without whose continuing efforts the business would suffer and potentially cease, that he had given an unlimited director's guarantee to Elite's bank to cover its overdraft and loan facility, and that his purpose in taking out the insurance policy was to secure in the event of his inability to perform his functions as managing director of Elite a sum sufficient to cover the estimated liabilities of Elite and to leave enough left over to provide for the education of his children. Pegasus knew of all these matters because they were expressly disclosed to it in a financial questionnaire dated 25 September 1996 (no 6/15 of process) which it required the pursuer to complete and return to it before agreeing to enter into the insurance contract with him.

(ii) Defenders' first submission
[23] Mr Peoples submitted that the claim contained in condescendence 7 was irrelevant and should be refused probation. It arose out of an alleged failure by the defenders to pay the sum assured on or around 19 March 2002. The general rule of law is that damages are not due for failure to pay money on the due date. The creditor's entitlement is to sue for payment of the debt and, if entitled to interest as a matter of contract or alternatively by operation of law, for payment of a sum by way of interest: Gloag on Contract (2^nd Ed), pages 680-681. In Stephen v Swayne (1861) 24D 158 Lord President McNeill stated at p 163:

"It is a general rule that consequential damages are not due for inconvenience or loss arising in consequence of non-payment of a debt."

The pursuer set forth on record no circumstances which, if proved, would displace or avoid application of the general rule. In particular, there were no averments which, if proved, would entitle the court to hold that the defenders, if in breach of contract in not paying the sum assured on the due date, ought reasonably to have had in contemplation, when the contract was entered into in 1996, that the pursuer was liable as a consequence of such breach to suffer loss of sums invested by him, some time after 1996, in the business of Elite. The provision of the information mentioned in 1996 did not make what happened reasonably foreseeable.

(iii) Pursuer's first submission
[24] Mr Sandison submitted that the claim for damages in condescendence 7 should be sent to proof. There had been a breach of contract by the defenders by their failure to meet their obligation to pay the assured sum. Under Section 3.5 the obligation to pay the insured sum arose on the Qualifying Date, which was 19 March 2002. The notion that only interest was due for breach of contract by reason of late payment had not survived the end of the twentieth century: Hadley v Baxendale (1845) 9 Exch 341; McBryde on Contract (2^nd Ed), para 22-84. In Wadsworth v Lyall [1981] 1 WLR 598 Brightman LJ, who gave the principal judgment, said at p 603:

"If a plaintiff pleads and can prove that he has suffered special damage as a result of the defendant's failure to perform his obligation under a contract, and such damage is not too remote on the principle of Hadley v Baxendale (1854) 9 Exch 341, I see no logical reason why such special damage should be irrecoverable merely because the obligation on which the defendant defaulted was an obligation to pay money and not some other type of obligation."

In President of India v Lips Maritime [1988] 1 AC 395 Neill LJ stated at p 406G:

"In principle it is difficult to see why in an appropriate case damages should not be recoverable for a late payment of money in the same way as damages are recoverable for the late delivery of a chattel."

In the present case the knowledge of the defenders at the time of inception of the contract was to be found in the answers given by the pursuer in the financial questionnaire no 6/15 of process. They knew the pursuer was the key man in Elite, that he owned Elite, that he had given unlimited guarantees and that one reason for the policy was to clear off liabilities. It may be that the precise mechanism of the losses being sustained was not reasonably foreseeable, but the question was whether what he did by putting money into Elite was or was not a reasonable mitigation of his loss. The relevancy of the averments was no longer in doubt and they should go to proof.

(iv) Defenders' second submission
[25] Mr Peoples responded by saying that, although he was relying on the general principle, he was submitting that the pursuer had to aver enough to take him outwith the general principle. It was the claim for damages over and above the claim for interest that was under attack. In conclusion 1 the pursuer was suing for the sum he needed to have provided to him for not following his occupation: in conclusion 2 he was asking for further sums for things that happened in 2002. As the defenders would be paying out under conclusion 1 on the basis that the pursuer could not work for Elite, they therefore could not at the same time be called upon to pay out for losses incurred by him as a result of his going back to work. It could not be reasonably foreseeable that a man who was unable to work would go back to work to do work he was supposedly unable to do. He could not have it both ways. It came down to a question of duplication. Payment of the claim under conclusion 1 would be on the basis that he could not work, whereas payment of damages under conclusion 2 would be on the basis that he was still involved with Elite.

(v) Pursuer's second submission
[26] Mr Sandison accepted that a claim for interest was different from a claim for damages. There was no recent Scottish authority which discussed damages for late payment of money, but if the claim for damages fell within the second head of Hadley v Baxendale damages could be recovered for late payment of money. In this case the contract said that the pursuer would receive £X on the Qualifying Date if a certain state of affairs existed. If he was not paid £X, there was a further and distinct wrong sounding in damages. Bearing in mind the legal meaning of "wholly disabled" (sic), it was not inconceivable that the pursuer would try to carry out some of his duties. The losses were incurred when he was trying to run Elite while not fit to do so. Although the averments in condescendence 7 were relevant, it was conceded that they would require to go to proof.

(vi) Discussion
[27] In my opinion the general question of law which arises is that of the admissibility of the claim for damages for breach of contract. That general question is whether insurers can be liable in damages for consequential loss suffered by an insured as a result of their unreasonable delay to pay the sum assured as well as for interest on the sum assured. Had this policy been governed by English law, there would have been no doubt that the answer to that question would have been in the negative. The answer in England is to be found in para 19-70 of MacGillivray, to which neither counsel referred, and which is in the following terms:

"English law does not allow an action by an assured against an insurer to recover damages for consequential loss caused by the insurer's unjustified refusal to pay a valid claim. This is based on a combination of two separate rules. First, the cause of action for payment of an indemnity is analysed as one for payment of unliquidated damages. The insurer is said to be in breach of a promise to hold the assured harmless against loss caused by an insured peril as from the time of its occurrence, regardless of when a claim is made or rejected. The second rule is one of the law of damages, namely that there can be no cause of action for damages for late payment of damages. The assured's sole remedy is an award of interest, which in serious cases is inadequate compensation."

That passage cannot be taken as representing the law of Scotland for, as Lord Keith of Kinkel remarked in Scott Lithgow Ltd v Secretary of State for Defence 1989 SC 9 at p 20 "Scots law has not adopted the English view that the right of action in the event of non-payment under a policy of insurance is one for unliquidated damages". In Scots law the obligation of the insurers is classified as implement of the contract by payment of the sum due under the policy.

[28] Contrary to the confident assertion of Mr Sandison, there are recent Scottish authorities which discuss damages for late payment. In Margrie Holdings Ltd v City of Edinburgh District Council 1994 SC 1 the First Division accepted that there could be a class of case in which special circumstances known to the obligant might justify the court in awarding damages beyond interest where money was withheld. In Alonvale Ltd v Ing (1993 GWD 36-2345, 14 October 1993) Lord Penrose held that, with adequate averments, a pursuer claiming for payment of an assured sum could prove damage beyond loss of interest on either branch of the tests in Hadley v Baxendale. In Strachan v The Scottish Boatowners' Mutual Insurance Association (31 May 2001, unreported) Lord Eassie allowed a proof before answer on the insured's claim for damages against the insurers based on wrongful denial of indemnity: see his discussion at paras 30-42. I refer also to the illuminating discussion of the admissibility of such a claim in Clarke, The Law of Insurance Contracts (Looseleaf Ed, 1999) at para 30-9B, in which the law on this question in different jurisdictions is discussed. The weight of judicial opinion in Scotland is, therefore, in favour of the admissibility of a claim for damages for unjustified refusal to pay a sum assured if the second branch of the test in Hadley v Baxendale is satisfied. At the end of the day I did not understand Mr Peoples to demur from such a proposition: his submission concentrated on the point that the pursuer's averments in condescendence 7 could not on any view bring the case within the second branch of the test in Hadley v Baxendale. I therefore turn to consider whether the averments in condescendence 7 are capable of bringing the pursuer's claim for damages based on the defenders' refusal to pay the sum assured within the second branch of the test in Hadley v Baxendale.

[29] It seems to me that on no conceivable view can it be said that the losses claimed in condescendence 7 were such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it so as to fall within the second branch of the test in Hadley v Baxendale. In that case Alderson B said at p 354:

"Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated."

It is clear from the averments in condescendence 7 that the pursuer founds upon the completed financial questionnaire no 6/15 of process as constituting "the special circumstances under which the contract was actually made" communicated by him to the defenders. The information contained in that questionnaire provided the defenders with certain information about the pursuer's financial position at the time but I do not think it can be said that it placed the claimed losses within the reasonable contemplation of the defenders as the damages which would ordinarily follow from their breach of contract by failing to pay the sum assured on the due date. Ex hypothesi the obligation of the defenders to make payment under the policy could not arise until the pursuer was wholly unable to perform his occupation as managing director, and in my view, notwithstanding the decision in Hooper on the meaning to be attributed to the expression "wholly disabled", what can be said to have been in the reasonable contemplation of the defenders at the time they entered into the contract was the reverse of what the pursuer avers in condescendence 7, and was that the pursuer, far from doing what is averred in condescendence 7, would not be carrying out his occupation as managing director. I consider that Mr People's submission in this respect was well-founded. In my opinion the averments in condescendence 7, on the assumption that the claim made therein is admissible, are for that reason irrelevant.

REPETITION
[30] In condescendence 8 the pursuer claims repetition of the sum of £2,671.56, being the total of the monthly premiums debited by the defenders from his bank account after 19 March 2002, which he claims was the Qualifying Date. The relevancy of these averments was not challenged by the defenders, but plainly success in this claim is dependent on success in the claim for payment of the sum assured and, in light of the view I have taken of that claim, the earliest Qualifying Date, and therefore the earliest date from which the pursuer would be entitled to repetition, would be 8 October 2002. This claim will require to go to proof before answer along with principal claim.

DECISION
[31] For the reasons given above I shall sustain the first plea-in-law for the defenders to the extent of deleting the averments in condescendence 7 and the averments about Doctors Singhal, Whitehouse and Sherman being Appropriate Medical Specialists, and repel the third and fourth pleas and reserve the first plea for the pursuer. I shall otherwise allow a proof before answer restricted to clarification of Dr Junaid's opinion set out in the last paragraph of his report dated 8 October 2002 and the consequential claim for repetition in condescendence 8. Appropriate amendment to focus more clearly the issue now to be decided would obviously be of assistance.