Posted by Richard Brooks, Partner
Miley v. Friends Life – a typical story of an ME sufferer up against an insurer
Disputes relating to Personal Health Insurance (PHI) rarely go to court. However, this is just what happened in a recent case in the Court of Appeal. Why? Because it demonstrated the lengths insurers go to secure a positive result for themselves, which in this case was – thankfully – all to no avail.
This post was originally made by my retired partner, James Millar Craig and it is worth re-stating word for word. I have updated it because Friends Provident actually appealed the original decision. Thankfully for claimants and especially those with ME/CFS their appeal was thrown out.
The case centred on Mr Charles Miley who started work at an investment bank in 2006 and became entitled to insurance cover provided by a group policy. The policy was provided through a Permanent Health Insurance Scheme which was with the defendant, Friends Life, now run by Aviva.
Two years later, Mr Miley developed a chest infection. This turned out to be glandular fever, which led to him taking time off work due to his fatigue and a subsequent claim on his policy.
Everything was running normally until four years later Friends Life stopped paying out. They argued that he had misrepresented or overstated how ill he was. Mr Miley appealed, but was unsuccessful, and as such he brought court proceedings to recover the money that ought to have been due to him.
Friend’s Life tried to argue their case based on a few specific pieces of evidence:
- Miley’s testimony
- Insurance forms and questionnaires
- Paper records
- Surveillance (a common tactic by insurers)
- Expert testimony
Mr. Miley’s testimony and paper records
Forms filled out by Mr Miley, as well as statements to the Department of Work and Pensions (DWP) and medical professionals, were part of the reason why Friends Life decided to pursue a claim.
The judge noted that Mr Miley had recorded that he went on cycle rides, dealt with e-mails, did some socialising, occasionally went to the pub and painted the garage door. All things the defendant argued proved he was misleading them about his condition. However, the judge said:
“I do not consider 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.”
The judge pointed out that Mr Miley had never denied being able “to perform both mental and physical activities at some level.”
The insurers also alleged that Mr Miley had a strong motive to go on long-term sickness. However, the judge would not accept that. He pointed out as at the time of his illness, he was only 42 with a proven professional track record, so had no financial reason to wish to give up work. Indeed, quite the reverse.
The insurers even suggested that Mr Miley’s demeanour when giving evidence in Court was inconsistent with his previous responses. However, the judge pointed out that he had been watching the claimant when giving evidence, and noticed that sometimes he appeared to lose concentration and hold his head in his hands. He thought that the claimant’s behaviour and appearance in Court actually provided a level of support for his case.
The insurers also insisted on the disclosure of a huge amount of documentation over a number of years, including Mr Miley’s letters, e-mails, tax returns, bank and credit card statements, as well as mobile telephone records, in order to portray a picture of Mr Miley’s lifestyle and activities; something that plainly irritated the judge.
Mr Miley’s own evidence regarding his medical condition of Chronic Fatigue Syndrome (CFS) was that it neither improved nor deteriorated on a long term basis. In fact, it followed an irregular cycle, in which some days, weeks and months could be better than others. The insurers alleged that he had lied to a Functional Capacity Assessor employed by the insurer called Mr Newman, who had carried out a Chronic Pain Abilities Determination (CPAD) over two separate days.
The insurers had placed Mr Miley under a large amount of surveillance over five separate periods, between December 2010 and August 2013, a common tactic among insurers. The surveillance included footage of him going out in the car, shopping, attending the dentist and going to his daughter’s school. Also, on one occasion visiting a pub, and on another a beer festival.
The defendants alleged that the surveillance proved that Mr Miley had exaggerated his symptoms to their functional assessor and his own medical advisers. However, the judge stated that there was a lack of contradiction between what the surveillance evidence revealed and what the claimant said he had done.
The judge came to the conclusion that the surveillance evidence fell:
“very far short of undermining the claimant’s case and 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.”
The judge also pointed out that for a number of days he was not even seen leaving his house at all.
The insurers raised at the trial a new line of attack, namely that Mr Miley had not disclosed his other income. However, the Financial Review Form stated that whilst he should disclose “other income (income from investments may be ignored).” This was raised without prior notice during their cross examination of Mr Miley, obviously to try and catch him out. However, the judge accepted that the other income was in respect of shares owned by Mr Miley and were therefore an “investment”. He dismissed the insurers’ argument to the contrary.
The remainder of the Judgment dealt with Mr Miley’s expert evidence from Professor Leslie Findley, together with his other expert, Mr Tandy, an expert in Functional Capacity Evaluation (FCE). The defendant relied on a Professor Cleare and a Dr Williams.
The judge said that before dealing with the expert medical evidence:
“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 significant belies the objective reality.”
The judge then went on to deal with the expert medical evidence and stated:
“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 it may have led some credence to the claimant’s case. In particular, he appeared to be unnecessarily reluctant in reaching the conclusions, which he eventually did, that the claimant 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.”
The invasive and misleading accounts that the surveillance and documentary evidence that Friend’s Life produced clearly irritated the judge, and the defendant’s expert testimony only furthered his irritation. It seems obvious, as Mr. Miley’s representatives argued, that the evidence only went to demonstrate how CFS was a cyclical issue.
In this case, the stakes were very high for Mr Miley: he and his family, who fully supported him and gave evidence, were literally fighting for his financial life. With the insurers alleging fraud and embarking on a huge Counterclaim against him, if Mr Miley had lost they could have bankrupted him. The insurers had clearly obtained a massive amount of documents, insisting on many years of disclosure by Mr Miley, seeking to portray some kind of lifestyle, as well as relying on medical evidence, functional evaluation evidence and five separate lengthy periods of surveillance. Their efforts in the trial itself against the claimant appeared to be counter-productive with the judge.
It is a testament to both Mr Miley, his legal team, his witnesses (including Professor Findley) and the clarity of Mr Justice Turner in his Judgment that they did not succeed. In a case where the claimant had lost his livelihood thanks to a terrible condition, and was fighting against the odds by taking on a large insurer, it was great to see that justice did prevail.
In February 2019 the Court of Appeal dismissed an appeal made by Friends Provident on all counts. The argument that Mr Miley had been dishonest in his so called continuation forms filed during the time he was receiving benefits was rejected. The appeal judges dismissed an argument that claimants were in effect not permitted to make innocent mistakes in the particular insurance forms. All that was required from Mr Miley was that he answered requests to the best of his information and belief.
The original Trial judge found that, even if there were mistakes made by Mr Miley, he was not deliberately lying. Furthermore that he actually had the condition at the level he claimed. For that reason, said the Court of Appeal, even if he had told the insurer all the things relating to his condition which it said he failed to disclose, he would still have been entitled to the benefits under the policy.
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