CH-2025-000032 - [2025] EWHC 2988 (Ch)

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

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

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

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

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

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

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

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

It is pleaded that in 2000 a medical loading was wrongly applied to his policy. It is unclear which term of the contract he said was broken as the loading was part of the term of the policy offered and accepted. As regards the loading:

In the alternative (although not currently pleaded) if Mr Dewji’s case is that the loading was applied for travel reasons and that this was a breach of contract:

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

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

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