Rust v Abbey Life Assurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRANDON,LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE ORR |
| Judgment Date | 30 March 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0330-3 |
| Date | 30 March 1979 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J0330-3
Lord Justice Orr
Lord Justice Cumming-Bruce and
Lord Justice Brandon
In The Supreme Court of Judicature
The Court of Appeal
(Queen's Bench Division)
THE APPELLANT appeared in person.
MR. J. STEYN (instructed by Messrs. Birkbeck, Montague & Co. of London) appeared on behalf of the Respondents.
This is an appeal from a judgment of Mr. Cecil Clothier, Q. C. sitting as a Deputy Judge of the High Court given on 14th April 1978. The judgment was given in an action in which Mrs. Christine Agnes Rust was the plaintiff, the Abbey Life Assurance Co. Ltd. were the first defendants and Mr. Clive Prentice was the second defendant.
The action related to a single premium property bond policy issued by the first defendants to the plaintiff, in respect of which the plaintiff paid a premium of £91,600 Such a property bond is a form of life insurance under which the single premium paid is invested in a wide range of real property. The bond is primarily an investment in property with the benefit of life insurance added. It provides certain tax advantages in the form of deferring liability for higher rate income tax on gains which may be made. In the form in which it was issued by the first defendants at the material time it also provided what is described as a liquidity facility. This is a means whereby the investor can withdraw part of his investment from time to time without incurring immediate tax liability. Like other investments its value is capable of going up or down according to the state of the property market.
The plaintiff's case in the court below was put in three main ways. First, there had never been any concluded contract between the plaintiff and the first defendants in relation to the subject matter of the policy concerned; the policy was therefore void and the plaintiff was entitled to the return of her money. Alternatively, second, if there was a concluded contract the plaintiff had been induced to enter into it by (a) the misrepresentation or (b) the undue influence of the second defendant who was the agent of the first defendants; the policy was therefore voidable and the plaintiff was again entitled to the return of her money. In the further alternative, if there was a concluded contract, the plaintiff had entered into it in consequence of the negligence of the first defendants or their servants or agents, including the second defendant. As a result of entering into the contract she had sufferedpecuniary loss and she was therefore entitled to recover damages in respect of such loss from both defendants.
At the hearing before the learned Deputy Judge both sides were represented by solicitors and counsel. After a hearing lasting some five days or more, the learned Deputy Judge decided as follows. First, that there had been a concluded contract between the plaintiff and the first defendants on the terns of the policy which had been issued. Second, that there had been no misrepresentation or undue influence on the part of the second defendant, so that the contract was not voidable. Third, that there had been no negligence of the first defendants, their servants or agents, including the second defendant, so the the plaintiff was not entitled to damages. He accordingly dismissed the plaintiff's claim in its entirety.
By Notice of Appeal dated 26th May 1978 lodged by the plaintiff's solicitors on her behalf the plaintiff appeals against the learned Deputy Judge's decision. According to the terms of the Notice of Appeal the appeal is confined to that part of the learned Deputy Judge's judgment by which he decided that there had been a concluded contract between the plaintiff and the first defendants on the terms of the policy.
On the hearing of the appeal the plaintiff was no longer represented by solicitors and counsel but appeared in person. this circumstance created difficulties, both for her and the Court these difficulties were mitigated, but not entirely eliminated, by the approach adopted by Mr. Steyn as counsel for the defendants. He did his best to ensure that the Court was apprised, not only of the arguments against the appeal, but also of those in favour of it, and we are grateful to him for assisting the Court in that way. As a result of Mr. Steyn's approach to the matter the plaintiff need not feel that her case, which she was naturally unable to expound or develop effectively herself, was not adequately put before the Court for its consideration.
Counsel for the defendants indicated to us that it appeared from correspondence which had passed between the plaintiff and his instructingsolicitors that the plaintiff desired to enlarge the scope of her appeal to cover other aspects of the learned Deputy Judge's decision besides the aspect referred to in the Notice of Appeal. The plaintiff did not however ask us for leave to amend her Notice of Appeal, nor did she present any argument to us on such other aspects of the learned Deputy Judge's decision. In these circumstances the Court must, in my view, deal with the case on the basis of the Notice of Appeal as framed for the plaintiff by her former legal advisers, rather than on any enlarged basis not covered by such Notice. In particular the Court must, I consider, proceed on the basis that the learned Deputy Judge's primary findings of fact on all relevant matters are correct. Those findings of fact were arrived at on the basis that, where there was any conflict between the evidence of the plaintiff on the one hand and that of the witnesses for the defendants, including the second defendant himself, on the other hand, he preferred the evidence of the latter witnesses. He expressed that preference after seeing and hearing the witnesses over a number of days. That being so, even if the scope of the appeal had been enlarged so as to attempt to displace his primary findings of act, it is clear that such an attempt would have been bound to fail. In this respect also, therefore, the plaintiff need net feel that any opportunity of any value to her has been lost.
It follows from what I have said that the sole question for the decision of this Court on the appeal is whether, on the primary findings of fact trade by the learned Deputy Judge, he was right in deciding that there was a concluded contract between the plaintiff and the first defendants on the terms of the policy. In order to examine that question I propose to summarise the material findings of the learned Deputy Judge. In doing so I shall deliberately void reference to findings of fact which are only material to the various other questions which arose in the action, were decided against the plaintiff and are not the subject matter of the appeal. I shall also deliberately avoid reference no versions of the relevant facts which were given in evidence by the plaintiff but rejected as incorrect by the learned Deputy Judge.
The material facts as they appear from the documents and as they have been found by the learned Deputy Judge are these. During a considerable period of years up to 1973 the plaintiff had owned and managed a hotel in London. In 1973 she sold the hotel and, following the sale, had a sum in excess of £90,000 in her bank account. She desired to invest this money. She consulted a friend who suggested that she should invest it in property bonds. He introduced her to the second defendant. Three meetings took place between the plaintiff and the second defendant. The first was in June 1973, or earlier in that year, the second was on or about 28th September 1973 and the third was on the 1st October 1973. During the first and second meetings the second defendant explained to the plaintiff the nature of an investment in the first defendants' property bonds and encouraged her to invest her money in them. He was an agent for the first defendants and stood to gain a substantial commission if the plaintiff took his advice. At the second meeting the plaintiff suggested that the second defendant should meet her accountant, a Mr. Abrahams, and discuss the project with him. A meeting was arranged for the 1st October. On the morning of that day. the second defendant went to Mr. Abrahams' office and explained the nature of the investment to him, Mr. Abrahams appears to have been satisfied that it was a suitable investment for the plaintiff. In the...
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