Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE MCKENDRICK
Between :
THE KING (On the application of FAIZ SIDDIQUI) | Claimant |
- and - | |
FINANCIAL OMBUDSMAN SERVICE LTD. - and – ARAG LEGAL EXPENSES INSURANCE COMPANY LIMITED | Defendant Interested Party |
Tim Johnston (instructed byDale Langley & Co) for the Claimant
David Hopkins (instructed byFinancial Ombudsman Service Limited) for the Defendant
Michael Tomlinson KC (instructed by ARAG Law) for the Interested Party
Hearing dates: 28 and 29 April 2026
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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THE HONOURABLE MR JUSTICE MCKENDRICK
McKendrick J :
Introduction
By way of a claim form issued on 31 October 2025, the Claimant seeks to judicially review the decision of the Defendant, dated 15 July 2025, to dismiss his complaint in respect of the refusal of insurance coverage (hereafter “the Decision”). The Claimant seeks relief in the form of a quashing order against the Decision. Permission was granted in respect of four grounds of challenge by order of Mr John Halford, sitting as a Deputy High Court Judge, on 15 December 2025. The Defendant and the Interested Party (ARAG) oppose the relief sought.
The brief background is as follows. The Claimant and his father have experienced an at times difficult relationship. The Claimant previously brought unsuccessful legal proceedings against his father. In 2019 his father had solicitors write to him threatening injunctive relief against him. In or around the spring and early summer of 2024 the Claimant sent highly charged correspondence to his elderly and unwell father. On 29 July 2024 the Claimant received a letter from his father’s Dubai based lawyers. It informed the Claimant to cease corresponding with or contacting their client, the Claimant’s father. They warned the Claimant that injunctive relief would be sought which may involve penal consequences if breached. The Claimant says that as a result of receipt of that letter he suffered personal injury by way of psychiatric harm. He held three insurance policies. He initiated a claim for legal expenses insurance under these policies for the purposes of bringing legal proceedings against his father in respect of the injury caused by receipt of his father’s letter. The three policies are similar, with minor textual differences. The Claimant said that the receipt of the letter and/or the injury were an accident and he was therefore covered. ARAG refused to provide cover. On 24 December 2024, the Claimant made a complaint to the Defendant in respect of ARAG’s failure to provide cover. A provisional decision was issued by the appointed Ombudsman on 25 April 2025 and the Decision was issued on 15 July 2025. The Ombudsman concluded that on the true construction of the insurance contracts no accident had taken place.
The facts are very largely agreed between the parties. The law in respect of the functions of the Ombudsman is also very largely agreed. The real issue in dispute within these public law proceedings is the private law matter of the meaning of an “accident” as it arises in the three insurance policies. There is a considerable amount of case law on this issue and it is of some complexity.
I heard detailed submissions from counsel of a high quality at the contested final hearing and reserved my decision. I have determined to dismiss the claim and endeavour to set out my reasons below.
The Factual Background and A Summary of the Evidence
The Claimant lives in London. He has disabilities. His treating physician has explained in reports filed in these proceedings that the Claimant is a “disabled individual who suffers from severe and long-term disabilities under the Equality Act 2010. These disabilities include Major Depression, Chronic Insomnia, Generalised Anxiety Disorder, Type 2 Diabetes and Hypercholesterolaemia.”
Some of the Claimant’s wider family live in the United Arab Emirates. The Claimant and his father have an up and down relationship. The Claimant’s evidence is that 2019 was a particularly bad year for his relationship with his father as his father cut off communication for several months and withdrew financial support. Injunctive proceedings were threatened by the father against the Claimant. The Claimant issued proceedings for financial support as a disabled adult son, which failed. He appealed the refusal of relief. The appeal was dismissed. In 2021 the Claimant states relations improved and he visited his family in Dubai in the summer of 2021. The Claimant’s counsel accepts that relations remain “sometimes tempestuous.” Relations soured in 2024 when the Claimant argued with his father over his father’s apparent broken promise of returning to London to visit his son. The Claimant’s counsel accepts the Claimant then sent “a series of upset, argumentative and forceful messages to his father.” They were sent over a considerable period of weeks and are strongly worded. The Claimant wrote to his father stating inter alia: “lying and acting with lack of integrity has now become 2nd nature to you”; “You are living in a dream world if you believe that there will be no consequences to your actions”; “Thanks for lying to me and stabbing me in the back again you stupid asshole. I will make sure you pay a heavy price for this misbehavior on your part”, and “I will make sure you severely regret this vile behaviour which Ami and others have no doubt put you up to”. He also wrote to his father, that he had “weasel[ed] out of things we just recently agreed on my birthday” and that he was a “lying swine.”
On 29 July 2024, the Claimant received a letter from UAE lawyers acting for his father, which was written on 22 July 2024. The letter told the Claimant that he was warned to refrain from contacting his father and his family residing in the UAE and to refrain from any harassment of his father or his family. The letter stated it followed electronic messages received by Mr Siddiqui’s father from the Claimant which contained threats and abusive language towards Mr Siddiqui’s father, despite the fact he was 75 years old and suffered from poor health conditions, including diabetes, prostate cancer, Parkinson’s and had previously suffered a heart attack.
The letter stated the Claimant’s actions violated the provisions of Electronic Crimes Law No. 34/2021 and set out the potential penalties for breach, including imprisonment for a term not exceeding two years and a fine of between AED 250,000 and AED 500,000. The letter stated the Claimant’s father had been prompted to send the warning as a deterrent to the Claimant’s actions, hoping to achieve safety and security for the rest of the family members.
The Claimant has filed written evidence about the impact of the receipt of the July 2024 letter on him. He relied on his own evidence, that of his solicitor, Mr Langley, his treating psychiatrist Dr Beckett and Mr Hack, who was/is the concierge at the apartment block where he resides and who delivered the letter to the Claimant. It is agreed this evidence was before the Ombudsman. I summarise it briefly as it is relevant to how the Claimant puts his case.
Mr Hack’s statement was that he saw the Claimant open the letter and that he became “increasingly distressed and upset” as he read it. His voice began to tremble and his face went pale. The Claimant stated that he was “amazed” and kept repeatedly stating that he “could not believe that his father would send such a letter to him”. He described the Claimant’s reaction as “completely horrified and aghast by what he had just seen.” Mr Langley’s evidence was that the Claimant called him after receiving the letter. He was“extremely shocked and upset.” His voice trembled and he “sounded beside himself.” Mr Langley took a good hour to console and calm the Claimant down.
Dr Beckett’s report opined that the July 2024 Letter exacerbated the Claimant’s pre-existing medical conditions and caused an acute stress reaction. He says he spoke to the Claimant by phone on the day the July 2024 letter was delivered. The Claimant was “shocked”; he “had not seen the letter coming at all.” His opinion is that the Claimant is suffering from “a significant exacerbation in his Major Depression, Chronic Insomnia, Generalised Anxiety Disorder and an Acute Stress Reaction”. He set out in his letter report the following:
“I can also confirm that the severe exacerbation in Mr. Siddiqui’s Generalised Anxiety Disorder, particularly his stress levels, has also resulted in physical injuries and/or manifestations to his body in terms of: (1) deep mouth ulcers; (2) acute hair loss; (3) skin rashes, (4) contributing to excessive weight gain of 3-4 stones in recent years; (5) worsening insomnia; (6) heart palpitations relating to anxiety; (7) muscle tightness, fatigue and tear; (8) an effect on the upper respiratory system caused by bronchoconstriction impacted by anxiety.”
Following his receipt of the letter, the Claimant proposed to bring a claim against his father for damages for personal injury, breach of contract, equitable estoppel and negligent misstatement. ARAG had underwritten three policies of insurance sold by Zurich, Covea, and John Lewis which covered the Claimant for legal expenses insurance in certain circumstances. The Claimant made claims under the policies seeking indemnities for his legal costs of the proposed action against his father. The proposed claim for personal injury arose from psychiatric injury the Claimant alleges he suffered as a result of receiving the letter from his father.
The relevant parts of the Insurance Policies provide the following policy wording in respect of personal injury:
Covea policy: “Costs and expenses to pursue your legal rights following a specific or sudden accident that causes: (a) your death or bodily injury to your (b) psychological injury or mental illness to you.”
Zurich policy: as regards civil claims in respect of “A specific or sudden accident that causes your death or bodily injury”
John Lewis policy: as regards personal injury “A specific or sudden accident that causes your death or bodily injury to you.” The provision excluded “illness or bodily injury that happens gradually”
The policies also provided coverage for legal expenses for contractual claims as follows:
Covea policy: “Costs and expenses for your legal rights in a contractual dispute arising from an agreement or alleged agreement which you have entered into in a personal capacity for: (a) buying or hiring in goods or services…”
Zurich policy: “A contractual dispute arising from an agreement or an alleged agreement which you have entered into in a personal capacity for buying or hiring in goods or services…”
John Lewis policy: “The cost of you taking legal proceedings against another person or organisation as a result of (a) a dispute over a contract for buying, selling or renting goods or services.”
In November 2024, the Claimant’s claims under the policies were refused. The Claimant complained to ARAG, which rejected his complaint. The Claimant then referred his complaint to the Defendant. An investigator provided an initial partly positive view, before the Ombudsman provided a provisional decision dated 25 April 2025 and thereafter, the Decision. The Claimant and ARAG were legally represented throughout and submitted a large volume of submissions and documents to the Ombudsman during his multi-stage and iterative decision-making process. I need not set out the process as there is no challenge to the procedure adopted by the Ombudsman.
The Ombudsman’s Decision
The Ombudsman’s Decision sets out the background and the facts in a section entitled “What Happened”. He then set out extracts from his earlier Provisional Decisions. He refers to the Claimant as “Mr S”. I set out relevant parts which apply to aspects of the claim:
Both Mr S and ARAG have provided extensive comments. While I’ve taken everything into account, I won’t comment in detail on every point that has been made and will focus on the key points that are relevant to the outcome I’ve reached. That’s in line with our remit, which is to resolve complaints promptly and with minimal formality.
In particular, while I’ve taken account of the legal arguments, it’s not my role to determine the law or apply it strictly in the same way as the courts. I’m not required to engage in a detailed analysis of the law, but to take account of relevant legal principles when deciding what’s a fair and reasonable outcome, taking into account all the circumstances of the case.
The Ombudsman then deals with the complaint in respect of refusal of contractual cover and dismisses it for these reasons:
The relevant industry rules and guidance say insurers must deal with claims promptly and fairly, and not unreasonably reject a claim. The starting point for considering this is the policy terms, since they set out the basis of the insurance contract between Mr S and ARAG.
The contract dispute section provides cover for disputes “…arising from an agreement or an alleged agreement which you have entered into in a personal capacity for:
• buying or hiring in goods or services;
• selling goods…”
In the first instance, it’s for the policyholder to prove their claim. So to be covered for this, Mr S needs to show the dispute is about an agreement he has entered into to buy or hire goods or services.
Mr S says he had a number of contracts for services and, related to those, collateral contracts with his father who agreed to provide funding. He argues that, as the collateral contract takes its nature and existence from the principal contract, it can’t be said to be unrelated. That doesn’t necessarily mean it’s fair for an insurer to cover the costs of the legal dispute.
The policy terms are clear that cover is for contracts Mr S has entered into for buying or hiring goods or services. So it’s intended to cover disputes about the contracts Mr S entered into with the sellers of those goods or services. If this was a dispute between Mr S and those parties, that would be something he could claim for. Having considered this carefully, I don’t think that’s the case here, because:
• The claim doesn’t arise from a dispute over a contract Mr S entered into for buying services.
• There is no dispute about his purchase of services; the dispute is with his father.
• There’s a difference between consumer contract disputes – which the insurance will cover – and disputes over family agreements. This is not a dispute over Mr S “buying, hiring or leasing any personal goods or services”.
On this basis, I think it was reasonable for ARAG to conclude the dispute for which Mr S has claimed is not something that’s covered by the policy.
He then turns to the personal injury claim. He sets out his provisional decision that this part of the claim be dismissed. I need not set that out. The Claimant then responded and the Ombudsman set out a summary of the further submissions made on the Claimant’s behalf as follows:
I won’t set them out in full but the key points include:
• It is not open to apply a different legal test of an accident as something “unexpected” rather than something “unintentional”.
• Where the legal authorities are clear as to what constitutes an “accident” a decision that rejects a consumer’s complaint when that complaint is fully supported by those authorities cannot be considered to be “fair and reasonable”
• The accident was not the withdrawal of financial support, it was the receipt and reading by Mr S of the letter from his father’s solicitors threatening possible criminal proceedings and injunctions as well as cutting off contact between them. The contents of the letter came as a complete shock to Mr S and caused him great distress.
• The provisional decision considered the wrong question of whether the sending of the July 2024 letter was “expected” from Mr S’ perspective. The correct approach would be to look solely at the question of whether “bodily injury” was expected and/or intended from his perspective.
• It can’t be suggested Mr S expected to suffer psychiatric injury, intentionally caused himself a self-inflicted injury or had undertaken a reckless course of conduct which put him in serious danger of immediate bodily injury. And this was not the natural and direct consequence of Mr S’ course of conduct; a falling out between father and son was not likely to result in bodily injury.
• The question of whether or not the injury was accidental is to be assessed from the perspective of the victim.
• There was an unresolved disagreement, as there had been on many occasions in the past. But Mr S did not expect to receive a letter threatening him with imprisonment and other legal action, or being cut off from his family.
• The sole question to consider is whether Mr S’ “bodily injury” was intended and/or expected from his perspective when he had an argument with his father in June 2024. The answer to that question is “no”. So this constitutes an “accident”.
• An accident need only be “unintentional” from the insured’s perspective, and even events which are “foreseeable” and “expected” may still qualify as accidents.
He then turns to his decision in a section headed: “What I’ve decided- and why”. It stated:
I have considered very carefully the detailed submissions about the personal injury claim but these don’t lead me to change my provisional decision, for the following reasons:
• Mr S is covered if his claim arises from “a specific or sudden accident” that caused him death or bodily injury.
• His legal arguments include references to caselaw. He says those judgments mean this must be considered an accident and no other outcome can be fair and reasonable. I appreciate he has provided detailed legal submissions. But ARAG has done likewise and reached a different conclusion.
• Mr S also says the policy should be construed from the viewpoint of the insured, but that doesn’t mean whatever he asserts must be accepted without question.
• Mr S’ counsel has referred to authorities including De Souza v Home & Overseas Insurance Co. Ltd [1995] LRLR 453, to the effect that the word 'accident' involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; and Chief Adjudication Officer v Faulds [2000] 1 WLR 1035 – the word 'accident' should be given its ordinary meaning of something happening unintentionally (an unlooked-for mishap or an untoward event), and an accident which was foreseeable was still an accident.
• Some of the authorities referred to in Mr S’ submissions concern worker’s compensation benefit cases. The courts have cautioned against using these to resolve insurance issues, and even those cases acknowledge the need to identify a specific incident as opposed to a process – which goes hand in hand with the requirement that the “accident” must be specific and sudden.
• ARAG’s position is that this wasn’t a sudden or specific event; it was the culmination of a series of events, arising out of Mr S’ ongoing issues with his parents.
• In De Souza v Home and Overseas Insurance Co Ltd, the court referred to the following points:
“A man must be taken to intend the ordinary consequences of his acts, and the fact that he did not foresee the particular consequence or expect the particular injury does not make the injury accidental if, in the circumstances, it was the natural and direct consequence of what he did, without the intervention of any fortuitous cause.”
Injury is not caused by an accident where someone “pursues a course of conduct which naturally results in the intervention of third persons … In these cases, the third person’s act cannot be regarded separately; it is a consequence resulting from the assured’s own wrongful conduct which he ought reasonably to have foreseen and expected, and there is, therefore, so far as he is concerned, nothing accidental about it.” (Footnote: 1)
• I find that argument quite persuasive. Mr S has provided copies of messages he sent to this father. He did send a conciliatory message but he didn’t receive anything in reply indicating they were reconciled. Mr S was upset that he was being cut off by his father. Having considered the nature of the messages, I don’t consider it would have been “entirely unexpected” (as Mr S claims) for a letter to be sent asking him to stop, and saying further action would be taken if he did not.
• The letter Mr S received was the natural and direct consequence of his own actions. An accident is not established simply by showing Mr S didn’t foresee the consequences of what he had done.
• As I’ve explained, detailed legal arguments have been put forward in this case. I need to take account of these arguments, but it’s not for me to determine the law; I need to decide what’s fair and reasonable, taking into account all the circumstances.
• Looking at all the circumstances, it seems to me the letter Mr S received was the culmination of a series of events – and the consequence of his own actions. It wasn’t something that happened in isolation or something that would have been entirely unexpected. On that basis, the conclusion ARAG reached that this was not a sudden and specific accident was a reasonable one.
The Ombudsman filed a witness statement in response to the Claimant’s Statement of Facts and Grounds after the grant of permission. Mr Johnston took no issue with what could be considered ex post facto reasoning. The Ombudsman notes the complaint was allocated to him in March 2025 and that he had dealt with previous complaints the Claimant had brought. This included dismissing a complaint in which the Claimant had argued he was entitled to cover under a different policy to pursue a complaint for personal injury against the Financial Ombudsman Service itself, for the shock of receiving a decision which did not uphold his complaint. He spends some time setting out the procedure adopted, but as there is no procedural challenge, I do not set this out, other than noting the FOS Investigator dismissed the complaint in respect of the contractual issue but upheld the complaint in respect of the personal injury coverage. The Ombudsman states his role “involved taking into account relevant legal principles.” But he did not consider he was required to “engage in a detailed analysis of the law”. At paragraph 51 of his witness statement he makes clear he did not consider he was departing from the law, rather he was applying the case of De Souza. Part of his reasoning is set out at paragraph 50 and Mr Johnston placed particular reliance on this paragraph, so I set it out in full:
“In making these findings, I focused on whether the Claimant’s receipt of the letter on 29 July 2024 was an accident. The Claimant’s counsel had stated that the question I needed to consider was whether the injury was ‘intended’. But the policy terms referred to an injury caused by an accident. It was therefore necessary to consider whether there had been an accident, not simply whether there had been an injury. Taking all of this into consideration, I concluded that even if the Claimant had suffered an injury, if it was not caused by an accident there was no cover in place under the policies.”
The Role of The Ombudsman
The Ombudsman was established pursuant to Part XVI of FSMA. It provides an independent, informal complaint resolution procedure for the financial services industry, thereby seeking to avoid the need for complainants to resort to the courts. This objective is articulated in s 225(1) of FSMA, which provides: “This part provides for a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person”.
Pursuant to s 225(4) and paragraphs 13 and 14 of schedule 17 to FSMA provide for the making of rules covering the operation and jurisdiction of the FOS. The rules are set out in the Financial Conduct Authority (“FCA”) Handbook under the section entitled “Dispute Resolution: Complaints” (“DISP”). DISP 3.6.4R provides that in considering what is “fair and reasonable in all the circumstances” the FOS will take account of relevant “law and regulations.” The complaint in this case arose under the Financial Ombudsman Service’s compulsory jurisdiction as set out in s 226 of FSMA. Sub-section 228(2) of FSMA provides that a complaint determined under the compulsory jurisdiction “is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case”.
An ombudsman must direct themselves correctly as to what the relevant law is. Mr Hopkins on behalf of the Defendant accepts that the true construction of an agreement is an issue of law and it was incumbent on the Ombudsman to arrive at the correct legal position. A decision of the Ombudsman will be set aside if it is vitiated by an error of law. “They must direct themselves correctly as to what the relevant law is”:R (Shawbrook Bank) v FOS [2023] EWHC 1069 (Admin) at paragraph 13.
In Linear Investments v FOS [2025] EWCA Civ 1369, the Court of Appeal set aside the decision of an ombudsman, to the extent that he misunderstood the law of contributory negligence. It was held at paragraph 101:
“I therefore consider that the Ombudsman's Decision proceeded on an inaccurate approach to the law of contributory negligence. Whilst I fully accept that the Ombudsman was not obliged to apply the law in this respect, he was obliged by DISP 3.6.4R to take it into account. That implies that he should take it into account accurately.”
The FOS will err in law if he errs as to the meaning of the relevant agreement between the parties: R (TF Global Markets (UK) Limited) v FOS [2020] EWHC 3178 (Admin), at paragraph 42. In R (Assurant General Insurance Limited) v Financial Ombudsman Service [2023] EWCA Civ 1049, Singh LJ held at paragraph 60 (with my emphasis added)
“In some complaints made to the FOS there may be a relevant dispute as to what are the terms of a contract... Such a dispute concerns questions of fact and, where it arises, I accept Mr Strachan's submission that the determination of those questions of fact is primarily for the FOS, subject to judicial review on conventional principles of public law. I would also endorse Mr Strachan's concession that the construction of a document such as a contract is a question of law and must be determined by the court itself. This is not a departure from conventional principles of public law; it is simply an application of them, since one of those principles is that a public authority whose decisions are the subject of judicial review must get the law right.”
The parties accepted it is well established that the decisions of the Defendant are amenable to judicial review on conventional grounds, such as that the decision was irrational, in light of the evidence: R (Green) v Financial Ombudsman Services [2012] EWHC 1253 (Admin) at paragraph 11. An ombudsman’s decision may be set aside because the reasoning is unclear or inadequate: R (Aviva Life & Pensions (UK) Limited v Financial Ombudsman Service [2017] ACD 53 at paragraph 2. The reasoning must be “clear and comprehensible” but this obligation is not applied with excessive strictness: R (Keith Williams) v Financial Ombudsman Service [2008] EWHC 2142 (Admin) at paragraph 51.
On the Ombudsman’s general duty to give reasons the Defendant’s Detailed Grounds of Resistance (settled by Adam Boukraa) stated the following without demur from the Claimant:
Bearing in mind the underlying intention of the scheme to resolve disputes quickly and with minimum formality by an independent person, “[i]t is axiomatic, therefore, that any Ombudsman's decision letter should be read as a whole and in a common sense, and certainly not in a legalistic, way” (R (Garrison Investment Analysis) v Financial Ombudsman Service[2006] EWHC 2466 (Admin) at §5. The same view was expressed in Westscott, §32(x): “Decision letters are not statutes. They are not legal documents. They set out decisions and explain them. They are to be read and interpreted in a common sense way.” Similarly, per Williamsat §51:
“The ombudsman has a duty to give clear and comprehensible reasons for his decision. However, he is fully entitled to adopt the findings and conclusions of an adjudicator who has reported on the case, without elaborate adoption of this or that specific sentence, or this or that particular point. These reports are reports, not pleadings. A party to a complaint must know why he has won, or perhaps more importantly why he has lost, in clear and comprehensible terms. That is the requirement, but that is the only requirement and it can be met in a reasonably flexible way.”
Of importance to this claim is the case law that considers the Ombudsman’s duty to give reasons if departing from the common law to provide for a “fair and reasonable outcome.” The parties are agreed that if the Ombudsman has properly directed themselves as to the law, they may depart from it, on grounds of fairness or reasonableness. However, when doing so, they must direct themselves properly as to what the law is, and explain that they have departed from it and why: Heather Moor and Edgcomb v Financial Ombudsman Service [2008] Bus LR 1486 at [1503H]:
“He is free to depart from the relevant law, but if he does so he should say so in his decision and explain why… Lastly, the common law requires consistency: that like cases are treated alike. Arbitrariness on the part of the ombudsman, including an unreasoned and unjustified failure to treat like cases alike, would be a ground for judicial review.”
The Court of Appeal considered this recently in R (Options UK Personal Pensions LLP) v Financial Ombudsman Service [2025] 2 All ER 399 at paragraph 77:
“All of the authorities to which I have referred emphasise, quite rightly, the need for the ombudsman to explain his reasoning. As Rix LJ described it in the Heather Moor case [2008] Bus LR 1486, para 80, despite the fact that the ombudsman is required to arrive at an opinion as to what is fair and reasonable in all the circumstances, he is not operating by the length of his foot. The ombudsman must take the matters in DISP 3.4.6R into account and must make the reasoning clear so that decisions can be understood and be amenable to judicial review on the grounds of perversity and/or irrationality.”
The Grounds of Judicial Review and Analysis
Ground One
Ground one is simply put. The Ombudsman’s interpretation and application of ‘accident’ is wrong in law. The Decision therefore misapplies the law and must be quashed.
The parties are agreed that the Ombudsman was required to arrive at the proper construction of the insurance contracts. The parties agree that the Ombudsman could have departed from the law providing good reasons and then made a decision based on what was fair and reasonable. The parties are agreed the Ombudsman did not approach the Decision in this way. The Ombudsman’s witness statement was clear he did not intend to depart from the law and arrive at a fair and reasonable outcome. The Claimant submits the Ombudsman erred in law when interpreting the meaning of ‘accident’ in the insurance contract. He submits this is fatal. The Defendant and ARAG submit the Ombudsman made no error of law. The parties are agreed the court should consider the true construction of the insurance contracts and assess whether the Ombudsman also did so and whether the Decision discloses an error of law. The Defendant accepts that an error of law on the construction of the insurance contracts would lead to the quashing of the Decision.
I also add that there was no dispute between the parties that bodily injury can include psychological harm.
The Claimant’s pleaded case is succinctly put in his Statement of Facts and Grounds (settled by Stephen Cragg KC):
The ombudsman directed himself to the wrong question of whether the sending of the July 2024 letter was ‘expected’ when taken from the Claimant’s perspective. Applying the law the ombudsman should have been looking solely at the question of whether ‘bodily injury’ was expected and/or intended from the Claimant’s perspective based on the previous argumentative text exchange with his father. As Mr Kirby submitted (see above) ‘It cannot be seriously suggested that [the Claimant] expected to suffer psychiatric injury’ as a result of an argumentative text exchange with his father.
Had the approach in Hawley v Luminar Leisure [2006] EWCA Civ 18 been correctly applied, then it would have been axiomatic that the receipt and reading of the shocking and distressing contents of the letter would be considered an ‘accident’ when taken from the Claimant’s perspective.
The Defendant erred in law by holding that the ‘accident’ in question was the sending of the 22 July 2024 letter rather than the receipt and reading of the distressing contents of the 22 July 2024 letter by the Claimant on 29 July 2024 (as explained by Mr Kirby KC and set out above).
Mr Johnston set out four propositions. “First, an injury may be caused by an accident in various ways.Mustill LJ outlined two of those ways in which an accident may occur in De Souza v Home and Overseas Insurance Co Ltd [1995] LRLR 453:
“(1) Where the injury is the natural result of a fortuitous and unexpected cause as, for instance, where the assured is run over by a train… In this case the element of accident manifests itself in the cause of the injury.
(2) Where the injury is the fortuitous and unexpected result of a natural cause, as for instance, where a person lifts a heavy burden in the ordinary course of business and injures his spine… In this case the element of accident manifests itself, not in the cause, but in its result…”
An injury is not caused by an accident falling into either of these definitions when it is the natural result of a natural cause: “As for instance, where a person is exposed in the ordinary course of his business to the heat of a tropical sun and in consequence suffers from sunstroke, or where a person with a weak heart injures himself running to catch a train, or by some other unintentional act involving violent physical exertion. In this case the element of accident is broadly speaking absent, since the cause is one which comes into operation in the ordinary course of events, and is calculated, within the ordinary experience of mankind, to produce the result which it has in fact produced.” In that case, a man went into the sun on a particularly hot day, experienced heat stroke and died. This cause was not unexpected and fortuitous (individuals ordinarily go into the sun) and the injury was not unexpected and fortuitous (heat stroke is an ordinary consequence of time in the sun).”
“Second, a further category of accident may occur as a result of the assured’s own actions. The insured will have suffered an accident provided that the injury was neither: (a) the natural and direct consequences of his actions nor (b) deliberate. …. It is important to note that the relevant question is not whether the assured intended the event that caused the injury. Rather the question is whether he intended the injury itself.” It was the Claimant’s case it is necessary to establish intent as regards both the event and the injury.
Third, an event may cause an accident even if it is foreseeable.
Fourth, whether or not an event was expected and fortuitous is assessed from the perspective of the insured.”
Applying these principles Mr Johnston developed four sub-grounds under Ground One. He submits, first, that the Ombudsman erred when considering whether events of 29 July 2024 were expected. He submits that the Ombudsman failed to ask himself whether the accident was expected from the perspective of the Claimant. He submits the Ombudsman’s reasoning was muddled when he determined: “Mr S also says the policy should be construed from the viewpoint of the insured, but that doesn’t mean whatever he asserts must be accepted without question.” Allied to this first point he also submits the Ombudsman further erred because “he failed to take account of the legal proposition that a foreseeable outcome may nonetheless be unexpected. He appears to have reasoned that the fact that a letter might be sent (because a letter was previously sent in 2019) meant that the sending of the 2024 Letter was not unexpected. The Letter was not the natural result of a natural cause. This is not surprising. A previous accident does not make the experience of a second accident expected.”
Secondly under Ground One, Mr Johnston submits there was a further error, in as much as the Ombudsman: “failed to appreciate that the question for him to decide was not whether the Letter was the natural consequence of the Claimant’s conduct but whether his injuries were a natural consequence of the Claimant’s conduct.” He submits that the Ombudsman was focused on the accident and not the injury.
Thirdly under Ground One and very much related to his second sub-ground, Mr Johnston submits the Ombudsman overlooked the second category of insurable accidents in respect of which the question of intention relates to the injury itself, not the act that caused the injury. That is to say the Ombudsman did not address his mind to the question of intention and ask whether the Claimant intended to cause his injury.
Mr Johnston advances a fourth criticism which he terms as the fourth Dhak question which he submits must be answered in the affirmative. He submits a Dhak “intervening cause” took place, given the Claimant’s father instructed his Dubai lawyers to send the July 2024 letter to the Claimant. The Ombudsman viewed the complaint as a potential self-injury case, therefore answering the fourth Dhak question of the intervening cause was a critical step in the analysis and was not undertaken.
Mr Hopkins (supported by Mr Tomlinson) submitted that “accident” must be interpreted in the context of the language of the insurance policies, namely “a specific or sudden accident” which is followed by “that causes your death or bodily injury”. It is noted that the Ombudsman did not find that the receipt of the July Letter did not cause the Claimant psychiatric injury. The Ombudsman found on the facts the July 2024 letter was the natural and direct consequence of his own actions and objectively foreseeable, whether or not the Claimant subjectively foresaw the consequences of his actions. Mr Hopkins submits the four Dhak questions read in their proper context make clear that the issue of reasonable foreseeability is key. The Ombudsman was correct to conclude that the Claimant could reasonably have foreseen the consequences of his conduct in sending his father the harassing messages. Those consequences included exacerbation of pre-existing psychiatric difficulties as set out by Dr Beckett. Mr Hopkins seeks to make good this submission from the Claimant’s own evidence in the form of a WhatsApp he sent to his father on 24 June 2024: “Are you REALLY cutting off phone communication with me again after knowing the disastrous consequences it had for me in 2019???!!! Are you completely bloody mad???”. Lastly Mr Hopkins submits it is clear the Ombudsman did address the fourth Dhak question ‘whether there had been a fortuitous cause that intervened’ because reading the decision as a whole, it is clear the Ombudsman concluded the July 2025 letter was not a fortuitous event/cause.
At the conclusion of the hearing I directed the parties to set out where they disagreed on the ratios of three key authorities and they filed a helpful note on 6 May 2026. I summarise this below.
In Chief Adjudication Officer v Faulds [2000] 1 WLR 1035 the court had to consider section 94(1) of the Social Security Contributions and Benefits Act 1992, which provided that: “Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4th July 1948 by accident arising out of and in the course of his employment […].” The ratio concerns the Claimant’s failure to present evidence to show that his PTSD had been attributable to (caused by) the shock he experienced from attending any single incident. The appeal was allowed because it is necessary to find a causative event that is separate from the injury (per Lord Hope (with whom Lords Browne-Wilkinson and Mackay agreed) and Lord Clyde both in the majority). The injury and the accident must be separate events. Obiter, their Lordships held that:
An event that caused an accident may be foreseeable but the injury may nonetheless be caused by an accident (per Lord Hope at [1043F] approving the reasoning of the Extra Division below).
“…[W]hether there has been an accident requires particular consideration to be paid to the victim. At the least the accident cannot be something which he intended to happen. Where his injury came about through the operation of some external force, that operation must have been something which he did not intend to happen. Where his injury has followed on some action or activity of his own, then the consequences of his doing what he did cannot have been intended by him. The mischance or the mishap was something which was not in any way wanted or intended. It was not meant to happen.” (per Lord Clyde at [1052E-F])
The Claimant and Defendant (and Interested Party) however cannot agree on other matters that flow from this decision. The Claimant submits: “This reiterates the importance of intention (by reference to Lord MacNaughten’s test in Fenton). This also reiterates the fact that an event may be foreseeable, but both the event and/or the injury caused by it may still be accidental.” Whilst the Defendant submits: “The remark stands for no more than that if the victim intended the outcome, there is no accident. It does not affect the holdings in De Souza and Dhak. It is in any event obiter, in a case on the Social Security Contributions and Benefits Act 1992, not an insurance policy.”
De Souza v Home and Overseas Insurance Co. Ltd. [1995] LRLR 453 is particularly relevant. The policy provided cover for “accidental bodily injury caused solely and directly by outward violence and visible means”. The reasoning in Welford (1st edn.) pp 295–296 and 299 is adopted by Mustill LJ as “representing his own opinion”. Broken down:
The word accident “involves the idea of something fortuitous and unexpected as opposed to something proceeding from natural causes…”
There are two cases in which an injury may be caused by an accident: “where the injury is the natural result of a fortuitous and unexpected cause…” and “where the injury is the fortuitous and unexpected result of a natural cause… In this case the element of the accident manifests itself not in the cause, but in its result.”
An accident has not occurred where the injury is the “natural result of a natural cause.” i.e. where neither the event nor the injury are unexpected.
As regards human agency, the same principles apply where the injury is caused by the act of the third person or is caused by the act of the assured himself.
Welford continues “A man must be taken to intend the ordinary consequences of his acts, and the fact that he did not foresee the particular consequence or expect the particular injury does not make the injury accidental if, in the circumstances, it was the natural and direct consequence of what he did, without the intervention of any fortuitous cause.”
The policy did not respond because: (1) there was no “injury” because the deceased “unfortunately became ill and died”; (2) there was no element of accident in the deceased’s illness because “there was normal sun, normal heat, and normal exposure to them, which for some reason sadly led to Mr. De Souza’s death”; (3) there was no “violent” event. There was no suggestion in this case that the deceased intended to cause himself injury. The “outcome was of course unexpected and unwished for”.
Mr Johnston submits: “The above passages are clear that an accident may be either unintentional or unexpected: both form a necessary step in the analysis. In De Souza, the deceased did not intend the event or the injury. As regards ‘self-injury’ “An injury which is the natural and direct consequence of an act deliberately done by the assured is not caused by accident.” This encompasses both ‘limbs’ outlined above in relation to foreseeability (event and injury), plus the element of intention: “deliberately done”. Mr Hopkins takes a different view, and submits: “As regards ‘self-injury’ “An injury which is the natural and direct consequence of an act deliberately done by the assured is not caused by accident.” In the foregoing, “deliberately done” attaches to “act”, not “injury”. It follows from the points at paragraph 48 above, the case stands for the proposition that an absence of intention to injure oneself does not necessarily mean the injury is an accident. As with all the insurance policy cases, it stands for the proposition that whether something is an accident within the meaning of the policy needs to be considered in context and in the light of the policy wording. It does not stand for the proposition that the court must ask itself whether the insured intended to injure themselves. There was no suggestion the deceased so intended.
I was also referred to Dhak v Insurance Company of North America (UK) Ltd [1996] 1 WLR 936. The policy provided cover for “Bodily injury caused by accidental means”. The insurer denied the deceased had suffered bodily injury and if any bodily injury had been caused, denied this had been caused by accidental means. These two points were in issue on appeal. Asphyxia is a bodily injury. The submission put to the Court was that “English law did not distinguish between an accidental result and accidental means”. That was rejected because Mustill LJ’s finding on this point in De Souza was not obiter. Accordingly, it was the ratio in De Souza and this case that an accident may manifest in the event or the injury. In considering what could be foreseen one must apply the standard of foresight of the reasonable person with the attributes of the insured.
This case led to greater dispute between the parties. Mr Johnston submits: “When assessing the second limb of De Souza, in addition to the matters identified in De Souza, when looking to intention, one should consider the possibility of a “calculated risk” [949H]. The proper approach is to ask:
“(a) Did the insured intend to inflict some bodily injury to himself?
(b) Did the insured take a calculated risk that if he continued with that course of action he might sustain some bodily injury?” (These are both matters that go to intention).
“(c) Was some bodily injury the natural and direct consequence of the course of conduct” (This reflects the foreseeability test from De Souza).
“(d) Did some fortuitous cause intervene?”
In this case, the answer to (b) and (c) was yes. The answer to (d) was no. The deceased took a calculated risk by drinking to excess and bodily injury was foreseeable by the deceased who was a ward sister and trained nurse and therefore knew about the medical dangers of drinking to excess. Furthermore, no fortuitous cause intervened since her death was caused entirely by her own actions. Whether or not the insured intended to cause injury to herself is to be taken from the time of the event in question.”
Mr Hopkins’ position is different. He submits: “The words "caused by accidental means" are a clear indication that it is the cause of the injury to which the court must direct its attention. The correct approach to the question of cause was to adopt the analysis of Mustill LJ in De Souza and, in addition, one should consider whether the insured took a calculated risk. As there was no suggestion the deceased intended any bodily injury to herself, one had to examine the second to fourth questions posed, that is: (b) Did the insured take a calculated risk that if he continued with that course of conduct he might sustain some bodily injury? (c) Was some bodily injury the natural and direct consequence of the course of conduct? (d) Did some fortuitous cause intervene? In this case, applying the standard of foresight of the reasonable person with the attributes of the insured, including that Mrs Dhak was a ward sister with many years of experience as a nurse, Mrs Dhak must be taken to have foreseen what might happen in the event of someone drinking to excess. That is, the answer to question (b) was “yes”, she took a calculated risk, and therefore her bodily injury was not caused by accidental means. The case therefore stands for the proposition that if, on an objective standard, the insured must be deemed to have taken a calculated risk, then the bodily injury was not caused by accidental means. It does not stand for the proposition that the court must ask itself whether the insured intended to injure themselves. There was no suggestion the deceased so intended.”
In respect of the over-arching criticism which underpins Ground 1, I reject the Claimant’s submission that the Ombudsman misunderstood his role when he stated that “it’s not my role to determine the law”. The Ombudsman’s role is not to determine the law, that would seek to import into the informal Ombudsman’s dispute resolution approach an enhanced role much closer to the role of a court of record. The Ombudsman well understood, however, he had to apply the law and he was also aware that he could depart from the law to determine what was the fair and reasonable. There is no reasonable suggestion reading the Decision as a whole that the Ombudsman concluded he could apply the law incorrectly. The Ombudsman did apply the case law provided to him. It is clear he applied: De Souza, Faulds and an extract from the textbook Welford. He applied these authorities for the purposes of applying the law to the complaint before him.
The first sub-ground under Ground One is that the Ombudsman misapplied the case law when determining whether the accident was expected. Mr Johnston submits the Ombudsman erred by failing to ask whether the accident was expected from the perspective of the assured. He criticises this passage from the Decision: “Mr S also says the policy should be construed from the viewpoint of the insured, but that does not mean whatever he asserts must be accepted without question”. It is said that if the Ombudsman had approached the question of whether the accident was unexpected from the perspective of the Claimant, he would have arrived at the opposite conclusion and found the July 2024 letter was unexpected. Mr Johnston submits the legal error was failing to apply the proposition that a foreseeable outcome may nonetheless be unexpected. Complaint is also made that the Decision uses the term “entirely unexpected” rather than “unexpected”.
I reject the Claimant’s submissions on this ground. The Ombudsman did not misapply the law. On page five of the Decision he noted the Claimant’s submission after his provisional decision that “The question of whether or not the injury was accidental is to be assessed from the perspective of the victim”. It is clear therefore he had this in mind. The Ombudsman references the decisions in Faulds and De Souza. The Ombudsman was correct to conclude that whatever the Claimant asserted need not be accepted without question. Furthermore the Ombudsman considered the July 2024 Letter in context, when he concludes “It wasn’t something that happened in isolation or something that would have been entirely unexpected.” It seems clear to me therefore that the Ombudsman was considering the receipt of the July Letter from the perspective of the Claimant.
In any event, the facts of Faulds and Connelly v New Hampshire Insurance Co. 1997 SLT 1341 are both very different to the facts of the Claimant’s insurance claim. In Faulds the court held that a fireman discharged from work on the grounds of PTSD could still make a claim for industrial injuries compensation because an accidental injury could be caused by events which might be foreseeable or expected. The headnote states (emphasis added):
“that "by accident" had to be given its ordinary meaning and injury could be caused by accident even where the event or events causing injury might be foreseeable or might be expected to be encountered by a person carrying out normal, hazardous duties, if these were unplanned and unintended.”
Whilst in Connelly the court concluded that the accident (a fireman suffering PTSD from seeing the burned bodies of a mother and child) was foreseeable but that did not exclude it from the definition of accident because the sight of the burned mother and child were fortuitous events, even for a fireman. The headnote states:
“That with regard to the question of whether the injury was accidental, the question was whether there was something fortuitous or unexpected in the circumstances which led to the injury, and the distressing events at which the pursuer had to attend were sufficiently unexpected and had sufficiently unexpected consequences to provide the necessary fortuitous element.”
Lord Coulsfield sitting in the Outer House of the Court of Session held:
If the defenders' argument were well founded, it would apply to injuries of many different sorts sustained by a fireman in the course of attending incidents. It would apply to burning injuries or injuries caused by stumbling over some obstruction in the course of attending at a fire. It is obvious in the present case that it was intended that the plan should cover accidents sustained in the course of occupation as a fireman. The question then is whether there was something fortuitous or unexpected in the circumstances which led to the injury to the pursuer, in the present case. In my view, at least in regard to the second incident, it is reasonably clear that there was. The pursuer was exposed to the sight of the burned bodies of a mother and child.
He goes on to conclude that:
The injury and its consequences can, I think, be regarded as fortuitous and unexpected just as much as the case in which a person suffers a spinal injury through lifting a heavy burden, which is another of the examples given in the passage above quoted from Welford.
The factual context of the pursuers’ claims in Faulds and Connelly are sufficiently different that they offer little support to the Claimant’s case. He was neither carrying out normal hazardous duties nor was he claiming under a particular policy provided for his profession.
The Ombudsman had well in mind the legal proposition that a foreseeable outcome may nonetheless be unexpected. That is because he quoted this from Faulds, see: “the word 'accident' should be given its ordinary meaning of something happening unintentionally (an unlooked-for mishap or an untoward event), and an accident which was foreseeable was still an accident”.
Therefore on the first sub-ground, I am satisfied that the Ombudsman did not fall into the errors as advanced by the Claimant. As I have shown above, he did ask whether the accident was expected from the perspective of the assured and he did take into account the legal proposition that a foreseeable outcome may nonetheless be expected. Having properly directed himself to these legal principles, seen in the proper context of this claim, he was entitled to conclude ARAG’s decision was reasonable, namely, there was no sudden and specific accident.
The second sub-ground is that the Ombudsman failed to appreciate that the question for him to decide was not whether the July 2024 Letter was the natural consequence of the Claimant’s conduct but whether his injuries were a natural consequence of the Claimant’s conduct and related to this is the third sub-ground namely the failure by the Ombudsman to consider whether the injury (not the letter) were intended. I take these two sub-grounds together.
In Dhak the assured was a ward sister who drank to excess and died of asphyxiation. Her insurance policy provided for cover for “bodily injury caused by accidental means.” The court concluded that it has not been established that the bodily injury was caused by accidental means within the meaning of the policy and that ‘caused by accidental means’ are a clear indication that it is the cause of the injury to which the court direct its attention (947 G). Neill LJ went to hold that “the terms of this policy require a court in this country to concentrate on the cause of the injury and to inquire whether the injury was caused by accidental means.” Neill LJ then quotes Mustill LJ’s analysis from de Souza and his acceptance from the learning in Welford on Accident Insurance. He then goes on to discuss accidents not of natural causes but “of the intervention of human agency” and holds (my emphasis added):
“An injury which is the natural and direct consequences of an act deliberately done by the assured is not caused by accident. A man must be taken to intend the ordinary consequences of his acts, and the fact that he did not foresee the particular consequences or expect the particular injury does not make the injury accidental if, in the circumstances, it was the natural and direct consequence of what he did, without the intervention of any fortuitous cause.”
Neill LJ goes on to describe how Mustill LJ summarises the fact that Mr de Souza did not suffer an accident. Mustill LJ’s analysis above feeds into Neill LJ’s questions (a), (c) and (d). As I set out below, Neill LJ adds an alternative to (a), namely his question (b) to properly address the facts of Dhak which were different to de Souza. The purpose of the (a) and (b) tests is to exclude from the definition of accident, deliberate acts by the insured – that is clear from Mustill LJ in de Souza. Neill LJ added the test at (b) to cover the wider category of cases where the insured did not intend injury, but nonetheless acted deliberately by way of a calculated risk.
The ratio of the case is set out Neill LJ at 949H to 959A where he holds (emphasis added):
In my judgment, however, the correct approach to the question in this case is to adopt the analysis approved by Mustill LJ in the de Souza case, 20 July 1990. In addition one should consider whether the insured took a calculated risk. I would put the matter as follows. Where an insured embarks deliberately on course of conduct which leads to some bodily injury one has to consider these questions. (a) Did the insured intend to inflict some bodily injury to himself? (b) Did the insured take a calculated risk that if he continued with that course of conduct he might sustain bodily injury? (c) Was some bodily injury the natural and direct consequences of the course of conduct? (d) Did some fortuitous cause intervene.
In this case there is no suggestion that the deceased intended any bodily injury to herself. One has therefore to examine the other three questions. At the same time one must take account of all the circumstances including the state of knowledge or presumed state of knowledge of the insured. In considering what could be foreseen one must apply he standard of foresight of the reasonable person with the attributes of the insured.
Neill LJ’s questions (a) (c) and (d) all flow from Mustill LJ’s summary from de Souza and question (b) is the addition in respect of calculated risk. I read Neill LJ to provide two gateways: one is that the claimant intended to injure himself or the claimant took a calculated risk in respect of injuring himself. The court was clear that Mrs Dhak did not intend to be injured so it went on to consider the alternative route of calculated risk. Intention is intention. Calculated risk is something less than intention which implies some form of recklessness. The court concluded the inhalation of vomit was foreseeable. Mrs Dhak was aware of the consequences and dangers of drinking excess alcohol and she must be taken to have foreseen what might happen if drinking to excess. She was a nurse. Her death was not the result of a fortuitous cause. It was the direct consequence of her drinking to excess. She took a calculated risk of sustaining some bodily injury. Even although she had not intended, she took a calculated risk and the injury was objectively foreseeable in the light of her attributes as a nurse.
The Claimant’s pleaded Statement of Facts and Grounds also relies on Hawley v Luminar Leisure Plc [2006] CP Rep 23. I note Hallet LJ summarises Dhak and De Souza at paragraph 106 and then says this:
This is consistent with “a basic rule of insurance law”, namely, “that a contract of insurance does not cover an assured against his deliberate or wilful infliction of loss, at any rate in the absence of express stipulate or necessary implication” see Charlton v Fisher [2002] Q.B. 578 at [51]
Did the Ombudsman apply this analysis? Importantly the Ombudsman summarised the Claimant’s main submission on these points in his decision at page five as follows (my emphasis added):
“It can’t be suggested Mr S expected to suffer psychiatric injury, intentionally caused himself a self-inflicted injury or had undertaken a reckless course of conduct which put him in serious danger of immediate bodily injury. And this was not the natural and direct consequence of Mr S’ course of conduct; a falling out between father and son was not likely to result in bodily injury.”
I take from this the Ombudsman had well in mind and understood the point being made in respect of the need for the Claimant to overcome the hurdle that ‘a contract of insurance does not cover an assured against his deliberate or wilful infliction of loss’ which of course led Neill LJ in Dhak to formulate his questions (a) and (b). Importantly, the Ombudsman recorded the submission that there was no intention on the part of the Claimant to be injured or to undertake a reckless course of conduct. The Ombudsman’s witness statement seems to me to capture clearly his thinking (albeit he does not refer to Dhak in his Decision or his witness statement), as he states at paragraph 48:
“Taking into account the history between the Claimant and his father, and his actions leading up to him receiving the letter, it seemed to me that the letter the Claimant received was the result of what he had done and it was the final result in a series of events. I highlighted several aspects of the history of the Claimant’s relationship with his father and the context in a part of my provisional decision which was copied into the Decision [C233]. These included that there had been a similar disagreement between the Claimant and his father in the past; that there was a sequence of events that led to the July 2024 letter, rather than it happening in isolation; that there was a history of behaviour like that which had occurred here, with support being provided and then withdrawn following a disagreement; and that the disagreement between the Claimant and his father was unresolved when the letter arrived. In considering the Claimant’s actions, I also had regard to the nature of the messages he had provided following my provisional decision. In this situation, I considered that it was reasonable for the Interested Party to conclude that there had not been a sudden or specific accident. Viewed in context, and as I explained in the Decision, I considered that the letter the Claimant received “was the natural and direct consequence of his own actions”; and that it “was the culmination of a series of events – and the consequence of his own actions. It wasn’t something that happened in isolation or something that would have been entirely unexpected””
I set out again the key passages from his Decision (my emphasis added)
“Mr S has provided copies of messages he sent to this father. He did send a conciliatory message but he didn’t receive anything in reply indicating they were reconciled. Mr S was upset that he was being cut off by his father. Having considered the nature of the messages, I don’t consider it would have been “entirely unexpected” (as Mr S claims) for a letter to be sent asking him to stop, and saying further action would be taken if he did not. The letter Mr S received was the natural and direct consequence of his own actions. An accident is not established simply by showing Mr S didn’t foresee the consequences of what he had done. As I’ve explained, detailed legal arguments have been put forward in this case. I need to take account of these arguments, but it’s not for me to determine the law; I need to decide what’s fair and reasonable, taking into account all the circumstances. Looking at all the circumstances, it seems to me the letter Mr S received was the culmination of a series of events – and the consequence of his own actions. It wasn’t something that happened in isolation or something that would have been entirely unexpected…”
This reasoning must be seen in the context the Ombudsman did not dispute the receipt of the letter caused the injury. That was never in issue. The injury and causation were not disputed by the Ombudsman. Therefore I interpret the Ombudsman’s conclusions not to dispute that the receipt of the July 2024 letter caused the psychiatric injury.
There is no doubt the Ombudsman concluded the Claimant’s communications to his father were deliberate acts on the part of the Claimant. The July 2024 letter in response, concluded the Ombudsman, was a direct and natural consequence. The Ombudsman does not say in terms that the Claimant did not intend to be injured but in my judgment that did not need to be said. It was obvious. But in any event, just like Dhak the real issue was not whether the Claimant intended to be injured, it was whether he took a calculated risk. Just as Neill LJ stated there was no suggestion Mrs Dhak intended to injure herself, so in my judgment it is also clear the Claimant did not intend to injure himself and that is reasonably inferred from the Decision and Mr Hopkins’ skeleton argument concedes this point on behalf of the Ombudsman. The Ombudsman cannot be criticised for not providing reasons in respect of a matter never in dispute. There is therefore no merit in the Claimant’s complaint that the Ombudsman never asked himself directly whether or not the Claimant intended to cause himself injury.
Rather the real issue the Ombudsman does address, is the fact the Claimant took a calculated risk in respect of the injury, because he notes the Claimant had been upset but pursed his correspondence and there were consequences from his actions. The Ombudsman was aware of the Claimant’s view that being cut off would have psychological consequence for him, as that information was contained in the Claimant’s own messages to his father, which were before the Ombudsman. Mr Hopkins is correct to emphasise that the Ombudsman did not find that receipt of the letter did not cause the Claimant psychiatric injury. Given it is accepted the July 2024 letter caused the injury, the Ombudsman sufficiently addressed whether the Claimant took a calculated risk of both receipt of the July 2024 letter and the injury, in respect of which there are no disputes over either injury or causation. The Decision has to be read as whole in the context of the evidence submitted to the Ombudsman. Therefore, the Ombudsman’s decision sufficiently addressed the Dhak (a) and (b) questions, seen against the factual context. As I have set out above at paragraph 69, the Ombudsman clearly noted the Claimant’s submission on the deliberate nature of his acts. The Ombudsman then goes on in the highlighted parts of his decision above in paragraph 71 to explain why the Claimant took a calculated risk of injury. In my judgment, the Ombudsman did not ignore the intention/calculated risk test and sufficiently dealt with the issue of ‘deliberateness’.
Given Mr Johnston’s emphasis on paragraph 50 of the Ombudsman’s witness statement, I have considered this against this ground. The witness statement said (my emphasis added):
“In making these findings, I focused on whether the Claimant’s receipt of the letter on 29 July 2024 was an accident. The Claimant’s counsel had stated that the question I needed to consider was whether the injury was ‘intended’. But the policy terms referred to an injury caused by an accident. It was therefore necessary to consider whether there had been an accident, not simply whether there had been an injury. Taking all of this into consideration, I concluded that even if the Claimant had suffered an injury, if it was not caused by an accident there was no cover in place under the policies.”
The Ombudsman was therefore considering the Claimant’s receipt of the letter, which I read as including any injury, which the Ombudsman did not conclude had not taken place. The Ombudsman did not restrict himself to the sending of the July letter. It is important to record this was a major part of the Claimant’s pleaded Statement of Facts and Grounds. Furthermore, the Ombudsman’s witness statement is clear he considered both accident and injury. He concludes there was no accident and again that seems to me a reference to the fact the Claimant acted deliberately by taking a calculated risk and as such there was no accident. Therefore, it seems sufficiently clear the Ombudsman considered the accident and the injury and paragraph 50 must be read in the context of the witness statement and the Decision as a whole.
At the conclusion of oral argument, I asked Mr Johnston if a husband slapped his wife and she slapped him back and her actions in slapping her husband were wholly unforeseen and unintended by the husband and this led him to have a psychiatric injury, whether this would amount to an accident. His submission was that this scenario would amount to an accident, but was factually very different from the facts which give rise to the Claimant’s claim to ARAG. It does not seem to be that this correctly states the position of the common law. Such a consequence would be absurd and the case law must be read in context. I reject the submission that in the context of these facts and in the context of these insurance contracts, an accident takes place where the insured did not intend to be injured but was injured by the natural and direct consequences of their own action without a fortuitous event taking place. Neill LJ was correct to identify the alternative ‘calculated risk’ test rather than intention, to permit the court to consider the insured’s own actions in circumstances where they did not intend to be injured but took a risk that they might be, as both the hypothetical slapping husband, and the Claimant in this case, demonstrate. The Ombudsman did not make an error of law in this regard and his reasons read in the Decision as a whole against the evidence were sufficient.
As Neill LJ held in Dhak, “At the same time [as considering the four questions] one must take account of all the circumstances including the state of knowledge or presumed state of knowledge of the insured.” The common law is clear: absent particular wording in an insurance policy deliberate acts by an insured will not amount to an accident. The tests in De Souza and Dhak are not statutes that must be mechanically applied. They should be applied in a common sense way to the facts. This is what the Ombudsman did, finding the Claimant was the author of his own misfortune and as such there was no insurance coverage in place under his policies.
Sub-ground 4 is that the Ombudsman failed to consider whether there had been a fortuitous intervening event. Mr Johnston submits that was the July 2024 letter. It is clear from the Decision and the findings, the Ombudsman considered the Claimant’s father’s response was a foreseeable response. It was not one that happened by chance or by accident. Indeed, as the Ombudsman notes, there was an earlier, similar 2019 letter. It was obvious the Ombudsman did not consider the July 2024 letter arose by chance or accident.
Having considered the matter carefully, the Ombudsman made no error of law. He was correct to apply the relevant case law identified by the parties and consider whether the Claimant’s actions were deliberate (intention/calculated risk) and whether the injury was the natural and direct consequences and whether there was a fortuitous intervening event. This ground is dismissed.
Ground Two: Inconsistency with Previous Ombudsman’s Decision
The Claimant submits the Decision is inconsistent with a previous FOS decision made by the same Ombudsman and involving this Claimant from 2021. The dispute between the Claimant and insurer related to cover for personal injury in circumstances where the Claimant asked his insurer to cover the cost of taking legal action against a relative in respect of the decision to cut off financial support for him which the Claimant said had caused him post-traumatic stress disorder.
Relevant parts of the Ombudsman’s 5 November 2021 are set out below:
My previous view was that what happened to Mr S wasn’t an “accident” because, on his own account, he had been in a dispute with his relative about his financial dependency, and their relationship had deteriorated over a long period. So rather than being unexpected, I thought it was both a deliberate act and the culmination of a longstanding issue. Although he suffered an injury, I didn’t think it was due to an accidental event. And it wasn’t unforeseen, it was the result of the breakdown of family relations.
Mr S says this conclusion was based on an inaccurate comment that he had been in dispute with his relative since 2019. As I explained in my first provisional decision, I make my decisions based on what I think is most likely to have happened, taking into account the evidence I have. Mr S had declined to provide further details of his court case, such as the pleadings that would have set out the basis of his claim. And the evidence I had indicated there was a series of events leading up to the withdrawal of support, so I didn’t think this was a sudden and unforeseen event.
Having looked at the further information now provided, it does seem that the withdrawal of support was unexpected. The recent barrister’s opinion has provided further comment on the relevant points to consider in relation to this. He advises (as did the previous advice) that the question of whether there was an accident is to be looked at from the victim’s point of view. But this advice is more detailed and refers to a number of authorities on the point.
My provisional conclusion was that, even looking at things from Mr S’ point of view, this wasn’t an unexpected event.
The material part relied on by the Claimant contained in the Ombudsman 5 November 2021 decision is as follows:
Importantly for my consideration, this advice refers in more detail to authority for the view that, provided what happened was unintentional from the victim’s point of view (an un-looked for or untoward event) then even if it was foreseeable, it would still be an accident for these purposes. So even if the withdrawal of support was foreseeable it was, as far as Mr S was concerned, unintentional. And he refers to medical evidence confirming the PTSD did result from a “sudden and specific event”.
Mr Johnston’s overall submission is that this purported difference of approach amounts to “Arbitrariness on the part of the ombudsman, including an unreasoned and unjustified failure to treat like cases alike, would be a ground for judicial review” in reliance on paragraph 49 of Heather Moore. His submission is developed as follows:
In the Decision the Ombudsman used the term “entirely unexpected” and this is too high a test for foreseeability.
In 2021 he: (a) properly appreciated the consequences of the obligation to view matters from the victim’s point of view; (b) recognised the centrality of intention to the legal test; and (c) recognised that the medical evidence was key when determining whether an injury had followed from a sudden and specific event. In 2025 he adopted a particularly strict definition of “accident”: “not entirely unexpected” and ignored intention altogether.
Mr Hopkins relies on the Ombudsman’s response in his Decision to similar submissions made by the Claimant’s legal team before he issued his Decision. Under the “My Provisional Decision” section the Ombudsman said this:
“Mr S has referred to a decision I issued on a previous complaint where I upheld the complaint. He says the circumstances are the same and so the outcome should be the same. I have considered this but in my view, the circumstances are not exactly the same. The events in June 2024 leading up to receipt of the letter are different and the letter itself was in response to Mr S’ actions. And they need to be considered in context; if a previous dispute led to support being withdrawn, it’s more likely that another dispute would lead to the same result, which would not therefore be unexpected.”
I agree with the Ombudsman that the factual background is not the same. A relevant distinction is that the July 2024 letter was the direct response to the many unwanted messages the Claimant sent to his father. The July 2024 letter was in response to the Claimant’s own actions. This is different to the “relative” (which I believe was the Claimant’s father) writing to him cutting off financial support. It is also relevant to place in context the fact that the Claimant’s father’s lawyer’s response in the July 2024 letter was seeking to protect the father from what was arguably a course of harassment from the Claimant. It is therefore no surprise that the Ombudsman approached the questions of foreseeability and intention differently. In 2021 the Ombudsman was clearly required to grapple with, and provide fuller reasons, in respect of questions of foreseeability and intention. The 2021 decision required more consideration of the deliberateness of the Claimant’s conduct in becoming injured. This was less obvious. Separately the reference to “not entirely unexpected” was not setting out a higher test on foreseeability, but rather simply mirroring the same language used by the Claimant.
I note the Ombudsman in his 2021 decision considered the key issue of deliberateness. He notes: “So rather than being unexpected, I thought it was both a deliberate act and the culmination of a longstanding issue”. However, when he changed his mind he focused on intention but made no reference to the related but different test in respect of deliberateness, namely ‘calculated risk’ (Dhak (b)). Therefore the 2021 decision is not a complete statement of the law in respect of the insured’s deliberate act(s).
I remind myself the 2021 and 2024 decisions should be read in a common sense way and not in a legalistic way. They are reports, not pleadings. This ground is dismissed.
Ground Three: Rationality
The Claimant’s pleaded case on this ground is as follows:
Linked to the findings in Ground 1, the Defendant took no account of the important and relevant consideration that various contemporaneous witnesses had witnessed the grave shock and distress caused to Mr Siddiqui through his receipt of the 22 July 2024 letter on 29 July 2024.
The Defendant failed to consider whether the receipt and reading of the letter on 29 July 2024 was an ‘accident’ when taken from the Claimant’s perspective.
The Defendant failed to consider whether the Claimant would be caused ‘injury’ through his actions of having nothing more than an argument with his father.
It was perverse and irrational for the Defendant to make a finding that an argument between father and son, the type of which had occurred on numerous occasions before and which had always resulted in father and son getting back together, should lead to such disproportionate and unreasonable action being taken as a father instructing lawyers to write a threatening letter to his disabled son, threatening to permanently cut off all communication with him under pain of an injunction and criminal offences.
Mr Johnston’s skeleton argument develops a number of somewhat different issues under the rationality ground of challenge. He says the Ombudsman acted irrationally by accepting receipt of the July 2024 letter was a shock for the Claimant but then went on to conclude it was not unexpected from the Claimant’s perspective. It is said the Ombudsman ignored the evidence in respect of the Claimant suffering a subsequent psychiatric injury.
The Ombudsman’s Decision summarised the evidence as follows:
His solicitor has confirmed that Mr S was totally shocked by the letter he received. He had had an argument with his father a month earlier, but this was a routine occurrence and his father would normally come back to him after a period. The solicitors advised Mr S to back off from communicating with his father to allow matters to cool down and for his father to re-engage with him in a positive manner as he usually did.
His psychiatrist says the psychiatric injuries were caused directly by the effect of receiving the letter in July 2024, which led to a marked deterioration in his mental state and also physical injury.
A witness has provided a statement that Mr S was extremely shocked when he opened the letter. While he had had an argument with his father, that was not unusual and they always reconciled after a period of time – receiving a letter like this was unexpected and shocking.
It is clear therefore the Ombudsman took into account the Claimant’s evidence as to shock and it is also clear, contrary to Mr Johnston’s skeleton argument (paragraph 86.1) the Ombudsman did not ‘wholly’ ignore the evidence as to injury. Mr Hopkins accepts the Ombudsman “did not find that receipt of the letter did not cause Mr Siddiqui psychiatric injury”. The Ombudsman therefore took into account the relevant considerations (the Claimant’s evidence).
The Ombudsman’s decision is also not irrational. The factual findings he made were plainly open to him. He was right to describe events as a process or a sequence of events. It plainly was. The Claimant pursued his correspondence over weeks before the July 2024 letter and there was a long history going back to 2019, even if there were interludes of better communication. Furthermore, I reject the Claimant’s characterisation of the July 2024 letter as “threatening” “extraordinary” and “menacing”. There is nothing particularly unusual about one family member seeking some form of non-molestation order (which may have criminal consequences if breached) against another family member if subjected to threatening communication. The Claimant seriously overstates the facts to seek to make good his claim of irrationality whilst submitting the Ombudsman marginalised critical evidence. It is the Claimant who has mischaracterised his own evidence.
I disagree the receipt of the July 2024 letter was not the natural consequences of events. The Ombudsman was well within the range of reasonable factual conclusions when he determined the July 2024 letter was not unexpected and was a natural consequence. The following factual matters relied on by the Ombudsman were well within reasonable fact finding:
There had been similar disagreements in the past.
The Claimant and his father’s relationship broke down and they had a falling out in June 2024.
There was correspondence and the Claimant’s father cut him off.
There was a sequence of events that led up to the July 2024 letter.
The July 2024 letter arrived when they had not resolved their disagreements and therefore the July 2024 letter did not arrive entirely unexpectedly.
The July 2024 letter arrived as a result of an unresolved disagreement.
Past events indicated that a disagreement of this nature was likely to lead to support being withdrawn.
These unassailable factual findings lead the Ombudsman to conclude: “the balance of evidence indicates that this was not a sudden or specific accident – it was the culmination of a dispute and a consequence of Mr S’ own actions.” Whilst this is stated in the preliminary findings section of the letter, the Ombudsman continues to take that view after consideration of the Claimant’s further submissions. Hence his ultimate conclusion that: “Looking at all the circumstances, it seems to me the letter Mr S received was the culmination of a series of events – and the consequence of his own actions. It wasn’t something that happened in isolation or something that would have been entirely unexpected.”
I would also observe that an event may also be both expected and shocking. There is nothing irrational about the Ombudsman’s decision, nor did he fail to take into account relevant matters or consider irrelevant ones. This ground is dismissed.
Ground 4: Alleged Error of Law As To The Meaning of “Arising From”
This is a separate ground of challenge unrelated to the other three. The Claimant’s Statement of Facts and Grounds assert that: “The Claimant’s case is that he entered into agreements with third parties for buying or hiring in goods and services, and he did this on the basis that he had a collateral agreement with his father that his father would provide funding for these purchases, which his father then reneged upon. Applying the plain words from the policy and considering the helpful analysis of Mr Kirby KC, as set out above, the dispute he now finds himself in with his father is one which is ‘arising from’ the agreement entered into for buying goods and services.”
Mr Johnston developed three sub-grounds. First he submitted the Ombudsman mistook the nature of the clause “cover is for contracts Mr S has entered into for buying or hiring goods or services” or “disputes about” such contracts. That is wrong. The cover is for disputes “arising out” of such contracts; it does not need to be directly about the contracts themselves. He submits the coverage is to cover disputes arising from those contracts. Secondly, he submits the Ombudsman narrowed the scope of the insurance contract by incorrectly considering disputes “arising from” the contracts for goods and services rather than disputes with the service providers. This is inferred by the Claimant because of the Ombudsman’s purported distinction between “consumer contract disputes” and “family agreements”. Thirdly, the Ombudsman was wrong to find a collateral contract was not one ‘arising from’ the main contract. He says the collateral contact owes its existence to the main contract and therefore a “dispute in relation to the collateral contract, therefore, arises from the main agreement and falls squarely within the scope of the cover.”
Mr Hopkins submits on the proper construction of the insurance contracts, the words “arising from an agreement or an alleged agreement which you have entered into in a personal capacity for: buying or hiring in goods or services; selling goods” do not embrace a collateral contract such as the one the Claimant alleged to exist between him and his father, under which his father was to pay for the costs of services the Claimant obtained under contracts with third parties. It is said the policy does not cover collateral contracts of the nature alleged by the Claimant. Mr Hopkins submits the Claimant’s criticism are “canonical” examples of the wrong way to read an Ombudsman’s decision.
I reject the Claimant’s first and second purported legal errors made by the Ombudsman. The Ombudsman was correct to note that it was for the Claimant to prove his claim. It seems little was said about the precise nature of the collateral contracts. The Ombudsman correctly identified the language of the insurance policy as “arising from” and then went on to use the term “about” but he also repeated the term ‘arising from’ – see for example the first bullet point of his reasons. The use of ‘about’ seems to me to be no more than a shorthand. He did not state “directly about” as the Claimant submits which might have suggested an overly narrow focus on the contractual arrangements. Moreover, Mr Johnston has not set out the actual practical difference between ‘arising from’ and ‘about’ in the context of the Claimant’s agreement with his father for funding for the purposes of the other contracts for goods/services with third parties. Furthermore, the Ombudsman understood and was experienced in dealing with insurance contracts. His use of the term “consumer contracts” was deploying a label for convenience and not improperly narrowing the scope of the coverage as the Claimant submits. His reference to “family agreements” is a reference to the nature of the Claimant’s disagreement with his father. I remind myself the Ombudsman’s decision is not a pleading. He understood the issues as against the insurance policy and his decision discloses no error of law.
I have not overlooked the parties’ rival submissions on the law under this ground, but they add little to the substance of the Claimant’s complaint under this ground. Even if the Claimant is correct and a ‘generous’ approach is taken to construction of the words in the agreement (see Wickham van Eyck (A Firm) v Norwich Union Insurance Ltd [2009] EWHC 2625 (Comm)) this does not demonstrate an error of law by the Ombudsman. This is in large measure because the nature of the Claimant’s purported collateral contract was never made very clear. The Ombudsman did not appear to rule out a generous approach to the Claimant’s purported collateral contracts, rather he concluded it was not fair for this to be covered, see: “He argues that, as the collateral contract takes its nature and existence from the principal contract, it can’t be said to be unrelated. That doesn’t necessarily mean it’s fair for an insurer to cover the costs of the legal dispute.” Furthermore, I agree with Mr Hopkins’ written submission that Fiona Trust and Holding Corpn v Privalov [2007] 4 All ER 951 and Etihad Airways PJSC v Prof. Dr. Lucas Flother [2020] QB 793 are of limited assistance given this case involves different parties between the main and the collateral contracts which was not the factual premise to Fiona Trust and Etihad. To that extent I prefer Mr Hopkins’ submission over Mr Johnston’s in respect of the Claimant’s purported third error of law and agree with Mr Hopkins that: “The FOS accepts the words “arising from an agreement” are wide words. But they are wide as to the issues between the parties to the agreement.”
For these reasons Ground Four is dismissed.
Conclusion
Notwithstanding the skill with which his case was presented, the challenges made against the Ombudsman’s Decision have no underlying merit. His claim is therefore dismissed.