AN insurance company is refusing to pay out on a €250,000 mortgage protection policy because one of the deceased policy holders failed to disclose prior medical history, the High Court heard.
Joseph McCabe's wife Marie McCabe died in August 2009, nearly four years after the couple took out the policy on a mortgage they had with National Irish Bank for their home in Ross, Mountnugent, Co Meath.
Irish Life Assurance is refusing to pay out claiming there was material non-disclosure by Ms McCabe of her medical history prior to taking out the policy.
Mr McCabe, and his daughter Clara, who is her mother's personal representative, are suing Irish Life for alleged breach of contract and negligence in refusing to pay out.
Mr Justice Anthony Barr ruled Tuesday (April 21) Irish Life is not entitled to an order the McCabes answer specific written questions in relation to the deceased's medical condition in advance of the hearing of the case.
He said it would be unfair to order the McCabes to furnish answers on affidavit to questions raised in pre-trial legal papers by the insurance company.
A number of questions were asked by Irish Life's lawyers in relation to Ms McCabe's hospital admissions, GP records and treatment between 1984 and 2005.
The questions had been based on extensive pre-trial disclosure of the deceased's medical records, Mr Justice Barr said.
Irish life argued if they McCabes were required to answer the questions, it would substantially shorten the issues which have to be decided at the trial of the action, the judge said.
The McCabes argued there were no simple yes or no answers to the questions. The issue was more complex and it would be necessary for the court to hear from two or three doctors who had treated Ms McCabe, they said.
This was not a case where Mr McCabe and his daughter were the only ones with the requisite knowledge, it was also argued.
Mr Justice Barr believed the McCabes were correct when they argued the questions did not lend themselves to simple yes or no answers.
"To force them to furnish such answers would be an injustice as the whole story would not be told", he said.
The judge also noted the McCabes had been unsuccessful in a complaint they brought over the matter to the Financial Services Ombudsman.
They had appealed that decision but those proceedings are on hold pending the outcome of the separate breach of contract case.
Danske Bank, trading as National Irish Bank, had originally been a co-defendant with Irish Life. However, the case against the bank was discontinued due to the fact that they could not bring separate proceedings against the bank once they made a complaint to the Ombudsman. Danske was later joined to the proceedings as a third party by Irish Life.