EMAG

The independent action group for current and ex Equitable Life policyholders, funded by contributions.

Equitable Members Action Group

Equitable Members Action Group Limited, a company limited by guarantee, number 5471535 registered in the UK

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Correspondence: 24/12/2003 - Letter from Paul Weir to the FOS

24 December '03 - Letter from Paul Weir to the FOS

Dear Mr Todd,

Thank you for the copies of the Carr/Moss opinion dated 30 September 2003 and the letter from Lovells concerning this Opinion. I will be considering this material and may wish to respond to it in due course.

You will appreciate that the relevance of a Counsel's Opinion relates only to the instructions that were given to Counsel regarding the preparation of that Opinion. Without those instructions there is a substantial risk that the Opinion will be misinterpreted or misapplied by third parties.

Accordingly, I must formally ask that the FOS requests disclosure of the instructions given to Messrs Carr and Moss so that claimants can judge whether the opinion is truly relevant to their circumstances. Similarly, I request a copy of the instructions given by FOS to Jonathan Hirst QC.

I am concerned that both these Opinions appear to make no reference to the Opinion of George Bompas QC which I supplied to you on 9 June 2003.

Mr Bompas' opinion contradicts both these opinions in many important respects material to my case. It also raises the question of fraudulent misrepresentation which does not appear to have been adequately considered in either the Carr/Moss or Hirst opinions. This would have a clear bearing on the quantum of damages being discussed in those opinions and cannot be ignored.

Your own adjudications on some of the lead cases implied that fraud was a possibility and did not discount the possibility of fraud having occurred. I quote:

"Under the provisions of the Misrepresentation Act 1967, it is for the person making the representation to prove that he had reasonable grounds to believe, and did believe, that the facts represented were true. On the basis of the evidence that I have seen and which is referred to below, I do not believe that Equitable Life can discharge this evidential burden. (I am not claiming that Mr F personally had knowledge of these matters at the time, but he was acting in his capacity as a representative of Equitable Life, and the claim lies against Equitable Life as such.)

"The statements were incorrect because Equitable Life's Board had received legal advice that it might lose the Hyman case, and it knew that if the case was lost the cost of being required to honour GAR pension policies to Equitable Life could be about £1.5 billion."

I also note that after six months ELAS has failed to publish any legal opinion refuting the Bompas opinion. This might suggest that they cannot.

I do not believe that it would be proper for the FOS to adjudicate on the lead cases or my own case without full consideration of the Bompas opinion which I have submitted to you. Please advise me in what way the Bompas opinion is being taken into account as it obviously must be.

Finally, in the light of the fact that Lovells' letter refers to specific lead cases, please could you advise me which lead case the FOS regards as representative of my own case, without which I cannot respond properly to the arguments that Lovells has advance.

Yours sincerely

Paul Weir

cc Jane Whittles, Principal Ombudsman
Walter Merricks, Chief Ombudsman