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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Rai v Legal & General Assurance Society Ltd [2015] EWHC 170 (Comm) (03 February 2015) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2015/170.html Cite as: [2015] EWHC 170 (Comm)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LONDON MERCANTILE COURT

		3 February 2015

Introduction and essential facts

1. The claimant, Mrs Rai, is the widow of Mr Gautam Rai, who died in hospital in Hyderabad, India, on 24 February 2008 as the result of a road traffic accident a week earlier. She is the sole beneficiary of her late husband's estate under a will executed on 8 April 2007.
2. After a childhood in Kuwait (where she was born), then (from the age of seven) in India for five years, and finally in Dubai, Mrs Rai was introduced to and married the deceased in Delhi in 1996, when she was 18 and he 23. Their first child, a daughter, was born in 1998, by which time Mr Rai had begun studying IT. In 2000 Mr Rai obtained a UK work permit, and the family moved from India to London. He was employed for some months by a company called Mastech, engaged in consulting work for Phase Forward Europe Limited ("PFEL"). On 19 March 2001 he began to work directly for PFEL as a Senior Application Engineer under a contract of employment dated 1 February 2001. It provided (in Clause 7) that he would be employed at PFEL's offices at Maidenhead or such other place within the United Kingdom as PFEL might from time to time decide. The family moved to Langley, Berkshire (near to the Maidenhead offices), where Mr and Mrs Rai purchased a house at 51 Severn Crescent in December 2001. A son was born in December 2003, and all four members of the family acquired British citizenship in 2005. In 2006 the couple bought a second and larger house in Langley at 22 Welland Close, renting out the other property.
3. PFEL was a relatively small company, with initially fewer than ten employees rising to almost 100 by 2007, specializing in IT applications for the testing of pharmaceutical products and training clients in their use. It was the subsidiary of a substantial US parent company, Phase Forward Inc ("PFI"), with worldwide operations. In 2010 PFI was acquired by Oracle Corporation, and the business and assets of PFEL were transferred to Oracle Corporate UK Limited under an Asset Purchase Agreement in October 2010. PFEL was struck off the Companies Register on the application of its directors (now in effect Oracle) on 20 October 2012. But for this, I apprehend that, given the nature of the relief sought by the claimant (which I address later), PFEL might have been joined as a party to the present action. In an appropriate case it is normally possible to obtain the restoration of a company to the register to facilitate potential litigation, and some of the debate before me was concerned with whether (a) that was necessary or appropriate in the present case, and (b) if so, whether I should adjourn final adjudication on the substance of the dispute with a view to such restoration and joinder of PFEL.
4. Clause 3.4 of Mr Rai's contract of employment provided that:

"After three months continuous employment with the Company and subject to your compliance with and satisfaction of the applicable requirements of such schemes, you shall participate in any private health insurance scheme, death in-service benefits and long-term disability schemes as the Company may from time to time maintain for the benefit of its employees. The identity of the provider of the benefits shall be at the discretion of the company as shall the level of cover provided."

This was subject to the qualification in Clause 3.5 that:

"There shall be no liability on the Company to pay to you any of the benefits set out in clause 3.5^[1] if the insurers of the benefits fail to pay all or any amount under the relevant schemes."

That sub-clause added that:

"All benefits ... are subject to the terms of the applicable benefits scheme and of any related policy of insurance as in force from time to time."

The group insurance policy underlying the scheme was at that time underwritten by Canada Life.

5. In 2007 the defendants ("L & G") produced a more competitive quote than Canada Life for the renewal of the business which was accepted by PFEL. L & G came on risk on 25 July 2007 on the basis of PFEL's proposal and L & G's quotation, though the policy ("the policy") was not issued until 21 December 2007 (with a retroactive inception date of 25 July 2007). It provided for payment of the benefits payable under the policy to "the Grantees", defined as the trustees under the scheme, and in Clause 9 stipulated that none of its terms should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who was not a party to the contract. The proposal form indicated that the trustees were PFEL itself. I will so assume for the purpose of this judgment. While I have no positive contrary indication, it would have of course been clear from the trust deed. Unfortunately, and much to my surprise, the parties have failed to procure a copy of the scheme trust deed. L & G's practice was, I was told - though again I found it surprising - not to require production of such a document by an applicant where they were taking over the insurance of an existing scheme.
6. In these circumstances, even the general nature of the powers and duties of the trustees can only be based on educated surmise. Frequently, perhaps typically, such schemes, which require the approval of HMRC, are structured as discretionary trusts, under which the trustees have wide powers to determine to whom the proceeds of any insurance should be paid, though in practice they are likely to follow any letter of wishes signed by the employee and in default to pay the monies to his estate. That the trust was probably of this nature in the present case is suggested by the fact that, on 16 February 2004, Mr Rai signed such a letter addressed to the "Trustees and Scheme Administrators of the Phase Forward Europe Ltd Death in Service Scheme" requesting that the death benefits should be paid 100% to Mrs Rai (or in the event of a joint death to his two children in equal shares). Absent that, one might expect that they would in all likelihood have been payable or paid to the estate, of which Mrs Rai is the sole beneficiary and executrix.
7. Under paragraph 13 of the General Conditions of the policy the benefits assured were to "correspond to the liabilities of the Grantees under the Scheme" to the extent that they had been notified to and agreed by L & G, specified in Appendix A as 4 times the annual rate of the employee's basic remuneration at the date of death. Though in the absence of the scheme deed it is not possible to determine what the liabilities of the Grantees were, it is unlikely that they would have been less than the four-times multiple of basic earnings covered by the policy. Indeed, one might well expect them to be the amount agreed in the policy. In the list of 99 staff provided by PFEL on which L & G's quote was based Mr Rai was shown as then earning £45,689, though, on any view, in the light of the facts which I recount below, it is clear that this had changed by the date of his death.
8. Under Part 3 section 1 of the Schedule to the policy the assurance of any employee was to cease immediately if he ceased to

(a) be in Employment^[2], or

(b) meet the Eligibility Provisions set out in Appendix A, namely to be

"ordinarily employed and resident in the United Kingdom",

Part 3 section 2 went on to provide that:

"The assurance in respect of an Insured Member will be continued throughout any period during which he is temporarily absent from active Employment^[3] … The basis on which the assurance is continued is described in Appendix B."

Appendix B in turn stipulated that:

"The assurance in respect of an Insured Member during temporary absence as described in section 2 of Part 3 of the Schedule will continue:

(a) for a period of three years if such absence is caused by illness or injury

or

(b) for a period of one year if such absence is due to any other cause.

For the purposes of this provision in respect of an Insured Member who suffers a reduction in Earnings as a result of his temporary absence, Scheme Earnings will be fixed at the level applicable at the date immediately prior to the date of the first such reduction in his Earnings."

9. In early 2007 the Phase Forward group decided to expand into India and to use employees in their existing companies to provide technical and managerial support for a new office in Hyderabad. This was termed the "Returnee^[4] Programme" in a circular of 27 May 2007, which referred to the new Indian office as the "hybrid". It was, according to that document, envisaged that:

"The role will be a permanent transfer to the hybrid location, the returnees will be employees of PF India when that entity is established."

Mr Rai had already been sounded out in (or shortly before) April as to possible interest in going to Hyderabad and went there to explore matters that Easter. Following further discussions, he received a formal offer dated 11 June 2007 to "join our Phase Forward organisation in India as a regular full time Technical Manager (Consulting Services)" and "based in our hybrid facility in Hyderabad".

10. That offer, which was accepted by Mr Rai in an email on 18 June 2007, stated:

"You will be paid a gross salary at the rate of £49,344 per annum^[5] payable locally in Indian rupees by equal monthly instalments and based on conversion rates at the time you begin your new position. After six months employment in your new role, and every six months thereafter, we will review your salary against local market conditions in effect at that time and may adjust the salary down to a more competitive level. The maximum decrement at any one time will be no more than 10% and you will be given 30 days notice before the new rate becomes effective.

You will remain an employee of Phase Forward during this transition and will continue to be subject to the Phase Forward performance and peer review processes. Your local salary package will be adjusted by Phase Forward commensurate with those processes.

In addition to the gross salary you will receive a relocation package. The details of the relocation package are attached^[6] and the breakdown of local salary is still being finalised and will be provided to you shortly. Should Phase Forward determine that it no longer has a requirement for returnees during the first 12 months of your employment in India the Company would pay all reasonable costs associated with the return of you and your family to the UK. In addition, you would be offered a comparable position in the UK office should an appropriate opening exist at the time. In addition, should the above transpire and you decide to remain in India and not relocate to the UK or if no comparable position were to be available in the UK you would be given 60 days notice or paid for 60 days in lieu."

Though the letter speaks of the company as "Phase Forward", it is in my view clear from its terms and context that those words refer to PFEL. Indeed, at this point the India entity had not been created, and it was not until November 2007 that it was incorporated as Phase Forward Software Services India Private Ltd ("PF India").

11. Mrs Rai told me that she contemplated that the move to India would not last more than a year, intending to return in time for her daughter to take part in the next class academic year in which, aged 10, she would have sat for her 11 plus. I suspect that this was a less definite intent than she may since have come to believe, and I would have difficulty in finding that either at the time of their arrival in India or the date of Mr Rai's death there was anything like a firm joint marital plan to this effect.
12. On 26 July 2007 Mr Rai completed an HMRC form entitled "Leaving the United Kingdom", which produced in due course a confirmation by HMRC that he would be regarded as not resident and not ordinarily resident in the UK from 11 August 2007^[7]. In that form he stated that he would be leaving the UK, as he did, on 10 August 2007. In response to the question "Do you intend to live outside the UK permanently?" he replied "No", while answering "Yes" to the next question "Do you intend to live outside the UK for a full tax year starting on 6 April after your departure", i.e. until at least 5 April 2009. Though I cannot exclude that that he made a false declaration to HMRC (notwithstanding the warning in the form that he would thereby expose himself to possible prosecution), that is not a conclusion to which I would be prepared to come on the evidence before me.
13. On 10 August 2007 Mr and Mrs Rai went to India, followed a few days later by their children and nanny. They rented out their house in Welland Close. Though in his HMRC form Mr Rai had stated that over the next three years he would visit the UK office for regular business meetings (not exceeding ten days at any one time), by the time of his death he had returned to the United Kingdom only once –to attend for a few days with his wife a Phase Forward Christmas party at Stoke Poges. On that occasion, they sold the last of their two cars, having disposed of the first in July 2007.
14. In India, the family set up home in a rented semi-furnished flat in Hyderabad, and Mr Rai began work for the new Indian business. Mrs Rai believes that he also worked on UK-centred matters on the telephone and computer in the evenings when he returned home.
15. Such was the position in February 2008 at the time of the fatal accident to Mr Rai.
16. More or less immediately after Mr Rai's death PFEL advanced a claim to L & G for payment of a death benefit. It was rejected on the grounds that he was not ordinarily employed or resident in the United Kingdom at the time of his death. Reporting this to Mrs Rai in a letter dated 30 April 2008, PFEL added that their own legal advice confirmed that Mr Rai was not covered. Nonetheless they renewed the claim with the added contention that he was covered under the temporary absence provision; it was again rejected by L & G, after consideration by its appeals committee, in June 2008. PFEL had told Mrs Rai that it would in case of such a renewed rejection make a claim under the PF India policy. Mrs Rai signed a claim form for that purpose on 29 April 2008, but in the absence of any further disclosed documentation on this front I assume that it was progressed no further. Since the PF India policy had a cap of Rs 500,000, equal to only around £6,000, a claim under that policy may have appeared an unattractive course, especially if – as may well have been the case - it were inconsistent with recovery under the PFEL policy.

Change of employer ?

17. Before me there has been debate about whether by the time of his death PF India had been substituted as Mr Rai's employer^[8]. Though this had been expressly contemplated in the "Returnee Programme" circular^[9], the offer letter had stated that Mr Rai would remain an employee of PFEL^[10]. It remained of course open to the parties to change this by agreement.
18. There is no evidence of any written agreement to this effect. The papers disclosed by Mrs Rai (and I assume left by Mr Rai at his death) include a draft Employment Agreement for employment by PF India. It is however almost in the nature of a proforma, not identifying the proposed employee and containing blanks for important questions such as the role or nature of the job and the remuneration. While this may suggest that the possibility of a new contract with PF India had been raised with Mr Rai, the absence of anything more definitive would point against any concluded agreement.
19. Mr Rai's LinkedIn profile described him as "Director of international consulting operations, India at Phase Forward Software Pvt Ltd". This would probably be a fair statement of his commercial activity whatever his employment status, and I doubt if any reader of the profile would be likely to have any interest in the latter. The same comment applies to similar phraseology on his business card. I regard neither as going any real distance towards establishing that there had been a transfer of employment to PF India.
20. Reliance has also been placed by L & G on a change in the modality of payment of his salary and surrounding paperwork. Initially Mr Rai received his salary, payable monthly in arrears, in sterling into his UK account against payslips issued by PFEL with deductions for UK tax and N.I. and pension contributions. Matters changed with the payslip for January 2008, which was issued by PF India in respect of a salary in rupees and with a substantial deduction for withholding tax, and the same occurred with the payslip for February 2008. While the salary for January 2008 continued nonetheless to be credited in sterling to Mr Rai's bank account with Barclays in Bracknell, the February amount, again in rupees, was credited on 28 February 2008 to his account with the State Bank of India in Hyderabad. This might betoken a change in employment, but might also be explicable by an internal accounting arrangement between the two group companies in respect of an employee seconded from one to the other. Clearly, this is an area in which documentary or other evidence from PFEL and/or PF India could well have assisted, perhaps decisively.
21. Overall, on the evidence adduced so far before me, I would not be prepared to find that Mr Rai's employment had moved from PFEL. I am however loath to make a formal or final adjudication to this effect in the absence of material from PFEL, which might become available if the company were restored to the register and joined to the action and cast a new light on matters, and it would be unfair to L & G to do so in the present state of matters. In this connection, L & G has highlighted a statement of PFEL in a letter dated 30 April 2008 to Mrs Rai that Mr Rai was employed by PF India at the date of his death. Though that may only have been intended as a statement of where he was working^[11], it reinforces my view that it would be wrong of me now to determine this point irrevocably in favour of the claimant. In the remainder of this judgment I shall therefore do no more than assume in Mrs Rai's favour that PFEL remained Mr Rai's employer, and examine whether even on this undetermined assumption the policy should respond.

Ordinarily employed and resident in the United Kingdom ?

22. Under the Eligibility Provision in the policy the employee had to be both ordinarily employed and resident in the UK. I will consider these two questions separately, as in the submissions before me, but in reverse order.

(a) Ordinarily resident in the United Kingdom ?

23. "Ordinary residence" is an expression used historically in a number of statutes. It is not, however, a legal term of art (see Lord Scarman in Reg. v Barnet LBC, ex. p. Shah [1983] 2 AC 309 at 340). On the contrary, when it has fallen to be considered by the courts, they have sought to ascertain and elucidate the natural and ordinary meaning of the words, subject only to any variation or overtone which might be required by the context in which they were found: ex p. Shah at 340. That is little different from the approach required where the words (or the adjectival "ordinarily resident ") are included in a contract, and the authoritative judicial statements as to their natural and ordinary meaning thus provide, as the parties recognised in their submissions before me, important assistance in in the present case.
24. I proceed therefore on the basis of the oft-quoted words of Lord Scarman in ex p. Shah (at 343 and 344) that

""ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration …

There are two, and no more than two, respects in which the mind of the "propositus" is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.

And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

25. Following this guidance, I am in no doubt that Mr Rai was in February 2008 ordinarily resident in India. He had chosen to go and live there to work for Phase Forward in Hyderabad, a purpose which clearly had the necessary degree of continuity described by Lord Scarman. It matters not whether Mr Rai viewed his stay as indefinite (the finding to which I would incline on the basis of the evidence before me) or (if that were not so) when he (or his wife) contemplated or even intended that he might or would return to the United Kingdom.
26. Counsel for Mrs Rai reminds me that it is possible to be ordinarily resident in two countries simultaneously. Thus in Ikiki v Ikimi [2002] Fam 72 the Court of Appeal, applying Lord Scarman's guidance, held that a wife had been habitually resident in England for the one year required to enable her to present a petition for divorce, notwithstanding that she could by the same test also be regarded as habitually resident in Nigeria during the same period. In that case the couple had maintained matrimonial homes of equal status in both countries, and in the relevant year the wife had moved between the two a number of times dictated by the pattern of the school year of the children and the division of their holidays with her estranged husband, spending a total of 161 days in the London home. That picture is far removed from that in the present case^[12]. Apart from the brief return for the Phase Forward Christmas party, Mr Rai spent no time in the United Kingdom. He had at the relevant time no abode here, let alone for any settled purpose.
27. In short, I am satisfied that Mr Rai was not at the date of his death ordinarily resident in the United Kingdom.

(b) Ordinarily employed in the United Kingdom

28. The requirement (which I have assumed in favour of the claimant to have been satisfied) that the assured was and would remain an employee of PFEL is fundamental to the policy, so that the interpretation of the phrase "ordinarily employed in the United Kingdom" must proceed on that basis. The mere fact of being employed by a company based in the United Kingdom cannot therefore suffice to establish that the assured was employed in this country. Nor would it in my view correspond to normal linguistic usage.
29. In my view, the phrase poses a simple factual question: where, ordinarily, did the employee perform the acts which constituted his work for the employer? Sometimes, if perhaps rarely, the answer may not be straightforward, as in the so-called "base cases", where an employee resident in United Kingdom spends much or even all of his working hours in trips to various destinations abroad, e.g. to carry out audits or surveys, service machinery, or fly aircraft^[13]. The employee's working time may also sometimes be divided between two different places of work and his duties performed in both to an extent sufficiently substantial to justify the description "ordinarily" – for example, the CEO of a multinational company who is required to be regularly present in its offices in both London and New York, often maintaining residences in both cities for this purpose. No such difficulty arises in the present case. Everything done – and, more pertinently, everything ordinarily done - by Mr Rai for his employer was performed in India.
30. In short, I am satisfied that Mr Rai was not at the date of his death ordinarily employed in the United Kingdom.

Temporary absence?

31. As I set out earlier, Part 3 Section 2 of the policy provides that the assurance in respect of a member of the Scheme will be continued (i.e. will not terminate in accordance with Section 1) throughout any period during which he is "temporarily absent from active Employment" up to three years where the absence is caused by illness or injury or one year if due to any other cause, with any reduction in earnings attributable to the absence being ignored.
32. It is in my view clear that this provision is concerned with a situation where the assured remains in the employment of PFEL but does not in fact carry out any work under his contract. He or she remains employed but is inactive as regards rendering any services to the employer, either because of incapacitation or some other reason (an obvious candidate might be maternity leave). It is only to this extent that the exception bites on the Eligibility Requirements. It would thus for example preclude L & G from arguing, as might otherwise be the case, that cover automatically terminated at the date of the accident because thereafter in the few days before his death Mr Rai was no longer working and had therefore ceased to meet the Eligibility Requirements. But cover which had already terminated before the accident because Mr Rai had ceased to be eligible due to the non-UK location of his work and residence was no longer in existence to be "continued". Ultimately, the case for Mrs Rai must predicate that the matters which took Mr Rai outside the Eligibility Requirements by the time of the accident – that he was not ordinarily working or resident in the United Kingdom – resulted in his being temporarily absent from active employment. That is, in my judgment, not only wrong but illogical. Even more basically the claimant's argument fails inevitably on the facts: at the date of his fatal accident Mr Rai was indisputably working for his employer, and actively so.
33. In any event, Part 3 section 2 is concerned only with overriding the employment aspect of the Eligibility Requirements. It does not affect the parallel requirement that the employee should remain ordinarily resident within the United Kingdom, which was not Mr Rai's case.

Procedural aspects

34. Though in the light of my conclusion on the substantive aspects the claim must in any event fail, I will in response to the debate before me deal, albeit shortly, with the procedural questions which would otherwise have arisen.
35. Initially, the claim form sought a declaration that L & G was obliged to pay PFEL £197,376 in respect of Mr Rai's death^[14]. That was later amended to provide that the monies would become payable upon restoration of PFEL to the register. and to seek an order that L & G should make that payment within 21 days of receiving confirmation of the restoration. In the alternative, an order was sought that following a declaration of liability under the policy the proceedings should be adjourned to permit restoration of PFEL and its joinder to these proceedings before a final order for payment was made.
36. Notably absent from the opening skeleton argument on behalf of Mrs Rai was any consideration of the juridical basis for any entitlement to an order for payment, even to PFEL, the existence and nature of which was, to put it mildly, far from self-evident. The policy explicitly excluded the right of any third party to enforce the contract. There was no assignment in favour of Mrs Rai. The court was unapprised of the terms of the trust deed underlying the scheme, and such evidence as there was suggested that the powers of the trustees were likely to be discretionary, eliminating the possibility of a beneficial interest in Mrs Rai, either in her own right or as executrix of her husband's estate. Confronted with these difficulties, counsel for Mrs Rai eventually, and understandably, abandoned the claim for an order for payment, leaving for consideration only the possibility of declaratory relief.
37. In a tripartite situation such as that which confronts the court here the approach of the court, though always subject to a general discretionary consideration of all the circumstances, is primarily conditioned by whether the declaration will serve a useful purpose, as to which modern case-law has grown increasingly liberal. A useful summary was provided by Aikens LJ in Rolls-Royce plc v Unite the Union [2010] 1 WLR 318 at [120]:

"(1) the power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue. (5) The court will be prepared to give declaratory relief in respect of a "friendly action" or where there is an "academic question" if all parties so wish, even on "private law" issues. This may particularly be so if it is a "test case", or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised. In answering that question it must consider the other options of resolving this issue."

And in Milebush Properties Ltd v Tameside MBC [2011] PTSR 1654 at [87], having endorsed this summary in general, Moore-Bick LJ added:

"In my view the authorities show that the jurisprudence has now developed to the point at which it is recognised that the court may in an appropriate case grant declaratory relief even though the rights or obligations which are the subject of the declaration are not vested in either party to the proceedings. … I can see no reason in principle why the nature of the underlying obligation should be critical, although there may well be other reasons why in the particular case a declaration should not be granted. The most important consideration is likely to be whether the parties have a legitimate interest in obtaining the relief sought, whether to grant relief by way of declaration would serve any practical purpose and whether to do so would prejudice the interests of parties who are not before the court."

38. Consonant with this guidance, I do not consider that declaratory relief should be necessarily precluded by the claimant's lack of any beneficial interest in any monies which might be received by PFEL under the policy in respect of Mr Rai's death. Even in the latter case, a declaration could serve a useful purpose if it were in practice likely to result in (a) L & G paying PFEL (assuming it to be the grantee) and (b) PFEL passing the monies to Mrs Rai either as nominated beneficiary or executrix.
39. L & G cannot pay PFEL even if it is restored to the register, unless directors can be located or appointed who are both able and willing to act on its behalf in receiving (and giving a good receipt for) the money. This would seem problematic unless they were also prepared to act on behalf of the company in the exercise of its powers and discharge of its obligations as trustee of the erstwhile scheme. Since this would involve at least some expense in terms of time and money, the co-operation of Oracle to this end could not be guaranteed, though if it were forthcoming^[15] it may be thought improbable that PFEL would in practice exercise the powers under the trust deed to pay any monies received from L & G in respect of Mr Rai's death to anyone other than Mrs Rai.
40. Nor do I regard as in itself an obstacle to declaratory relief that the claimant is not party to the policy and is unable herself to enforce it or to compel its enforcement by PFEL. Viewed realistically, the substantive dispute on the meaning and application of the policy is between the two parties to the present action, and even a restored (and co-operative) PFEL would have no obvious interest in supporting either, let alone in siding with the insurers.
41. In closing submissions, L & G helpfully intimated that should I rule in favour of Mrs Rai it would not intend to re-open that question as against PFEL simply on the basis that it had not been joined into the present proceedings. On that basis even if the action were adjourned to permit such joinder, it would not have been necessary to revisit the question of liability. As I observed earlier, however, the absence of PFEL may have deprived L & G of evidential material in support of its case that in any event Mr Rai was by February 2008 no longer employed by PFEL, a point on which I have in consequence not thought it right to make any definitive finding. In these circumstances, L & G would have had to be at liberty to pursue this aspect further in any revival of these proceedings, and I would pro tanto not have considered it right to hold L & G to any concession to the contrary made before me. The same might also have applied as regards the identity of the grantee and hence payee under the policy, where the current evidence may properly be viewed as less than satisfactory. These are of course, as I earlier indicated, matters which I have assumed in favour of Mrs Rai in deciding that her substantive case on liability under the policy must nonetheless fail.
42. Had I reached a different conclusion on substance, I would therefore not have been satisfied that the matter could necessarily have been properly and fairly resolved, respecting the potential interests of all concerned, without restoration of PFEL to the register and also its joinder into the action. In these circumstances, it would not have been right to make any order at this stage other than perhaps an adjournment of the proceedings or a stay with liberty to apply, and I would have refused to make any of the declarations currently sought by the claimant.

Conclusion

43. The action will therefore be dismissed.

Note 1   This is an obvious error for Clause 3.4.    [Back]

Note 2   Defined as being in the employment of the Employer, viz PFEL.    [Back]

Note 3   See previous footnote.    [Back]

Note 4   The word “returnee” appears to envisage that the employees would all be persons who had earlier emigrated from India.     [Back]

Note 5   This is the figure (multiplied by four) used as the basis of the claim in the claim form.    [Back]

Note 6   This may have been the “Returnee Programme” circular to which I referred in Paragraph 9, and which contained such details.    [Back]

Note 7   Thus freeing him from liability to UK tax on income arising outside the UK, and entitling him to a possible rebate on income-tax paid in the current tax year.    [Back]

Note 8   Counsel for Mrs Rai raised the possibility of dual employment, but I can see no serious basis for such an analysis in the present case.     [Back]

Note 9   See paragraph 9 above.    [Back]

Note 10   Though the letter speaks of “Phase Forward”, it is clear in context that these words must refer to PFEL.    [Back]

Note 11   Indeed, it is unclear how otherwise PFEL could properly have advanced, as they did, any claim under the L & G policy rather than the quite different, and vastly less generous policy taken out by PF India.    [Back]

Note 12   It is also distant from the position in the bankruptcy case of Re Norris, ex. P. Reynolds (1888) 4 TLR 452, where in addition to a residence in Brussels the debtor, a US citizen, took a room on a continuous basis at the Hotel Metropole at Charing Cross, and went backwards and forwards between London and Belgium.    [Back]

Note 13   See for example Todd v British Midland Airways Ltd [1978] ICR 959 on the words “ordinarily works in Great Britain” in the former Trade Union and Labour Relations Act, 1974.    [Back]

Note 14   This was based on the basic salary in the offer letter of £49,344. It might however have to be explored whether that had been further altered in the light of the transitional provisions in the offer letter.    [Back]

Note 15   If not, it is quite unclear how matters might proceed, and counsel for the claimant was apparently unable to assist beyond a passing reference to the possible involvement of the Official Receiver.    [Back]