Supporting Documents:
 
THE SUPREME COURT
DETERMINATION SUPERWOOD HOLDINGS PLC, SUPERWOOD LIMITED, SUPERWOOD EXPORTS LIMITED, SUPERCHIP LIMITED, SUPERWOOD INTERNATIONAL LIMITED AND SUPERWOOD (U.K.) LIMITED PLAINTIFFS/APPLICANTS V
SUN ALLIANCE AND LONDON INSURANCE PLC., T/A SUN ALLIANCE INSURANCE GROUP/RSA INSURANCE IRELAND LIMITED, CREDENTIAL INSURANCE COMPANY LIMITED, CHURCH & GENERAL INSURANCE COMPANY LIMITED/ALLIANCE INSURANCE GROUP DEFENDANTS/RESPONDENTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court refuses leave to the plaintiffs/applicants to appeal to this Court from the Court of Appeal.
REASONS GIVEN:
Jurisdiction
1. This determination relates to an application made by the plaintiffs in the underlying proceedings for leave to appeal under Article 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Irvine J., Edwards J., McDermott J.), delivered on the 1st March, 2017,[2017] IECA 76. The order appealed against was made on the 8th March, 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there should be an appeal to this Court.
2. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The Proceedings
3. This application for leave arises from a judgment of the Court of Appeal, delivered against the background of one of the longest running cases in Irish legal history between the same parties. Following a trial of 116 days, O’Hanlon J. in the High Court delivered a judgment dismissing the plaintiffs/applicants’ claim on the liability issue. The case was appealed to this Court. Following a 16 day hearing, the appeal was allowed. (Superwood Holdings plc v Sun Alliance & London Insurance plc [1995] 3 I.R. 303.) The case was remitted to the High Court and heard in modules. The issue against one insurer was ultimately resolved. Following a trial of 281 days, the High Court (Smyth J.) delivered an oral judgment over three days, delivered in open court. The plaintiffs/applicants failed to beat the lodgement, and were granted the costs, up to the date of lodgement only. As a consequence, the plaintiffs/applicants faced a legal bill of some Ir. £5 million. The plaintiffs/applicants were unable to provide security for costs for the appeal, and the appeal to this Court was ultimately dismissed, Superwood Holdings Plc. v. Sun Alliance (No. 3) [2004] 2 I.R. 407. A subsequent application to the ECHR for delay resulted in Ireland being ordered to pay €3,800 plus interest to Superwood. (Superwood Holdings plc and others v. Ireland, App. No. 7812/04 [2011] ECHR 1309 (8 September 2011)) The plaintiffs/applicants brought a further application to this Court, and heard on the 25th of October, 2013, seeking in part to rely on the judgment of the ECtHR. The Court held a number of the reliefs were incapable of being granted, and thus, the substantive case having been dismissed many years before, this Court had no jurisdiction. ([2014] IESC 14). In purporting to rely on that judgment, in 2014 the plaintiffs/applicants launched a second set of proceedings claiming that the ultimate decision of the High Court in the first proceedings, by Smyth J., had been obtained by fraud. By a judgment and order of the High Court, McGovern J., on the 27th January, 2017, the plaintiffs/applicants’ second proceedings were dismissed on the grounds that they disclosed no cause of action, were frivolous and vexatious, and an abuse of process. The plaintiffs/applicants appealed the order and judgment of McGovern J., by Notice of Appeal to the Court of Appeal dated the 15th May, 2015. The original 61 grounds of appeal were reduced by direction of the Court of Appeal to 10 grounds.
4. The background to the claim is fully set out in the Court of Appeal judgment, Superwood Holdings Plc v. Sun Alliance [2017] IECA 76, from paragraph 7 onwards, up to the end of paragraph 16. It is unnecessary to rehearse this in any further detail.
5. The genesis of the motions before McGovern J. is described from paragraph 17 of the Court of Appeal judgment onwards, up to the end of paragraph 19.
6. In brief, before McGovern J. there were two motions in the second proceedings. First, the plaintiffs/applicants herein made an application to have the case remitted to the Commercial Court list under Order 63A, Rule 1(a) (i), of the Rules of the Superior Courts, which was granted on consent on the 30th July, 2014. The respondents/defendants then brought a motion to dismiss the second proceedings upon the exercise by the court of its inherent jurisdiction, and/or upon the basis that the pleadings did not disclose a cause of action, or that they constituted an abuse of process by reason of cause of action estoppel. Orders were also sought under Order 19, Rule 27, and Rule 28, to dismiss and/or strike out the plaintiffs/applicants’ claim, or elements thereof, on the basis that it was scandalous or vexatious. In a further motion, the plaintiffs sought leave to deliver interrogatories. Both motions were listed for hearing on the 27th January, 2015.
7. From paragraph 21 onwards of its judgment, the Court of Appeal sets out how the second proceedings were dealt with in the High Court before McGovern J. The High Court judge decided that he would deal with the motion to dismiss first. In his judgment and order therein, dated the 27th January, 2015, he directed that the proceedings be dismissed on the grounds that the second proceedings disclosed no cause of action, that they were frivolous and vexatious, and on the grounds that they were an abuse of process. The High Court judge also held that, having regard to the history of events between the parties, that the plaintiffs/applicants should be restrained from bringing any further proceedings before the court against the respondents, without leave of the court.
8. It will be noted that at paragraph 38 of its judgment, the Court of Appeal in affirming the High Court judgment, also stated that the order restraining the initiation of proceedings (the “Isaac Wonder” order), should also apply to any proceedings contemplated against any person involved in the case on behalf of the defendants, including their solicitors and counsel, and any witnesses called, or experts retained by them. The judgment of the High Court judge was affirmed by the Court of Appeal in every aspect, save with the addendum just described which broadened the Isaac Wonder order.
9. The Notice of Application to this Court is extremely lengthy and detailed. It consists largely of a critique of the Court of Appeal judgment, and it might be inferred, repeats much of the material which was raised in the Notice of Appeal to the Court of Appeal, but with the addition of criticising the Court of Appeal findings therein, which upheld the High Court judgment in its entirety. The Notice of Application can be found on the Courts Website, as can the defendants/respondents’ response. It is both unnecessary and undesirable to deal with this in any more detail.
Discussion
10. Suffice it to say, that the totality of the Notice of Application indicates the extent to which the application now brought to this Court is fact-specific, deriving from the circumstances of this unfortunately prolonged litigation. Among the various complaints made about the first case are now (by way of illustration) the fact that a trial judge (Smyth J.), having delivered judgment viva voce, allegedly deprived the plaintiffs/applicants, but not the defendants/respondents, of the use of the transcript of the judgment. An issue is raised regarding an addendum to the High Court judgment. Certain points are raised regarding variations between the transcripts. There is criticism of the fact that the Court of Appeal failed to refer to letters exchanged between the applicants’ solicitors, and the judge’s medical advisor, in circumstances where the trial judge (Smyth J.), had had a period of ill-health during the hearing. There are also allegations that the plaintiffs/applicants’ solicitor was expected to correct the judgment relying solely on handwritten notes made by him over 4 days. Various other complaints are made. There is nothing showing fraud.
11. A consideration of the thorough and detailed judgment of the Court of Appeal, delivered by McDermott J., shows the following:
(a) The unique circumstances of the case.
(b) That each of the allegations raised by the plaintiffs/applicants was devoid of any substance.
(c) That, in holding as it did, the Court of Appeal applied the established jurisprudence of the Superior Courts in dealing with applications of this type. (See paragraphs 2 to 6 of the judgment of the Court of Appeal).
12. It is clear that this application is devoid of any merit. No matter of general public importance is raised. The second proceedings, which were the subject matter of the High Court judgment, were, it appears, based entirely on a subjective interpretation of certain observations made by this Court in the judgment delivered by Fennelly J. in Superwood Holdings Plc. & Others v. Sun Alliance & London Insurance Plc., T/A Sun Alliance Insurance Group and Others [2014] IESC 14. The Court of Appeal judgment points out that the applicants contend that the learned trial judge, McGovern J., “erred in ignoring the Supreme Court guidance to take a case on fraud and the issue of statutory accounts”. (See [2017] IECS 76 at par 25) The Court of Appeal judgment points out that this is clearly a reference to paragraph 27 of the judgment of Fennelly J. in the decision quoted. McDermott J., speaking on behalf of the Court of Appeal correctly observed that he did not consider that there was anything in the judgment of this Court that could, or should, be interpreted as an encouragement by the Supreme Court or as “guidance” to initiate a case based on fraud against the defendants; by alleging that the judgment of the High Court, delivered by Smyth J., or the judgment of the Supreme Court on appeal, had been procured by fraud.
13. The Court of Appeal held that the applicants “contrived” to interpret this judgment as an encouragement to initiate the current proceedings, and in the knowledge that they could only succeed in challenging the final orders made against them, if they established they had been procured by fraud. McDermott J. held at par 25, that “In doing so, the plaintiffs wrongfully advanced the Supreme Court judgment as a badge of legitimacy for an otherwise meritless case.”
14. This Court agrees with the judgment of the Court of Appeal. No issue of general public importance arises. The case is fact specific. The law applied in the High Court and Supreme Court was the established jurisprudence for dismissing frivolous or vexatious cases. It is not in the interests of justice that leave be granted. There must be finality in litigation, especially in this instance, where this case has taken up hundreds of days of litigation-time. The application is refused.
And it is hereby so ordered accordingly.
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