Avoncore Ltd and Canmont Ltd t/a Douglas Shopping Centre v Lesson Motors Ltd, Adam Opel GmbH, Opel Automobile GmbH and Vauxhall Motors Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Twomey
Judgment Date26 January 2022
Neutral Citation[2022] IEHC 34
Docket Number[2020/2194P]

[2022] IEHC 34

THE HIGH COURT

COMMERCIAL

[2020/2194P]

[2020/5895P]

Between
Avoncore Limited and Canmont Limited t/a Douglas Shopping Centre
Plaintiff
and
Lesson Motors Limited, Adam Opel GmbH, Opel Automobile GmbH and Vauxhall Motors Limited
Defendant

and

Nagham Mohsen
Third Party
Between
Callistoy Limited
Amari Shoes Limited
Sheehan Brothers Family Butchers Limited
Layered Approach Limited
Neville Jewellers Limited
Plaintiff
and
Opel Automobile GmbH, Adam Opel GmbH, Lesson Motors Limited, Nagham Mohsen, Canmont Limited and Avoncore Limited
Defendant

Discovery – Liability – Losses – Parties seeking discovery – Whether categories were relevant

Facts: A fire in the Douglas Village Shopping Centre in Cork on the 31st August, 2019 was alleged to be caused by a 2006 Opel Zafira B (the Vehicle), resulting in alleged losses of over €50 million. The first of two sets of proceedings was being taken by the owners/operators of the Shopping Centre, Avoncore Ltd and Canmont Ltd, for losses caused by the fire, while the second set of proceedings was being taken by the tenants of the Shopping Centre, Callistoy Ltd, Amari Shoes Ltd, Sheehan Brothers Family Butchers Ltd, Layered Approach Ltd and Neville Jewellers Ltd, for the losses they suffered. The manufacturer/distributors of the Vehicle, Lesson Motors Ltd, Adam Opel GmbH and Opel Automobile GmbH, were defendants in both sets of proceedings, while the driver of the Vehicle, Ms Mohsen, was a third party in the first set of proceedings but a defendant in the second set of proceedings. The owners/operators of the Shopping Centre were also defendants in the second set of proceedings. The High Court heard four discovery motions in relation to the two sets of proceedings: (Motion 1) discovery sought by the owners from the car defendants; (Motion 2) discovery sought by the manufacturer from the owners; (Motion 3) discovery sought by the manufacturer from the tenants; and (Motion 4) discovery sought by the distributors from the driver. The four discovery applications dealt only with liability issues.

Held by Twomey J that: (Motion 1) the Court would permit categories 1, 3, 7 and 9 (including right-hand drive vehicles), 10 (in the terms sought by the owners), 11, 14, 17 and 19 (including the reference to the UK), 21, and 23; (Motion 2) the Court would permit categories 1, 2, 4, 5, 11, 12, 14, 15, 18, 20, 21 and 30 (with a line in the sand date of 11th March, 2021), 3, 5, 6, 7, 8 and 9 (rejecting the deletion of a category of documents regarding fire safety applying to the reconstruction of the Shopping Centre), 19, 23, 24, and 31 (excluding sub-category (c) as that category was already covered by 19); (Motion 3) the Court would permit categories 5, 7A, 9(b), 10 (with a line in the sand date of 11th March, 2021), and 11 (inserting the following phrase after the word ‘results’ on the first line - “by which is meant fact evidence, excluding any interpretation of same”); (Motion 4) the Court would permit categories 8B (expanding the category to clarify that it includes documents which had been previously in the driver’s possession, power or procurement), and 9A.

Twomey J asked the parties to engage with each other to see if agreement could be reached regarding all outstanding matters without the need for further court time. Twomey J held that in case it was necessary for the Court to deal with final orders, the case would be provisionally put in for mention one week from the date of delivery of the judgment.

Discovery ordered.

JUDGMENT OF Mr. Justice Twomey delivered on the 26 th day of January, 2022

INTRODUCTION
1

. This case involves a fire in the Douglas Village Shopping Centre (the “Shopping Centre”) in Cork on the 31 st August, 2019, which received a lot of publicity at that time. It was alleged to be caused by a 2006 Opel Zafira B (“the Vehicle”) going on fire and in resulting in alleged losses of over €50 million.

2

. While this judgment is in relation to two sets of proceedings arising from the fire, which are being heard together, this Court has been advised that there are in fact 15 sets of proceedings already in existence, with an estimated eight further sets of proceedings yet to be instituted.

3

. In broad terms, the first of these two sets of proceedings is being taken by the owner/operator of the Shopping Centre for losses caused by the fire, while the second set of proceedings is being taken by the tenants of the Shopping Centre for the losses they suffered. The manufacturer/distributors of the Vehicle are defendants in both sets of proceedings, while the driver of the Vehicle is a third party in the first set of proceedings but a defendant in the second set of proceedings. The owner/operator of the Shopping Centre is also a defendant in the second set of proceedings.

4

. It is alleged that the Vehicle was parked on the second floor of the multi-storey car park in the Shopping Centre by the driver of the Vehicle, Ms. Mohsen, (“the Driver”), when it went on fire. It is further alleged that the fire then spread to adjacent cars, causing significant damage. The heat from the fire then caused structural damage to the car park, leading to the closure of the Shopping Centre and its subsequent reconstruction and re-opening over a year later on the 12 th November, 2020.

5

. As noted hereunder, there is a dispute about who is responsible, firstly for the start of the fire and secondly its spread, whether that be the Driver, the plaintiffs in the first set of proceedings (together the “Owners”) who are the owners and operators of the Shopping Centre, or the defendants who are the manufacturer and distributors of the Vehicle, or indeed some other party.

6

. Liability is hotly contested, with allegations by the Owners that the manufacturer/distributors of the Vehicle were reckless regarding the safety of others, while the manufacturer/distributors allege that the Owners failed, inter alia, to have sprinklers in the car park in breach of the relevant fire regulations. They say this omission is the difference between a fire which destroyed one car and a fire which destroyed the Shopping Centre. Added to all of this are claims that the Driver is in fact liable for the fire as she allegedly failed to return the Vehicle for its recall inspection. On top of this is the fact that the manufacturer/distributors say that relevant to the cause of the fire is the fact that the Driver had the coolant engine system repaired in the Vehicle on the eve of the fire (which information was shared between the Driver and the Owners, who are insured by the same company, some 18 months before it was disclosed to the manufacturer/distributors).

7

. A further peculiarity of this case arises from the fact that the two sets of proceedings are being heard together, combined with the fact that the insurer for the Owners is also the insurer for the Driver (i.e. AIG). Accordingly, as AIG is running the litigation on behalf of the Owners and the Driver, it could be regarded in some respects as, in effect, acting as plaintiff and defendant (since in the combined hearing the Owners will be plaintiffs and the Driver will be a third party and a defendant).

8

. It is against this rather complex backdrop that the discovery applications fall to be considered.

BACKGROUND
9

. Beginning on the 23 rd November, 2021, this Court heard four discovery motions over a four day hearing in relation to the two sets of proceedings, which are being case managed together and are to be heard together, arising from this fire.

First motion for discovery
10

. The first motion forms part of the proceedings (the “Owners' Proceedings”) taken by the Owners against the first, third and fourth defendants, who are both the sellers of the Opel Zafira B model (“Zafiras”) and the parties allegedly involved in its recall (collectively referred to as the “Distributors”). The second defendant is the manufacturer of the Opel Zafira B (“the Manufacturer”). The Distributors and the Manufacturer are together referred to as the “Car Defendants”.

11

. In this first motion, the Owners seek discovery from the Car Defendants.

12

. In this regard, it is clear from the pleadings that the Manufacturer is alleged to have negligently designed and manufactured the Zafira and so it is claimed that the Manufacturer is responsible for the fire in the Shopping Centre.

13

. The Distributors are alleged to have distributed the Zafira in Ireland and to have been involved in its negligent recall and so are also alleged to be responsible for the fire.

14

. The Driver was joined by the Distributors as a third party to the Owners' proceedings and Third Party Statements of Claim have been filed against the Driver by the Car Defendants alleging negligence regarding her failure to ensure that the Vehicle was free from defects as well as her failure to return the Vehicle for inspection as part of a recall of the Zafiras.

15

. The interests of the Distributors and the Manufacturer are very much aligned, insofar as they both allege that the Owners, through alleged fire safety failings, and the Driver, through her failure to return the Vehicle as part of the product recall, are the ones liable for the fire. The Distributors and the Manufacturer were previously under common ownership, however now the ultimate owner of the Distributor is PSA Groupe /Stellantis N.V (who also own Peugeot), while the ultimate owner of the Manufacturer is General Motors. Accordingly, these defendants are separately represented in these proceedings.

Second and fourth motion for discovery
16

. The second motion for discovery also forms part of the Owners' Proceedings and is a discovery motion by the Manufacturer against the Owners.

17

. The fourth motion is also part of the Owners' Proceedings and is one in which the Distributors seek discovery from the Driver.

Third motion for discovery
18

. The third...

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