BOC Aviation (Ireland) Ltd and Others v LLoyd's Insurance Company S.A. and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Denis McDonald |
| Judgment Date | 19 March 2024 |
| Neutral Citation | [2024] IEHC 162 |
| Court | High Court |
| Docket Number | Record No. 2022/5538P |
[2024] IEHC 162
Record No. 2022/5538P
THE HIGH COURT
COMMERCIAL
Judgment of Mr. Justice Denis McDonald delivered on 19 March 2024
The application before the Court is brought not only on behalf of the plaintiffs in these proceedings but also on behalf of the plaintiffs in five other sets of proceedings in which an identical issue arises namely 2022 no. 5514p, 2022 no. 5759p, 2022 no. 5975p, 2022 no. 6087p and 2022 no. 6232p. All six cases are currently being case-.managed together and are listed for trial (on a concurrent basis) on 4 June 2024
While, there are a number of aspects to the application before the Court, in broad terms, this is an application by the plaintiffs for orders:
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(a) that they should be permitted to anonymise and redact the witness statement of one of their expert witnesses and that appropriate measures should be put in place to protect the identity of that witness from disclosure during the pre-trial stages of the proceedings;
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(b) that similar measures should be put in place in respect of other witnesses with similar concerns; and
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(c) that appropriate measures should be put in place to protect the identity of the witness from disclosure in the course of the trial. In particular, it is proposed that the part of the trial dealing with the evidence of this witness should take place in camera and that appropriate procedures should be put in place to ensure that nothing should occur or be said in the balance of the trial or in the judgment to be given by the Court or the order to be made by the court that might lead to the identification of the witness concerned.
This relief is sought in circumstances where the expert witness has expressed concern that, in light of the evidence to be given by the witness as outlined in a detailed report, the witness may be exposed to harm if the identity of the witness becomes known to the Russian authorities. The plaintiffs contend that, on the basis of the evidence before the Court, the granting of this relief would not infringe the requirement laid down in Article 34.1 of the Constitution that justice shall be administered in public save in “such special and limited cases as may be prescribed by law”. In this context the plaintiffs, in their written submissions, relied on the principles laid down by the Supreme Court in Gilchrist v. Sunday Newspapers Ltd. [2017] 2 I.R. 284 (“ Gilchrist”). They argued that both limbs of their application satisfy the rigorous test laid down by the Supreme Court in that case. However, in the course of the plaintiffs' oral submissions, counsel argued that the anonymisation and the other pre-trial relief sought do not engage the Gilchrist principles and that, instead, this element of the relief claimed falls to be considered by reference to a less strenuous standard.
It should be noted that, in order to preserve the position pending a decision by the Court, the application was heard in camera. The decision to proceed in that way was announced in open court during the usual Monday motion list when there were court reporters present none of whom sought to question the decision. That said, I am very mindful of the Court's obligations under Article 34.1. The requirements of that article must be applied and upheld by the Court whether or not there is opposition to a hearing otherwise than in public. But, in my view, it was necessary to hear the application in camera. To have proceeded in open court would have negated the very relief sought by the plaintiffs and would have made the running of the application futile. This was clearly acknowledged by the principal defendants opposing the relief sought – namely Fidelis Insurance Ireland DAC, Fidelis Underwriting Limited and Fidelis Insurance Bermuda Limited (collectively “Fidelis”). When the matter was mentioned on Monday 26 February 2024, counsel for Fidelis himself suggested that an in camera hearing would be necessary in light of the matters which Fidelis wished to raise about publicly available materials relating to the plaintiffs' expert which would inevitably have identified the expert had they been made public.
It will be necessary presently to consider the Gilchrist principles in some detail but, first I should briefly describe the background to this application and the respective positions of the parties.
In these six sets of proceedings the plaintiffs – all of whom are aircraft lessors – seek to be indemnified by the defendant insurers in respect of aircraft which they had leased to a number of Russian airlines. They contend that there has been a total loss of the aircraft arising from the Russian invasion of Ukraine and the subsequent measures taken by the Russian authorities which they contend have had the effect of detaining the aircraft within Russia. The plaintiffs claim that the combined value of the detained aircraft is in the region of €2.5 billion.
The plaintiffs' claims are made both by reference to War Risks and All Risks policies of insurance issued by the defendants. For present purposes, it is the War Risks policies which are relevant. Broadly speaking, the War Risk policies provide cover in respect of three potentially relevant perils. The first is War Risks A which covers war, invasion, acts of foreign enemies, hostilities, whether war be declared or not, civil war, rebellion, revolution, insurrection, martial law, military or usurped power or attempts at usurpation of power. The witness who is the immediate subject of this application has not addressed that peril. The witness's report is, however, relevant to the War Risks C and E perils.
War Risks C covers any act of one or more persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional. In turn, War Risk E provides cover in respect of confiscation, nationalisation, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any government, whether civil, military or de facto or public or local authority.
The witness has provided a very detailed report covering the events which occurred within Russia in the aftermath of the invasion of Ukraine. The report deals with the decisions taken by the Russian authorities, the manner in which those decisions were taken and the manner in which it is alleged there is an expectation by the Russian authorities (which is understood by those affected by the decisions) that such decisions should be obeyed and given effect even in advance of formal laws being decreed or enacted. The report provides extensive material in relation to the manner in which it is alleged the Russian authorities proceed and in particular in relation to their expectations and requirements in respect of the aircraft in issue, such aircraft being regarded as essential to maintaining connectivity within such a vast country.
The expert has expressed serious concern that the safety of the expert will be put at significant risk if the identity of the expert and the contents of the report become known. The expert believes that, in such circumstances, action may be taken against the interests of the expert arising from the contents of the report. Initially, the concerns of the expert were recounted in affidavits sworn by Ms. April McClements of Matheson solicitors (who act for the plaintiffs in four of the six sets of proceedings before the Court) but later a draft affidavit of the expert was produced which was furnished to the Court in a sealed envelope. It has been confirmed by counsel for the plaintiffs that the expert will swear an affidavit in the terms of the draft once appropriate arrangements can be put in place to have it sworn.
The All Risks insurers do not oppose the plaintiffs' application. That is probably to be expected given that the evidence of the expert is likely to assist them in arguing that, if the plaintiffs have suffered a total loss of the aircraft (as understood in insurance law), that loss was proximately caused by either War Risk peril C or peril E. That said, it is clear that, at an earlier point in the lifetime of this application, the All Risks insurers had concerns about some of the restrictions initially sought to be imposed by the plaintiffs on who would see the expert's report (either in its redacted or unredacted form). However, the plaintiffs have, more recently, agreed to broaden the terms of what I might call the proposed “confidentiality club” and that appears to have satisfactorily addressed the concerns previously expressed by the All Risks insurers.
As noted above, Fidelis has taken on the lead role in opposing the relief sought by the plaintiffs. Its position is supported by HDI Global. The concerns of Fidelis were set out in an affidavit sworn by Mr. Ian Lavelle on 12 February...
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