CDB Aviation Lease Finance DAC and Others v Lloyd's Insurance Company S.A and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 09 November 2023 |
| Neutral Citation | [2023] IECA 273 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Nos. 2023/222, 2023/199, 2023/210, 2023/215, 2023/227 Appeal Nos. 2023/219, 2023/197, 2023/209, 2023/216, 2023/226, 2023/224 |
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[2023] IECA 273
Costello J.
Allen J.
O'Moore J.
Appeal Nos. 2023/222, 2023/199, 2023/210, 2023/215, 2023/227
Appeal Nos. 2023/220, 2023/198, 2023/206, 2023/231, 2023/213
Appeal Nos. 2023/219, 2023/197, 2023/209, 2023/216, 2023/226, 2023/224
THE COURT OF APPEAL
CIVIL
JUDGMENT of Ms. Justice Costello delivered on the 9 th day of November, 2023
. The fallout of the Russian invasion of Ukraine on 24 February 2022 has been immense and felt throughout the world. These six related groups of cases are just part of that fallout. In these proceedings, the plaintiffs (hereinafter “the respondents”) allege that they are the owners of aircraft and aircraft assets (hereinafter “the aircraft” or “the aircraft assets”) which were leased to Russian lessees, and which have not been returned to them following the invasion of Ukraine. They allege that they remain in Russia despite the fact that they are entitled to their return. The respondents claim under various policies of insurance for the loss of the aircraft assets. The coverage provided by the insurance was in the first instance “all risks” coverage which excluded identified “war risk perils”. Coverage for the excluded war risk perils was provided separately, in some cases in another section of a single policy, in others in a second and separate policy. The war risks insurers retained a power to review the geographic scope of the war risks coverage upon serving notice to the insured. They were permitted to exclude certain territories from the ambit of the coverage by serving notice on the insured. The insured could then accept the review or reject it. If it was accepted, the coverage would continue outside the excluded territory. If they did not accept it, the coverage would terminate entirely.
. The respondents in the six sets of proceedings are Irish aircraft lessors. Until early 2022, each had leased aircraft to Russian airlines. They claim that following the invasion and the introduction of sanctions by the European Union, the United Kingdom, and the United States of America, they terminated the leases and sought the return of the aircraft. The vast majority of the aircraft have been unlawfully retained in Russia.
. The respondents each make the primary case that Russian state and political actors determined that foreign leased aircraft, including the aircraft assets, would not be returned to foreign lessors, including the respondents. They plead that in late February and early March 2022 a series of measures had been formulated and were being implemented to ensure that despite foreign lessors' demands and notices of termination, foreign leased aircraft, including the aircraft assets, would not be permitted to be returned to foreign lessors, including the respondents. The respondents each claim in the alternative that, if the losses were not caused by one or more war risk perils, they are entitled to cover under the all risks policies on the grounds that the aircraft assets have been lost by reason of the occurrence of one or more war risks perils and that they are therefore entitled to claim under the war risks cover.
. Following the invasion of Ukraine, the appellants served a number of notices to review geographic limits under the various policies (hereinafter “the notices”). The first such notice was allegedly served on 1 March 2022 and gave seven days' notice of the exclusion of Russia and Ukraine from coverage in respect of war risks. The appellants say that in consequence, war risks coverage extending to Russia expired on 8 March 2022 (or various later dates). The appellants deny that the war risks cover is engaged for a variety of reasons. In particular, they say, that if the aircraft assets have been lost, this did not occur before notices of geographic variation issued by or on behalf of the insurers to exclude cover with respect of Russia and Ukraine took effect.
. In response, the respondents rely on the “grip of the peril” doctrine – a doctrine established in English law derived from marine insurance – arguing that even if the aircraft were not lost until after cover was excluded in respect of Russia by the service of the various notices, they were in the grip of one or more insured peril and as such they are entitled to indemnity for the losses.
. While there is a considerable degree of overlap in the six sets of cases, nonetheless there are significant differences between the claims and the pleadings in the six sets of cases. The six groups of cases are being closely case-managed in the Commercial List of the High Court. The High Court directed that for the purpose of seeking to identify and agree the parameters of discovery, the parties should agree a list of the issues arising in any of the pleadings in any of the cases. Once this was done, the agreed list of issues, rather than the pleadings, would form the basis for seeking and agreeing categories of discovery to be made, though in a case of dispute, the issue would have to be decided by reference to the pleadings rather than the list of issues.
. As part of this case-managed discovery process, several meetings of counsel were held to try to reach consensus on categories of discovery. Where this could not be achieved, the disputed categories were referred to the court for resolution. The details of this bespoke process and its relevance to the issues on the appeal will be discussed further below. The High Court heard the claims in relation to the unresolved categories of discovery over two days and gave ex tempore rulings in respect of each disputed category. Thus, the categories of discovery to be made by the parties have been determined, either by agreement of the parties or by order of the court, save in respect of the single category which is the subject of these appeals.
. McDonald J. in the High Court directed the appellants to make discovery of category 1(ii)(b) as follows:-
“All documents evidencing any discussion or consideration of proposed or actual Notices of Cancellation in respect of the Aviation Assets or any of them in respect of Russia, Ukraine, Crimea/Republic of Crimea and/or/Belarus (including as to the validity, effect, rectification and/or clarification of any purported notice).
Temporal period 1 February 2022 to 31 March 2022”
Each of the appellants has appealed this order in their respective cases. This judgment is in respect of all thirty-three appeals.
. The trial judge first considered whether the category was relevant to an issue in the proceedings. He rejected the argument that it...
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