Cornhill v Min Agriculture and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Philip O”Sullivan
• Judgment Date: 13 March 1998
• Neutral Citation: [1998] IEHC 47
• Court: High Court
• Date: 13 March 1998

[1998] IEHC 47

THE HIGH COURT

No. 1505P, 1498P, 1664P, 1502P, 1338P and 1336P/1992

CORNHILL v. MIN AGRICULTURE & ORS

BETWEEN

CORNHILL AND OTHERS

PLAINTIFF'S

AND

THE MINISTER FOR AGRICULTURE AND FOOD

DEFENDANT

AND

FIVE SETS OF OTHER PLAINTIFF'S

AND

THE MINISTER FOR AGRICULTURE AND FOOD

DEFENDANT

Citations:

EAGLE STAR FRANCE

RSC O.28 r1

RSC O.19 r28

BELL V PEDERSON 1996 1 ILRM 297

KETTEMAN V HANSON PROPERTIES LTD 1987 AC 189

CROOPER V SMITH 1883 26 CH 700

AER RIANTA V WALSH WESTERN INTERNATIONAL LTD 1997 2 ILRM 45

SHEPPERTON INVESTMENT CO LTD V CONCAST (1975) LTD UNREP BARRON 21.12.1992 1993/5/1393

Synopsis

Practice and Procedure

Amendment of pleadings; criteria governing amendment; whether amendment necessary to ensure real issues in controversy before court; whether injury would be caused to Defendant if amendments allowed; whether amendments should be refused due to delay of Plaintiffs” standard of evidence required to ground application for amendment; O. 28, Rules of the Superior Courts

Held: Amendments allowed

Cornhill v. Minister for Agriculture and Food - High Court: O'Sullivan J. - 13/03/1998

1 JUDGMENT of Mr. Justice Philip O”Sullivan delivered the 13th day of March 1998.

2 In this judgment I am dealing with one motion in each of six actions referred to above brought by different Plaintiff insurance companies, all against the same Defendant, namely, the Minister for Agriculture and Food and all arising out of the same incident, namely, the destruction by fire of almost 7,000 tonnes of intervention beef on the 7th January, 1992 at the United Meat Packers Premises, Ballaghaderreen, Co. Roscommon. The several Plaintiff insurers rejected a claim by the common Defendant (hereinafter "the Minister") for an indemnity in respect of the loss, amounting to some £30 million, and have issued these six proceedings seeking declaratory relief on the grounds, inter alia, of non-disclosure.

3 For present purposes it is not necessary to set out the precise manner in which each of the Plaintiff's potential exposure arises or indeed the amount thereof. Furthermore, in each of the six applications now being dealt with similar, although not identical, issues arise relating to additional instances of alleged non-disclosure together with a claim that fire cover had been excluded by reason of its exclusion by the lead insurer and, additionally, in one case a further point in relation to additional notices of cancellation, all of which points are now sought to be specifically pleaded in amended Statements of Claim.

4 The original Statements of Claim had indeed referred to non-disclosure but confined this allegation to non-disclosure of the fact that intervention beef was being stored at warehouses owned by United Meat Packers (UMP), including the warehouse at Ballaghaderreen, and not by the Minister. Furthermore, the terms of contract between the Minister and UMP were not disclosed to the Plaintiffs nor was the fact that same deprived the Plaintiffs of any right of subrogation against UMP.

5 The amended Statement of Claim sought to enlarge this category of alleged non-disclosure of material facts to include allegations relating to the knowledge of the Minister in relation to irregularities and abuses at the UMP plant in connection with the operation of the Aid to Private Storage Scheme (APS) and Export Refund Scheme (ERS) and in relation to the intervention arrangements, that specifically between September and December 1988 irregularities in the foregoing categories took place whereby ineligible pieces of meat under the APS were included in boxed meat and there was a failure to achieve individual wrapping required under the ERS, that as early as 1989 the Minister was aware that a permanent presence system in Ballaghaderreen was not in operation and there was no full time or adequate control, that an associated plant in Ballyhaunis was suspended from intervention de-boning for two weeks from 5th September, 1989, that UMP was the subject of a £1.4 million penalty in May of 1991 due to irregularities in the operation of the APS and the ERS, that the Minister's Department in 1991 considered suspending the Ballaghaderreen plant because of irregularities under the Intervention Scheme and that officials in the Minister's Department had concluded that beef was being wrongfully and improperly removed from the plant at Ballaghaderreen or had been stolen as a result of which these officials had concluded that the de-boning operating at Ballaghaderreen should be suspended.

6 In addition to the foregoing amendments which deal with alleged non-disclosure in relation to

7 (a) the APS and ERS,

8 (b) the Intervention Scheme, and

9 (c) the alleged lack of a permanent presence,

10 the Plaintiff's also sought an amendment asserting that if an already pleaded cancellation did not have the effect of cancelling the contract as and from the 31st October, 1991 (or preventing automatic renewal) then the Minister had failed in his duty to disclose a fact material to the subsequent contract, namely, that the new lead insurer Alte Leipziger had excluded fire cover from its insurance risk.

11 A third category of amendment pleads that in fact any contract after the 1st November, 1991 or alternatively the 1st January, 1992 did not include cover for storage risks in respect of fire.

12 Additionally, in the case of one set of Plaintiffs, namely, Eagle Star France and Others (1992: No. 1336P) an additional notice cancelling all contracts of Insurance is sought now to be included in a Statement of Claim which already includes a plea in relation to a similar notice dated a month later.

13 The Minister for Agriculture and Food submits that these amendments should not be allowed. He says that they are not relevant. Affidavits sworn on his behalf make the point that the meat the subject matter of the APS was dealt with under different regulations, was totally separate from intervention beef and always remains the property of the contractor and never becomes the property of the Minister. He says that the kind of alleged regulatory default is not relevant to fire risk because these defaults had nothing to do with anything that might give rise to an increased risk of fire, insofar as the allegations relate to theft he claimed that the relevant policies do not cover theft, he denies that there were ever systematic abuses at Ballaghaderreen and rejects that the Minister knowingly dealt with " unscrupulous agents". Any irregularities were primarily of a procedural or technical nature and were not in any case relevant to fire risk. In relation to the allegation that the permanent presence system was not complied with, he makes the point that this was a discretionary...