Defender Ltd and HSBC Institutional Trust Services (Ireland) Ltd and Reliance Management (BVI) Ltd, Reliance International Research LLC, Fiman Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 22 January 2019 |
| Neutral Citation | [2019] IEHC 32 |
| Date | 22 January 2019 |
| Court | High Court |
| Docket Number | [2013 No. 12439 P] [2013 No. 177 COM] |
[2019] IEHC 32
THE HIGH COURT
COMMERCIAL
Twomey
[2013 No. 12439 P]
[2013 No. 177 COM]
AND
This is a case primarily involving a claim for $141 million by the plaintiff, Defender Limited, an investment fund, (“Defender”) against the defendant company, HSBC Institutional Trust Services (Ireland) Limited (“HSBC”) which was due to run for five months. However, after hearing the opening of the case and before going into evidence, I ordered that there be a hearing on a preliminary legal issue, namely s. 17(2) of the Civil Liability Act, 1961. I gave judgment on that preliminary issue in this case on the 4 th of December, 2018 ( Defender v. HSBC [2018] IEHC 706), which judgment had the effect of bringing to an end the claim for damages. However, that decision is now under appeal to the Court of Appeal or the Supreme Court.
After the judgment of 4 th December, 2018 was delivered, Defender brought a motion seeking my recusal from hearing this case, if and when it returns to me, after the appeal has been heard by the Court of Appeal and/or the Supreme Court. On 17 th December, 2018, this Court adjourned generally with liberty to apply, the plaintiff's motion for my recusal from hearing any further proceedings in this case, if and when the case comes back before the High Court. On that date, counsel for Defender indicated that he wished to appeal my decision to adjourn the recusal motion and asked for my decision to adjourn the recusal motion to be set out in writing for that purpose. Before the Court had done so, on the 19 th December, counsel for Defender made further submissions regarding this issue and he asked me to reconsider my decision to adjourn the motion for recusal.
After considering these further submissions, on the 21 st December, 2018, I confirmed my decision of 17 th December to adjourn the motion for recusal generally with liberty to apply. In the circumstances, and in order to facilitate the appeal of that decision to adjourn, should counsel for Defender wish to pursue such an appeal, I am giving my decision to adjourn the motion for my recusal in writing along with the reasons for that decision and the background to that decision.
However, as is noted hereunder at para. 53 et seq, on the 16 th January, 2019 counsel for Defender asked me to reconsider once again my decision of 17 th December, which had been confirmed on the 21 st December. Having considered what counsel stated, and for the reasons set out hereunder, this Court re-confirms its decision of 17 th December. Accordingly, although this written judgment is finally delivered on the 22 nd of January, 2019, as is noted hereunder, judgment was first given on the 17 th of December, 2018, then confirmed on the 21 st of December, 2018 and now re-confirmed on the 22 nd of January, 2019.
This written judgment also deals with matters other than the recusal motion, namely a number of other consequential orders arising from this Court's substantive judgment on 4 th December in Defender v. HSBC [2018] IEHC 706 which effectively brought the plaintiff's claim for damages to an end.
I will deal first with the costs issues arising from that judgment.
In relation to the costs of the preliminary hearing, this Court will make an order for HSBC's costs to be paid by Defender, to be taxed in default of agreement, with a stay on those costs pending the outcome of the appeal. There is little dispute between the parties on this issue, since costs should follow the event and HSBC won the argument on s. 17(2) of the Civil Liability Act, 1961.
However, HSBC has also sought its costs for the substantive hearing on the grounds that, in light of the terms of the judgment, all of Defender's claims for damages against HSBC have, in effect, been dismissed. There is some merit in this argument, since the substance of the claim by Defender against HSBC is a claim for damages of $141 million. However, it is nonetheless the case that the relief sought by Defender in these proceedings was not limited to damages. Defender also sought declaratory relief and has a claim for restitution against HSBC and neither of these claims are dismissed as a result of the judgment of 4 th December, 2018. In addition, the constitutional challenge to the Civil Liability Act, 1961, which was flagged to the Court by Defender even before the commencement of the preliminary hearing, still exists, and if it is to be brought (which Defender says it will be, if it loses its appeal of the 4 th December judgment), that constitutional claim will be brought within these proceedings, since an Order 60 of the RSC has already been served on the Attorney General.
For these reasons, and, in particular, since this Court's judgment of 4 th December did not dispose of the entirety of the proceedings, this Court concludes that it is premature for this Court to make an order at this stage in relation to the costs for the entirety of the proceedings.
The next issue to be dealt with is the recusal motion and in dealing with that issue, this Court will also deal with the final orders to be issued arising from the judgment of 4 th December, 2018 in Defender v. HSBC [2018] IEHC 706.
I was informed by counsel for Defender on Tuesday 11 th December that it wished to bring a motion for my recusal from any further hearing of its proceedings against HSBC. I was due to hear that motion on Wednesday 19 th December. This application, as I understand it, is based on the terms of my judgment in Defender v. HSBC [2018] IEHC 706 which Defender lost, and is not based on my having any financial interest in the outcome of the proceedings or otherwise having a personal or other conflict of interest.
Having considered the matter, and in particular because my judgment of 4 th December is, in any event, subject to an appeal which could take some time, I decided on Thursday 13 th December that I was not going to hear the motion but was instead going to adjourn the matter generally with liberty to apply.
The following day, on Friday 14 th December, I informed the judge in charge of the Commercial List of my decision and he decided to assign another matter to me for the week beginning Monday 17 th December. On Friday 14 th December, I put the Defender v. HSBC matter in for mention on Monday 17 th December so that I could advise the parties of my decision at the earliest opportunity to ensure that the parties would not waste any time preparing for a recusal hearing which was not now going ahead on Wednesday 19 th December.
On Monday 17 th December, I duly advised the parties of my decision to adjourn the recusal hearing generally with liberty to apply. Counsel for Defender, on being advised by me of my decision not to have the recusal hearing on Wednesday 19 th December, sought to have my decision recorded in writing in order to facilitate the appeal by Defender of this decision. I put the matter in for mention on Friday 19 th December to do so, and to consider the final orders to be issued arising from the judgment of 4 th December in Defender v. HSBC [2018] IEHC 706.
On Friday 19 th December, counsel for Defender asked me to revisit my decision of the 17 th December and hear the recusal application rather than adjourning it. He indicated that he was concerned that after the case comes back before me, say in two years time (assuming of course that I am the judge it comes back before), that if at that stage I refuse to recuse myself, this would lead to an appeal of that decision by Defender, which could lead to further delay in this matter being heard. On this occasion, he also sought to clarify that while the recusal application to be heard might take longer than the one hour he had indicated on 11 th December, he felt that it would take two hours, after discussing the matter with counsel for HSBC.
Although the Court had made its decision regarding the recusal motion on the 17 th December, and so was functus officio, this Court considered the points made by counsel for Defender and did not make final orders regarding the adjournment, and instead put the matter in for mention on the 21 st December. On the 21 st December, 2018, this Court confirmed its decision of 17 th December regarding the adjournment of the recusal motion.
The determinative reason for my decision regarding the adjournment of the recusal hearing is the most appropriate use of court resources and, in particular, my reluctance to use up scarce judicial resources deciding whether I should be the judge which should hear a case which might or might not come back to me in a number of years time. However, it is important to give the background and the detailed reasons for this decision.
This Court commenced hearing the substantive proceedings between Defender and HSBC on Tuesday 30 th October, 2018. The case was expected to last for more than 80 days of hearings i.e. five months of court time, but in light of the legal submissions made during the four-day opening of the case, this Court concluded that a legal issue, namely s. 17(2) of the Civil Liability Act, 1961, had the potential to decide the case, without five months of evidence. Accordingly, on the morning before the first witness was called in the case, this Court advised the parties that the Civil Liability issue should be heard as a preliminary matter first. However, the parties decided to proceed with the...
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Defender Ltd v HSBC Institutional Trust Services (Ireland) DAC
...for the reasons set out in two written judgments of the Court, delivered on 4 December 2018 ( [2018] IHEC 706) and 22 January 2019 ( [2019] IEHC 32). Jurisdiction 2 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the cr......