Guiney v Account of the Courts of Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 22 September 2014 |
| Neutral Citation | [2014] IEHC 426 |
| Docket Number | [2013 No. 555 J.R.] |
| Court | High Court |
| Date | 22 September 2014 |
[2014] IEHC 426
THE HIGH COURT
[2013 No. 555 J.R.]
Application for judicial review - Accident in the workplace - Husband killed on construction site - Construction company no longer trading - Construction company”s insurer in liquidation - Insurance Act 1964 - Insurance (Amendment) Act 2011 - Statutory interpretation - Prospective in operation - Whether Ms Guiney is entitled to compensation under the Insurance Compensation Fund
Facts The applicant”s husband was killed on a construction site in November 2000. Judgment was entered by Irvine J in July 2012 in favour of Ms Guiney against the construction company, MJ Manning Construction Co. Ltd, for the sum of €794,795 together with costs. Unfortunately, the construction company ceased trading and was therefore not in a position to satisfy the judgment. To compound matters, the construction company”s insurer, the Independent Insurance Company Ltd (IICL), a UK company, was in liquidation.
Consequently Ms Guiney sought to make a claim on the Insurance Compensation Fund. The applicant”s solicitors made an application to the Accountant of the Court of Justice for compensation under the Fund. This was refused. The applicant therefore sought a declaration to the effect that she was entitled to have the Accountant apply to the President of the High Court on her behalf under s. 3B of the 1964 Act for the approval of a payment under s. 3 of the 1964 Act.
Held (1) The 1964 Act operated so as to provide for a compensation fund in respect of the policy-holders and other creditors of insurers who became insolvent. The Act was, however, confined in its operation to Irish-based insurers who were wound-up by this Court. (2) This statutory scheme was rendered more complex by a series of statutory amendments and statutory instruments. Article 3 of the 1991 Regulations nevertheless drew a clear distinction between insurers who were granted authorisations by the Minister (and, subsequently, by the Central Bank) and those who were authorised under the law of another Member State. Prior to the enactment of the 2011 Act, only the former category of insurance undertakings qualified as “insurers” for the purposes of s. 3 of the 1964 Act. (3) The 2011 Act liberalised the law by extending the scope of the Fund to those foreign insurers who wrote business in Ireland. But this benefit also carried certain obligations, including the obligation to pay rateably into the Fund in the same fashion as Irish-based insurers had being doing since it was first established. (4) The whole tenor of the 2011 Act was that these changes were to apply with prospective effect only. There is a strong presumption against retrospective legislation which affects vested rights and, having regard to the provisions of Article 15.5.1 of the Constitution; the Oireachtas could not have imposed an obligation on those foreign based insurers to make such a contribution to the Fund with retrospective effect. (5) This conclusion is underscored by the provisions of s. 9 of the 2011 Act which provides that the pre-existing law continues to apply to those insolvent insurers the proceedings for the winding-up of which had been commenced prior to the enactment of the 2011 Act. While it is true that s. 9 expressly provides that this saving clause does not apply to foreign-based insurers, this is because that earlier law dealing with the Fund never applied to those particular insurers. (6) So far as pre-existing law is concerned, the provisions of s. 3 of the 1964 Act applied only to those insurers who held authorisations from the Minister (or, as the case may be, the Central Bank) and did not apply to those foreign based insurers who operated in this State by virtue of an authorisation granted by the authorities of another Member State. (7) These conditions were not satisfied in the case of IICL. It had never been authorised by the Minister or the Central Bank and the winding-up proceedings in respect of that undertaking had been commenced in the High Court of England and Wales and not in this Court. (8) Accordingly, IICL was not an “insolvent insurer” in the special sense in which that term has been defined for the purposes of the 1964 Act.
-The judge was therefore compelled to find against Ms. Guiney so far as the issue of statutory interpretation was concerned and invited the parties to consider the arguments based on EU law as quickly as possible.
This application for judicial review arises from a fatal accident in the workplace in November 2000, the tragic nature of which remains undimmed some fourteen years later. The applicant”s husband, John Guiney, was killed on a construction site, leaving her to fend for herself and two very young children. It is to her enormous credit that she has managed to do this in difficult financial circumstances following this terrible personal tragedy. Following protracted fatal injuries litigation judgment was ultimately entered by Irvine J. on 17th July, 2012, in favour of Ms. Guiney against the construction company, MJ Manning Construction Co. Ltd., for the sum of €794,795, together with costs.
Ms. Guiney might at that point have considered that her legal struggles for compensation were over following the making of this award by this Court. The construction company is, however, no longer trading and it is not, unfortunately, in a position to satisfy the judgment. To compound all the difficulties which have beset the applicant, Manning Construction”s insurer, the Independent Insurance Company Ltd. (‘IICL’), was a UK company which is itself in liquidation. On 17th June 2001 the directors of IICL petitioned the High Court of England and Wales for the winding-up of the company and a Dan Schwarzmann and Mark Batten of PriceWaterhouseCoopers were appointed as joint provisional liquidators of IICL.
From information supplied by Messrs. Schwarzmann and Batten it seems unlikely that Ms. Guiney will receive anything more than perhaps 10-15% of the ultimate award on a distribution in the liquidation. Although it seems that the insurer was authorised in the UK, Ms. Guiney is not entitled to make a claim in respect of the UK Financial Services Compensation Scheme as the death occurred in Ireland. As it happens IICL was authorised to trade in Ireland since July, 1995 by virtue of an authorisation given (it would seem) by the relevant UK authorities, notification of which was given to the Central Bank pursuant to Article 33 of the European Communities (Non-Life Insurance) Regulations 1994 ( S.I. No. 359 of 1994)(‘the 1994 Regulations’).
The issue which now arises is whether Ms. Guiney is entitled to make a claim on the Insurance Compensation Fund (‘the Fund’). The Fund was originally established by the Insurance Act 1964 (‘the 1964 Act’) to provide for a system of compensation for cases of this broadly similar kind. While the question of whether Ms. Guiney comes within the terms of the 1964 Act might seem straightforward, nevertheless given the multiplicity of subsequent statutory amendments, the case raises acutely difficult questions of statutory interpretation. For this purpose it is necessary to set out the relevant statutory background.
Before proceeding further, however, it is also appropriate to record that, judged from the perspective of abstract justice, fairness and morality, Ms. Guiney”s claim to be paid compensation some fourteen years after this terrible tragedy is an absolutely compelling and overwhelming one. This Court is, however, obliged to deal with the imperfect world of human justice, so that her entitlement is regulated by law, i.e., in this instance, a complex web of inter-locking statutory provisions, amendments, substitutions and statutory instruments.
It should also be recorded as a further preliminary that it has been agreed that I should first deliver judgment on the issue of statutory interpretation only. It is only the event that I were to find against the applicant that questions of European Union law, including the potential impact of the non-discrimination provisions contained in Article 18 TFEU and the Third Non-Life Insurance Directive. It follows, therefore, that any potential consideration of these EU issues must be postponed pending the determination of the statutory interpretation issue.
The Nature of the Fund
The Fund was originally established for the purposes of providing a compensation scheme for the creditors of insolvent insurers. The Fund is administered under general superintendence and ‘control of the President of the High Court acting through the Accountant’: see s. 2(2) of the 1964 Act. The day to day management of the Fund rests with the Accountant of the Court of Justice. The Accountant is a statutory officer attached to the High Court: see s. 16 of the Court Officers Act 1926 and the 8th Schedule, paragraph 2 of the Courts (Supplemental Provisions) Act 1961.
The applicant”s solicitors made an application to the Accountant for compensation under the Fund. By decision dated the 20th May, 2013, the Accountant, having taken the appropriate legal advice, refused to do so. The Accountant actually went further and very fairly supplied the applicant”s solicitors with the legal advice which he had received to the effect that the claim fell outside the scope of the 1964 Act. I have no doubt but that the Accountant acted with perfect propriety in taking the decisions which he did. He is effectively a custodian of the Fund and he has no entitlement to make a payment save in accordance with law.
The applicant has now sought a declaration to the effect that she is entitled to have the Accountant apply to the President of the High Court on her behalf under s. 3B of the...
To continue reading
Request your trial