Irish Airline Pilots Pension Dac v Mercer (Ireland) Ltd Trading as Mercer

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 20 January 2022
• Neutral Citation: [2022] IEHC 22
• Court: High Court
• Docket Number: Record No. 2020/7948P

Between

Irish Airline Pilots Pension Dac

Plaintiff

and

Mercer (Ireland) Limited Trading as Mercer

Defendant

[2022] IEHC 22

Record No. 2020/7948P

THE HIGH COURT

COMMERCIAL

Discovery – Damages – Further and better discovery – Defendant seeking further and better discovery – Whether there was ambiguity in the category of discovery ordered

Facts: The plaintiff, Irish Airline Pilots Pension DAC (the Pilots), sought damages from the defendant, Mercer (Ireland) Ltd (Mercer), arising from Mercer’s alleged failure to promptly sell €40 million worth of shares held in the Pilots’ pension scheme (the Scheme) after the decision was taken to sell those shares on the 14th February, 2020. This failure allegedly resulted in losses to the Pilots, arising from the fall in stock market valuations in and around March 2020 which resulted from the start of the Covid-19 pandemic. Mercer applied to the High Court for further and better discovery in relation to the following category of documents sought by Mercer from the Pilots, which category (Category 2) was agreed between the parties: “All documents created between 1 January 2018 and 24 November 2020 relating to or recording the discussions and consideration internally or with third parties concerning the [Pilots’] decision to realise €40,000,000 of the Scheme’s global equity holdings with Irish Life Investment Managers (“ILIM”) and to hold the proceeds in cash pending reinvestment in committed infrastructure and long lease vehicles, including but not limited to all advices received by the [Pilots] from Mercer or any other party on the investment strategy for the Scheme, including for the avoidance of doubt any consideration of the risk appetite of the Scheme, and all documents setting out communications, deliberations and consideration of those advices internally and with third parties (including the Pensions Authority), and all attendances/minutes/notes of the meeting on 14 February 2020 and all documents setting out communications, deliberations and consideration had concerning the decision to disinvest prior to and after the meeting.” The key issue in dispute was that Mercer alleged that the Pilots had failed to discover certain documents relating to the investment strategy for the Scheme, i.e. documents relating to the long-term investment strategy of that Scheme.

Held by Twomey J that where there is no ambiguity regarding the terms of the discovery order, the relevance and necessity of the documents to the dispute have no application to the question of whether the documents should have been discovered. Twomey J held that it is purely a matter of interpretation of the terms of the court order for discovery, in line with the normal rules of interpretation, to determine whether the documents fall within the category and should have been discovered. Twomey J held that, on this basis, even if the documents are relevant and necessary to the dispute, they are not discoverable, if they fall outside the ‘natural and ordinary meaning’ of the discovery order. In the circumstances, the Court could not see how it could order further and better discovery.

Twomey J denied the application for further and better discovery.

Application refused.

JUDGMENT OF Mr. Justice Twomey delivered on the 20th day of January, 2022

SUMMARY

1 This is a case in which the plaintiff (the “Pilots”) seek damages from the defendant (“Mercer”) arising from Mercer's alleged failure to promptly sell €40 million worth of shares held in the Pilots' pension scheme (the “Scheme”) after the decision was taken to sell those shares on the 14th February, 2020. This failure allegedly resulted in losses to the Pilots, arising from the fall in stock market valuations in and around March 2020 which resulted from the start of the Covid-19 pandemic.

2 This case considers the approach of a court to interpreting a category of discovery agreed between parties to litigation where there is a dispute as to the breadth of the category in issue and in particular whether certain documents should be discovered.

3 It considers the extent, if any, to which the pleadings, and the reasons for the category in the letter seeking discovery, are relevant (as claimed by Mercer), where there is alleged to be no ambiguity in the category of discovery ordered (as claimed by the Pilots).

4 This Court concludes that where there is no ambiguity regarding the terms of the discovery order, the relevance and necessity of the documents to the dispute have no application to the question of whether the documents should have been discovered.

5 Instead, it is purely a matter of interpretation of the terms of the court order for discovery, in line with the normal rules of interpretation, to determine whether the documents fall within the category and should have been discovered. On this basis, even if the documents are relevant and necessary to the dispute, they are not discoverable, if they fall outside the ‘natural and ordinary meaning’ of the discovery order.

BACKGROUND

6 This issue arises in the context of an application for further and better discovery in relation to the following category of documents sought by Mercer from the Pilots, which category (Category 2) was agreed between the parties:

“All documents created between 1 January 2018 and 24 November 2020 relating to or recording the discussions and consideration...