PMPA Insurance Company v Keenan and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Henchy J.,FINLAY C.J.
• Judgment Date: 05 November 1986
• Neutral Citation: 1983 WJSC-SC 3396,1986 WJSC-SC 1564
• Docket Number: [1981 No. 90 Sp.]
• Date: 05 November 1986

1983 WJSC-SC 3396

THE SUPREME COURT

Henchy J.

Griffin J.

McCarthy J.

No. 90 Sp./1981

No. 34/1983

P.M.P.A. INSURANCE CO. LTD. v. KEENAN

PMPA INSURANCE CO. LTD.

v.

KATHLEEN KEENAN & ORS.

Subject Headings:

CONTRACT: construction

EMPLOYER: contract

TRADE UNION: contract

Subject Headings:

CONTRACT: construction

TRADE UNION: contract

1 Judgment of Henchy J.delivered the 27 July 1983(NEM DISS)

2 The defendants as female employees of the PMPA have claimed that for the years 1976 and 1977 they were underpaid the difference between their actual remuneration and what male employees doing like work were paid. Their claim was put forward under the Anti-Discrimination (Pay) Act, 1974. It was upheld by a recommendation of an equal pay officer. On appeal, his recommendation was upheld by the Labour Court. On further appeal on a point of law to the High Court, the recommendation was again affirmed by Carroll J. Now once again the PMPA seek to set aside the recommendation by appealing to this Court.

3 The only point of law argued, either in the High Court or in this Court, was whether the Labour Court erred in law in upholding thedefendants' claim "despite the acceptance by the defendants of a sum in settlement thereof".

4 As McCarthy J. pointed out in the course of the argument, it is questionable whether this propounded point is a point of law. It might be said to be so if the Labour Court had found as a fact that the defendants had accepted a sum of money in settlement of their claim. But the Labour Court made no such finding. Indeed the central point at issue is whether in a settlement in 1978 of a salary claim by PMPA staff there were included provisions which disposed of this claim for equal pay for 1976 and 1977.

5 We do not know the range of the salary claim made on behalf of the employees in 1978, so we cannot say if the present claim came within the scope of the discussions leading to the settlement of that claim. As appears from two letters written in June 1978, one by the Federated Union of Employers acting on behalf of the PMPA and one by the trade union acting on behalf of the employees, the salary claim by the employees was then disposed of by a negotiated settlement. Those letters showed that there was to be a new salary structure with a method of adjusted grading so that female employees would henceforth be remunerated in compliance withthe Anti-Discrimination (Pay) Act, 1978.

6 In the letter written on behalf of the PMPA dealing with the accepted proposals for settlement of the claim, there is to be found this passage (which is also to be found in the answering letter written on behalf of the employees):

7 "The proposals are made on the understanding that they are in full and final settlement of all claims, and that no claims of a cost increasing nature will be made for the duration of the 1978 National Wage Agreement".

8 Counsel for the PMPA contends that "all claims" in that sentence should be construed as including the present claim. I think not. The words "all claims" should be held to include no more than salary claims made in the negotiations leading to that settlement, and there is no evidence that the present claim came up in those negotiations.

9 Any compromise of the female employees present claim for less than the entitlement under the 1974 Act would of course be unlawful. Counsel for the PMPA concedes that, but he urges the Court to conclude that the aggregate of extra financial benefits accruing to an employee under the 1978 settlement would exceed, or at leastbe not less than, what such employee could recover in respect of pay due for 1976 and 1977 under the 1974 Act. I see no basis for making that conclusion. It involves a matter of fact which has not beenestablished.

10 The instant proceedings could be decided in favour of the PMPA only if it could be held that the Labour Court's decision was founded on an error of law. I see no point of law on which such a ruling could bemade.

11 I would therefore dismiss this appeal.

1986 WJSC-SC 1564

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

27/86

In re PMPA INSURANCE CO

IN THE MATTER OF THE PMPA INSURANCE COMPANY LIMITED

AND IN THE MATTER OF THE INSURANCE(No. 2) ACT 1983

(NEM.DISS.)

Citations:

INDUSTRIAL & PROVIDENT SOCIETIES (AMDT) ACT 1978 S16

INSURANCE (NO 2) ACT 1983 S1

INSURANCE (NO 2) ACT 1983 S2(2)

INSURANCE (NO 2) ACT 1983 S2(3)

INSURANCE (NO 2) ACT 1983 S3

INSURANCE (NO 2) ACT 1983 S3(1)(a)

INSURANCE (NO 2) ACT 1983 S3(1)(b)

INSURANCE (NO 2) ACT 1983 S3(1)(c)

INSURANCE (NO 2) ACT 1983 S3(4)

INSURANCE (NO 2) ACT 1983 S3(4)(a)

INSURANCE (NO 2) ACT 1983 S4

INSURANCE (NO 2) ACT 1983 S4(2)

Synopsis:

INSURANCE

Administrator

Insolvent insurer - Appointment of special administrator - Provident society being body connected with insurance company - Administrator also appointed as manager of provident society - Statutory provision for expenses incurred by administrator of company - No provision for expenses incurred by administrator as manager of society - Implied indemnity of manager of society - ~See~ Winding up, assets - Insurance (No.2) Act, 1983, ss.1–4 - (27/86 - Supreme Court - 5/11/86) - [1988] ILRM 109

|In re P.M.P.A. Insurance Company|

WINDING UP

Assets

Ascertainment - Fund - Conflicting claims - Retention of fund by administrator of insolvent insurance company - Fund claimed by liquidator of provident society - The provident society was a body connected with the insurance company within the meaning of s.4 of the Act of 1983 - An administrator of the insurance company was appointed pursuant to s.2 of the Act - Subsequently, on 25/10/83, the administrator of the company was appointed manager of the provident society pursuant to s.4(2) of the Act - On 5/12/83 a provisional liquidator of the provident society was appointed by the court - On 19/12/83 the High Court ordered the provident society to be wound up and an official liquidator was appointed - The administrator of the insurance company acknowledged that, after the appointment of the provisional liquidator of the society, the assets of the society which were under the control of the administrator were held by him as trustee for the society, except for a fund which the administrator retained to meet his lawful claims and the lawful claims of the insurance company - The administrator's claims on the retained fund were successful in the High Court except for claims based on the legal fees incurred by the administrator in discharging his functions as manager of the society, and those based on the remuneration of the administrator and his staff for work done pursuant to his powers as such manager - Held that the administrator's said claims should be allowed since they were not excluded by the terms of his appointment as manager of the society and since they did not fall within the terms of s.3(4)(a) of the Act which provided for his expenses as administrator of the insurance company - The administrator also failed in the High Court to establish his claims based on the wages paid to the employees of the insurance company who had performed work for the provident society, and based on the provision of certain overheads and services by the insurance company for the provident society - Held that the claims based on such wages, overheads and services were matters for proof by the insurance company in the winding up of the provident society - Held that a debit mistakenly entered by the company's bank in the company's account instead of in the society's account with the bank was a matter for adjustment by the bank and was not a valid item in the administrator's claim - Administrator's appeal from the decision of the High Court (24/10/85) allowed in part - Insurance (No.2) Act, 1983, ss.1–4 - (27/86 - Supreme Court - 5/11/86) - [1988] ILRM 109

|In re P.M.P.A. Insurance Company|

1 JUDGMENT delivered on the 5th day of November 1986 by FINLAY C.J.

2 This is an appeal brought by the Administrator of the PMPA Insurance Company Limited ("the Company") against an Order made by the High Court on an application brought by him concerning certain monies the property of the Private Motorist Provident Society ("the Society") which were retained by him, the Administrator. The Respondent to the appeal was the Society and the Registrar of Friendly Societies was also served with notice of the appeal.

3 The Administrator was appointed as a Provisional Administrator pursuant to Section 3 of the Act of 1983 o the 20th October 1983.

4 On the 25th October 1983 he was appointed by way of Interlocutory Order pursuant to Section 4 of the Act of 1983 as receiver and manager of the Society. On the 14th November 1983 he was appointed as a Permanent Administrator of the Company and the Interlocutory Order appointing him as receiver and manager of the Society was confirmed.

5 On the 5th December 1983 a Provisional Liquidator of the Society was appointed by the Court and on the 19th December 1983 an Order was made for the winding up of the Society and the Provisional Liquidator was appointed its official Liquidator.

6 It is agreed that the Administrator of the Company ceased to be the Receiver and Manager of the Society as and from the 5th December 1983, but between the 25th October and the 5th December 1983 the Administrator carried on the business of the Society, entered into possession of its assets in accordance with the Order appointing him as Receiver and Manager and directed the collection of debts due to it and the general administration of its affairs.

7 Upon ceasing to be Receiver and Manager, the Administrator handed over to the Liquidator of the Society all the property and assets of the Society which had come to his hands except certain monies on deposit at Citibank in Dublin. He retained those funds as he stated in a letter of the 19th December 1983 to the Liquidator of...