Quinn Insurance Ltd v PricewaterhouseCoopers

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'Donnell J.
• Judgment Date: 12 December 2017
• Neutral Citation: [2017] IESC 73
• Docket Number: [S.C. No. 79 of 2017],79/2017
• Date: 12 December 2017

BETWEEN/

Price Waterhouse Cooper (A Firm)

Appellant

AND

Quinn Insurance Limited (Under Administration)

Respondent

[2017] IESC 73

O'Donnell Donal J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley Iseult J.

79/2017

SUPREME COURT

Practice and procedure – Claim – Particularisation of claim – Further and better particulars – Allegation of underestimation of technical provisions as to future liabilities

Facts: The appellant had been appointed as auditors to the respondent company, now in administration. The administrators considered that the technical provisions (effectively a calculation of the respondent’s future liabilities) had been underestimated by the appellant. A claim was brought in the High Court, and the respondent was ordered to provide further and better particulars. The Court of Appeal had reversed that order, and the matter now came before the Supreme Court as an application for leave to appeal.

Held by O’Donnell J that the application would be granted. The Court considered the submissions of the parties and the constitutional provisions applicable, and was satisfied the issue was a matter of sufficient public importance as to warrant a full hearing to clarify the point.

Judgment of O'Donnell J. delivered the 12th of December 2017.

1 The defendants in these proceedings (‘PWC’) seek leave to appeal against one aspect of the decision of the Court of Appeal delivered on the 21st of March 2017, in which that court reversed the decision of the High Court (Costello J) in which she directed that the plaintiffs (‘QIL’) provide full and better particulars which were repeated in identical form in respect of the underwriting years 2005, 2006, 2007, and 2008. The relevant particulars are those set out at paragraph 34 of the judgment of the Court of Appeal as follows:

‘In respect of the alleged understatement of each accident year within each class within each geographic region at 31 December 2005, please specify the reasons and the financial effect of each reason for the alleged understatement identified by the plaintiff in its re-estimation of the plaintiff's technical provisions.’

This was replied to as follows:

‘The plaintiff's case has been adequately pleaded. This is an inappropriate interrogation as to matters properly for evidence, including expert evidence, at the trial of the action.’

PWC now seek to paraphrase that request in the following terms:

‘What do you, QIL, say are the errors in your own estimates of the technical provisions, attested to by your own actuary and approved by your own board?’

If this is an accurate paraphrase, then the reference to QIL's own estimate, actuary and board can be removed and the particulars requested can be reduced to ‘what do you, QIL, say are the errors in your … estimates of the technical provisions?’ In the course of argument the plaintiffs took issue with the accuracy of this paraphrase and that will in due course be an issue for the hearing, but however phrased, it is clear that the issue raises in a relatively clear and concise way, and in substantial litigation where it can be said that pursuit of such issues may be justified, a net issue, as to the entitlement to particularisation of a claim.

Background

2 The facts of this case have already been set out in detail in the judgment of the High Court and the Court of Appeal and it is not necessary to repeat them here for the purposes of this application. It is sufficient to say that the plaintiff company, QIL, was a very substantial insurance company in the household and motor insurance market. In 2010 the High Court appointed administrators to the business. By the time of the Court of Appeal judgment, there was a deficit of €1.6 billion. The business of QIL has been sold by the administrators (so that the remaining asset of the company is the entitlement to bring these proceedings).

3 The defendants, PWC, were the auditors of QIL during the relevant years. The technical provisions referred to in the request for particulars are in substance the estimate made by an insurance company as to its future liabilities. This is required to be produced with the assistance of actuarial advice. In this case QIL retained an international firm of actuaries Milliman's to perform this function. When the company went into administration the administrators retained the services of Mazars to carry out a review of the technical provisions. Mazars concluded that on an overall basis the technical provisions had been understated in each of the relevant years, with it is now alleged, a consequence that QIL engaged in certain transactions with associated businesses which it would not have done, and failed to remedy its financial position when that was possible. In summary, it is said that QIL suffered up to €800 million of damage. It is agreed that the proceedings are complex, and will be time consuming, and could run for more than a year. It is suggested that discovery will run to tens of millions of documents.

4 The nub of the difference between the High Court and the Court of Appeal can be discerned from the following passages from the judgment. At paragraph 43 of the High Court judgment, Costello J said:

‘It can fairly be said that the pleadings set out the case to be advanced against the defendant in relation to its alleged wrongdoing. However it is not clear from either the pleadings or the particulars furnished to date precisely what the plaintiff says was wrong with the Technical Provisions as calculated by the plaintiff and Milliman in the Material Period. It is common case that the plaintiff will first have to establish that these estimates were materially underestimated. In order for the defendant fairly to meet this case, I am of the opinion that it needs particulars of why the plaintiff alleges the Technical Provisions were in fact materially underestimated.’

This conclusion was the only aspect of the High Court judgment reversed by the Court of Appeal. At paragraph 38 of his judgment, and having quoted the passage just cited, Hogan J in the Court of Appeal held:

‘In my judgment, however, viewing the matter both from the standpoint both of practice and existing authority it would be hard to see how requests of this kind could be accommodated within the ordinary parameters of a notice for particulars. The pleader in a standard personal injuries action is not required, for example, to explain why the driver of the motor vehicle which caused the crash was driving too fast or why he failed to keep a proper look-out immediately prior to the accident. The gist of such a claim, after all, is that the defendant was in fact negligent by driving too quickly and by failing to keep a proper look-out. While it is true that, as I have already noted, Baker J. observed in Playboy Enterprises that...