Superwood Holdings Plc & ors -v- Sun Alliance & ors, [2002] IESC 22 (2002)

Docket Number:140/01
Party Name:Superwood Holdings Plc & ors, Sun Alliance & ors
Judge:Denham J. / Keane C.J.

JUDGMENT BY: Denham J.THE SUPREME COURT Denham J.Murphy J. Record No. 140/01Murray J.BETWEEN/SUPERWOOD HOLDINGS plcSUPERWOOD LIMITED, SUPERWOOD EXPORTS LIMITED,SUPERCHIP LIMITED, SUPERWOOD INTERNATIONAL LIMITED,and SUPERWOOD (U.K.) LIMITED PLAINTIFFS/APPELLANTSandSUN ALLIANCE AND LONDON INSURANCE plc Trading as SUN ALLIANCE INSURANCE GROUP,PRUDENTIAL ASSURANCE GROUP COMPANY LIMITEDCHURCH AND GENERAL INSURANCE COMPANY LIMITEDand RAYMOND P. McGOVERN as LLOYDS UNDERWRITERS SOLE GENERAL REPRESENTATIVEREPUBLIC OF IRELAND DEFENDANTS/RESPONDENTSJudgment of the Court delivered on the 12th day of April, 2002 by Denham J.This is an application on behalf of the first, second and third named defendants/respondents (hereinafter referred to as the defendants), for an order directing the plaintiffs/appellants, (hereinafter referred to as the plaintiffs), to furnish security for costs pursuant to s. 390 of the Companies Act, 1963 in respect of their appeal to the Supreme Court. The application is grounded on an affidavit sworn on the 20th December, 2001 by Mr. Ivan Durcan, solicitor, on behalf of the defendants. The case arose as a result of a fire on the plaintiffs' premises in October, 1987 after which the plaintiffs sought compensation under policies of insurance issued by the defendants and the other above named defendants (hereinafter together referred to as "the defendants"). The proceedings were protracted and expensive. They commenced in 1989 and were at hearing for 116 days in the first instance. In a judgment comprising some 400 pages O'Hanlon J. dismissed the claim made by the plaintiffs. That judgment was appealed to this Court. That appeal was heard over a period of 16 days. Judgment was delivered on the 27th of June, 1995, reversing the decision of the High Court and directing a retrial on the issue of damages. That issue was at hearing for 281 days and it generated approximately 41,000 pages of transcript. The judgment consists of 872 pages together with a book of indexed exhibits comprising 1,525 documents and other related matters.By his judgment and the order made thereon dated the 7th day of April, 2001, Smyth J. awarded to Superwood Limited and Superwood Exports Limited the sum of £314,940.20 in damages (inclusive of interest to the 19th November, 2000) but ordered, pursuant to s. 17 (2) of the Civil Liability Act, 1961, that the sum so awarded be reduced by the amount of the monies received by the plaintiffs from the fourthly named defendants by virtue of a compromise reached and concluded between them. It appears from the affidavit of Mr. Ivan Durcan that this settlement involved the payment by the fourthly named defendant to the plaintiffs in the month of May, 1998 a sum of £1,235,753.80 sterling (being the equivalent of IR£1,422,031.30) in addition to the release to the plaintiffs of the monies lodged in court by those defendants and amounting to the sum of IR£1,600,000, that is to say, a total sum of IR£3,022,031.30.The first, second and third named defendants had lodged in court to meet the plaintiffs' claim for damages the sum of £3,152,761 and the order of Smyth J. directed the repayment of that sum to the defendants. The plaintiffs have appealed against the order of Smyth J. by notice dated the 14th day of May, 2001. That notice sets out 336 separate grounds of appeal.In his affidavit grounding the application for security for costs Mr. Ivan Durcan pointed out that the claim for damages as originally formulated by the plaintiffs amounted to £2 million. By June, 1989 it had increased to £5 million. In July, 1990 the sum of £8 million was claimed and after the order and judgment of the Supreme Court dated the 27th day of June, 1995, the claim escalated to £92 million.It would appear from the affidavits sworn by Mr. Ivan Durcan on behalf of the defendants and Mr. A. Derek E. Burke, solicitor on behalf of the plaintiffs, that the parties are agreed that the maximum sum available at the present time to the plaintiffs is an amount not exceeding £145,655.21. This does not take into account the defendants' High Court costs. Furthermore, it has been suggested that a firm of solicitors may have a claim on that amount for a sum of £100,000. In any event it is not suggested that the monies now available to the plaintiffs would be preserved to meet any part of the costs of the defendants in the event of the appeal being dismissed.There is a serious difference of opinion between the two solicitors as to the likely costs of the appeal. Mr. Burke has expressed the opinion that the appeal could be disposed of in two weeks. By reference to the taxation of the costs in the earlier appeal in these proceedings he suggests that an appropriate instruction fee for the solicitors would be £70,000 and that it would be appropriate to brief one senior only and one junior counsel and that the brief feepayable to the senior would be £75,000 and junior counsel £50,000. This would give a total of £195,000 on the basis of a one day hearing. Mr. Burke does not make any estimate in respect of the refresher fees or other costs involved in the remaining 13 days of the anticipated hearing.Messrs. Cyril O'Neill & Co., Legal Cost Accountants, engaged by the defendants, originally estimated that the appeal would take 40 days but were persuaded by counsel that it would be disposed of in 20...

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