Superwood Holdings Plc v Sun Alliance Plc (No. 3)

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 15 March 2004
• Neutral Citation: [2004] IESC 19
• Court: Supreme Court
• Docket Number: [S.C. No. 140 of 2001]
• Date: 15 March 2004

[2004] IESC 19

THE SUPREME COURT

Keane C.J.

Murray J.

Hardiman J.

141/01

SUPERWOOD HOLDINGS & SUN ALLIANCE

BETWEEN

SUPERWOOD HOLDINGS PLC, SUPERWOOD LIMITED, SUPERWOODEXPORTS LIMITED, SUPERWOOD INTERNATIONAL LIMITED, SUPERCHIP LIMITED ANDSUPERWOOD (U.K.) LIMITED

APPLICANTS/PLAINTIFFS

AND

SUN ALLIANCE AND LONDON INSURANCE PLC trading as SUNALLIANCE INSURANCE GROUP, PRUDENTIAL ASSURANCE COMPANY LIMITED, CHURCHAND GENERAL INSURANCE COMPANY LIMITED AND RAYMOND P. McGOVERN AS LLOYDSUNDERWRITERS SOLE REPRESENTATIVE REPUBLIC OF IRELAND

RESPONDENTS/DEFENDANTS

Citations:

COMPANIES ACT 1963 S390

WUNDER V HOSPITALS TRUST (1940) LTD UNREP SUPREME 24.01.1967

RIORDAN V AN TAOISECH & ORS UNREP SUPREME 29.6.2000 2000/16/6106

Synopsis:

PRACTICE AND PROCEDURE

Security for costs

Insurance claim - Assessment - Notice of appeal - Whether deadline to furnish security for costs should be extended - Whether appropriate to substitute notice of appeal - Whether application constituted abuse of process - Company law - Companies Act, 1963 section 390 (141/2001 - Supreme Court - 16/1/2004)

Superwood v Sun Alliance

Facts: Both parties were engaged in expensive ongoing litigation arising out of a fire which occurred at the plaintiffs' premises and as a result the plaintiffs sought to recover from their insurers (the defendants). The case had already been in the High Court and then on appeal to the Supreme Court where it was remitted to the High Court. The Supreme Court had directed the plaintiffs to furnish security for costs and had remitted the matter to the Master of the High Court who had directed that approximately €€.6 million be furnished as security. The plaintiffs had disputed this amount and had appealed both to the High Court and to the Supreme Court where the appeals were dismissed. The security for costs was ordered to be paid by a certain date (which had since passed), failing the payment of which the proceedings were stayed. In this application the plaintiffs sought an extension of the deadline to provide security for costs. In addition the plaintiffs also sought certain directions regarding the making of submissions and also sought to substitute the present notice of appeal for a much shorter notice. Furthermore the plaintiffs sought to amend the order for security for costs. Counsel for the defendants made a case for the granting of an Isaac Wunder order in regard to the applications being made by the plaintiffs.

Held by the Supreme Court (Keane CJ delivering judgment, Murray J and Hardiman J agreeing) in making the following order. To further extend the deadline for the furnishing of security for costs would be entirely unjust to the respondents. There was no indication that any further extension would enable the plaintiffs to pay the amount required. The court had no jurisdiction to substitute the present notice of appeal with the new proposed notice of appeal, as effectively this would allow the plaintiffs a fresh and different appeal. The matters relating to the order for security for costs had been fully dealt with and could not be dealt with again. Although the court would not grant an Isaac Wunder order, should the stay on proceedings remain in being then it would be open to the defendants to apply for the dismissal the proceedings for want of prosecution.

Reporter: R.F.

1 16th day of January 2004,by Keane C.J.

Keane C.J.

2 I propose to deal in sequence with the various reliefs which have been sought in the notice of motion before the court this afternoon. At the outset, I should say that the proceedings have been stayed, that is the appeal has been stayed, since the 12 ^th April, 2002 when this court, the matter having been fully argued before it, ordered that security for costs of the appeal would have to be provided by the appellants and remitted the matter to the Master of the High Court to determine the amount of the security to be provided. The fact that the proceedings have been stayed ever since then is the background against which the present application has been brought.

3 The first relief sought is an extension of the deadline for providing the £1.6 million, approximately, security. This court having ordered the security for costs be provided and the amount having been assessed by the Master of the High Court, the appellants then appealed to the judge of the High Court from his assessment of the amount and the High Court judge dismissed the appeal against the Taxing Master's assessment. There was then a further appeal to this court and in the judgment of this court that appeal was dismissed. At that stage it was ordered that the security should be provided within three months from that date on the 17 ^th October, 2003.

4 This court determined that the decision of the High Court in relation to the security for costs should be upheld and it is the case that the security for costs has still not been provided. Given that the original determination by this court that there must be security for costs was given almost two years ago, it must have been obvious ever since that time to the appellants that they would require to provide security in a substantial sum, whatever that sum might be, because in the case of an appeal which had been at hearing for a very lengthy time indeed in the High Court and in respect of which a notice of appeal specifying over 300 grounds of appeal had been filed, it must have been perfectly evident that the costs of the appeal would be very significant indeed and if asked to provide security on the usual basis, the amount of that security would be correspondingly significant. For the appellants at this stage to seek yet another period of time within which to provide this security would, in my view, be entirely unjust to the respondents and would be to dilute or erode the orders already made by this court in relation to security for costs in a manner which would be entirelyunacceptable.

5 It has to be pointed out that there is no indication in any event before the court that there is any reality in the suggestion that, if the matter is delayed further, the appellants will be in a position to provide the security suggested and it has to be said that there was aregrettablelack of candour in the way the matter was dealt with before the court this morning as to what precisely the position of the appellants was in relation to the security for costs and part of the submissions proceeded on the basis that they were still entitled to a significant sum in respect of the judgment of the High Court. When the matter was considered in more detail, it transpired that that was simply not the case and that the effect of the order of the High Court was effectively to wipe out any order for damages given in the High Court. In my view it is sufficient to say that the appellants have shown no grounds whatever, even supposing this court had jurisdiction to do it, and that is far from clear, on which this court would be entitled, at this stage, to prolong the whole process of providing security, which has gone on far too long as it is and that this court should extend the time yetagain.

6 The second relief sought is for a direction that the court should direct that the appeal should be heard in two stages, on grounds which are the subject of lengthy written submissions put in the form of an affidavit by the appellants"solicitor, but which are effectively written submissions and are followed by further submissions. These are matters in respect of which, if the appeal proceeded, it would be entirely a matter for counsel conducting the appeal to suggest what might be the most convenient way of dealing with it. It would then, of course, be for the court to determine,having heard counsel for the respondents, whether that was indeed a convenient and expeditious way of dealing with the appeal. It is certainly not an order which, in my view, this court could possibly make at this stage in relation to an appeal the further hearing of which has been stayed.

7 The third matter relates to an order for costs. The applicant seeks an order for the costs of the hearing before the High Court, and that, of course, is a matter which cannot possibly be dealt with at this stage in the context of an appeal the further proceedings in which are stayed and that has not in fact been referred to by Dr. Forde in his submissions this morning to any extent.

8 The fourth relief sought is an order that the appellants be permitted to substitute for the present notice of appeal a much shorter notice with which, as it is put, focuses on certain central issues in the appeal (and I am quoting again from the notice of motion) and the form of the proposed notice of appeal is set out in an exhibit to the affidavit of the solicitor for the appellants. As was pointed out more than once in the course of the argument this morning to Dr. Forde, it is of course perfectly open to his clients if and when this appeal is heard to indicate to the court that one or more of the grounds of appeal are not being proceeded with and that quitefrequently happens. Subject to any unnecessary costs that may have been occurred by a party not in default, that is not a matter which would create any problem, i.e. that a party would wish to indicate at the hearing of the appeal that he did propose to proceed with some of the grounds of appeal. Here we are asked to do something entirely different. We are asked effectively to allow the appellants to present a fresh and different appeal to the court and it is noteworthy that at no stage in this morning's hearing, did Dr. Forde indicate any intention on his clients part to abandon the present notice of appeal and to treat the notice of appeal that he now seeks to lodge as the only notice ofappeal.

9 It is sufficient to say that the court has no jurisdiction whatever in my view to accede to that application. If Dr. Forde or his client wishes to...