Judgment Title: Superwood Holdings Plc & ors -v- Sun Alliance and London Insurance Plc t/a Sun Alliance Insurance Group & ors
Neutral Citation:  IESC 14
Supreme Court Record Number: 140/01
High Court Record Number: 1989 7315 P
Date of Delivery: 21/02/2014
Court: Supreme Court
Composition of Court: Fennelly J., McKechnie J., Laffoy J.
Judgment by: Fennelly J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 140/01Fennelly J.
SUPERHOLDINGS HOLDINGS Plc
SUPERWOOD EXPORTS LIMITED
SUPERWOOD INTERNATIONAL LIMITED
and SUPERWOOD (U.K.) LIMITED
SUN ALLIANCE AND LONDON INSURANCE Plc
Trading as SUN ALLIANCE INSURANCE GROUP
PRUDENTIAL ASSURANCE COMPANY LIMITED CHURCH AND GENERAL INSURANCE COMPANY LIMITED
and RAYMOND P. MCGOVERN AS LLOYDS UNDERWRITERS SOLE REPRESENTATIVE
REPUBLIC OF IRELAND
JUDGMENT of Mr. Justice Fennelly delivered the 21st day of February 2014.
1. The Court has before it an application which seeks a number of orders in respect of an appeal, in particular that the appeal be re-entered and to admit new evidence, in the above named proceedings, although that appeal was dismissed by order of this Court on 15th March 2004. These entire proceedings, it has to be said, have a truly extraordinary and unfortunate history.
2. Nonetheless, the present application needs to be explained in the context of this hugely protracted litigation. It will then be necessary to consider the orders sought in the Notice of Motion.
3. In the account now given, the appellants will be described under the general title of Superwood.
4. The history commences in 1987 with a fire at a premises owned by Superwood in Bray, County Wicklow. Superwood had insurance policies for consequential loss. It claimed the total resulting loss was in excess of IR£2 million and made claims under its insurance policies. The two sets of insurers repudiated liability at an early stage, in reliance on a condition in the policy and on the ground of fraud, in effect that the claim had been so exaggerated that it could not have been made honestly. Superwood initiated High Court proceedings against the insurers on 28th June 1989 seeking damages for wrongful repudiation of the insurance policies.
5. The resulting trial in the High Court took place over 116 days. O'Hanlon J delivered judgment on the 13th, 14th and 15th August and the 12th November, 1991, dismissing Superwood’s claim with costs. The judgment ran to some 423 pages and the transcripts to 8,500 pages. The trial judge had stated during the course of the trial that he would determine the issue of liability first, leaving over his decision on quantum. The judge found that Superwood had committed such extensive breaches of the terms of the insurance policies as to lead inexorably to a finding of fraud. In view of his finding that Superwood had been fraudulent any insurance benefit was therefore forfeited and it was not necessary to assess damages.
6. Superwood appealed the judgment of the High Court to the Supreme Court, where the hearing took 16 days. Denham J. delivered the principal judgment of a unanimous court. The appeal was allowed and the matter remitted to the High court for a re-trial. See: Superwood Holdings plc v Sun Alliance & London Insurances plc  3 IR 303. Denham J held that the insurers were not entitled to rely on a particular condition (Condition 4) of the policy and that, since this provided the only basis for the finding of fraud, that finding could not stand. The Supreme Court remitted the claim to the High Court “to determine what the losses were arising after the fire and what percentage of those losses were attributable to the fire; and such matters as are relevant and in issue.” (per Denham J, at page 361).
7. Following the Supreme Court decision, Superwood brought a motion for interim payment of damages and costs, which was struck out. This application was based on the argument that, by virtue of it’s ruling, the Supreme Court had allegedly recognised a clear minimum of liability of the insurers to Superwood.
8. A consent order was made in the High Court on 16th July 1996 providing for a two-phased structure for the hearing of the appeal. The losses attributed to the fire would be quantified first followed by an assessment of the losses arising out of the failure of the insurers to pay that money. In November 1996 the judge for the re-trial, Smyth J, ruled that it would not follow this two phased structure but proceeded to hear the case in a composite manner. He permitted the first three insurers to make lodgements, which Superwood could accept within 3 days. Superwood appealed to the Supreme Court on this matter but its appeal was rejected. It was allowed a further 3 days in which to accept the lodgements. The first 3 insurers made a lodgement of IR£3,152,761 and it would appear that the 4th insurer made a lodgement of IR£1,650,000.
9. In December 1996 and March 1997 Superwood brought a motion to the court for permission to adduce further evidence. This was rejected by the High Court and subsequently rejected by the Supreme Court in March of 1997.
10. During the course of the trial and after in May 1998 the High Court refused an application by Superwood to allow them to accept the lodgement of the 4th insurer. In June 1998 the Supreme Court allowed Superwood’s appeal in relation to this matter. Superwood then accepted the lodgement of the 4th insurer, and settled its case for an added sum of IR£1,420,000.
11. The High Court re-trial began on the 19th February 1998 and lasted 281 days. It was the longest civil hearing in the history of the state. It generated a transcript of 41,000 pages. On the 4th-6th April 2001 the High Court delivered its judgment orally. It found the first three insurers liable to Superwood in the total sum of IR£150,000 approximately, plus interest. Thus, Superwood had failed to beat the lodgement. This meant that Superwood was entitled to its retrial costs up to the date of the lodgement but that the first three insurers were entitled to their costs from the date of their lodgement. The High Court granted an Mareva injunction freezing Superwood’s assets up to IR£5,000,000.
12. Superwood appealed the decision of the High Court as well as the injunction on the 16th May, 2001 in a notice of appeal containing 336 separate grounds. In December 2001 the first three insurers applied to the Supreme Court for an order for security for costs of the appeal. The Court on 12th April 2002 ordered that security for costs be provided. The Master of the High Court determined the amount of the security in the sum of €1,593,102.56.
13. Superwood brought appeals to the High Court and to this Court in respect of the Master’s order. On 17th October 2003, this Court dismissed an application by Superwood to have the Master’s order set aside and in lieu thereof that the grounds of appeal be abridged so that a short appeal could be heard. However, Superwood was given a further period of three months to furnish the security.
14. Superwood was unable to provide that security.
15. The respondents on 26th January 2004, brought a motion before this Court for an order that the appeal of Superwood be dismissed or in the alternative struck out for failure to provide security for costs as ordered. That motion was heard on 13th February 2004. Judgment was delivered by Keane C.J. on 15th March 2004, the appeal was dismissed. Murray and Hardiman JJ concurred. See: Superwood Holdings plc. v. Sun Alliance plc. (No. 3)  2 IR 407.
16. Keane C.J. commenced by stating:
18. The Chief Justice concluded:
22. On 27th August 2013, Superwood issued a Notice of Motion to this Court which came on for hearing on 25th October 2013. That motions sought relief under twenty five headings, commencing with one of a number of applications to be permitted to adduce new evidence. Many of the reliefs were simply of a kind that are incapable of being granted, such as an order for “Execution of the FINAL judgment of the European Court of Human Rights…” and various other orders of a similar kind.
23. The most fundamental problem about that Notice of Motion was, of course, that it was brought in an appeal which had been dismissed and which is no longer pending before the court. The Notice of Motion contained one application that the order of 15th March 2004 be vacated “because the Supreme Court erred in fact in striking out the appeal.”
24. When this difficulty was pointed out, counsel sought liberty to amend the Notice of Motion. In the event, an entirely new Notice of Motion was substituted with the consent of the respondents for the first one. The appellant’s current motion was moved on 6th December 2013. It seeks:
b. An order enabling the Plaintiff's to amend the Original Notice of Motion to reflect new evidence which has lately emerged which greatly alters the gravamen or nucleus of the original appeal in accordance with the issues raised in the supplemental affidavit grounding this application in accordance with the issues raised in the supplemental Affidavit grounding this application in accordance with Order 58 rule 6 of the Superior Court Rules;
c. An order in accordance with Order 58 rule 8 to receive further evidence and make such directions as this Honourable Court shall deem correct in accordance therewith;
d. if necessary an order in accordance with Order 28 rule 11 addressing a misunderstanding which occurred in the judgement of the learned High Court Judge’s decision and which has now emerged whereby he addressed the question of mitigation which was not part of his remit;
e. and such further order as this Honourable Court shall deem correct:
f. and such further order concerning costs as this Honourable Court deem correct.
26. For these reasons alone, therefore, it is clear that the Notice of Motion cannot be maintained and must be dismissed. The result follows inevitably from the terms of the Notice of Motion itself, combined with the insurmountable obstacle of the order of this court of 15th March 2004. It should, nonetheless, be added that Article 34, section 4(6) of the Constitution provides: