High Court of Ireland Decisions

1. In this judgment I am dealing with one motion in each of six actions referred to above brought by different Plaintiff insurance companies, all against the same Defendant, namely, the Minister for Agriculture and Food and all arising out of the same incident, namely, the destruction by fire of almost 7,000 tonnes of intervention beef on the 7th January, 1992 at the United Meat Packers Premises, Ballaghaderreen, Co. Roscommon. The several Plaintiff insurers rejected a claim by the common Defendant (hereinafter "the Minister") for an indemnity in respect of the loss, amounting to some £30 million, and have issued these six proceedings seeking declaratory relief on the grounds, inter alia, of non-disclosure.

2. For present purposes it is not necessary to set out the precise manner in which each of the Plaintiff's potential exposure arises or indeed the amount thereof. Furthermore, in each of the six applications now being dealt with similar, although not identical, issues arise relating to additional instances of alleged non-disclosure together with a claim that fire cover had been excluded by reason of its exclusion by the lead insurer and, additionally, in one case a further point in relation to additional notices of cancellation, all of which points are now sought to be specifically pleaded in amended Statements of Claim.

3. The original Statements of Claim had indeed referred to non-disclosure but confined this allegation to non-disclosure of the fact that intervention beef was being stored at warehouses owned by United Meat Packers (UMP), including the warehouse at Ballaghaderreen, and not by the Minister. Furthermore, the terms of contract between the Minister and UMP were not disclosed to the Plaintiffs nor was the fact that same deprived the Plaintiffs of any right of subrogation against UMP.

4. The amended Statement of Claim sought to enlarge this category of alleged non-disclosure of material facts to include allegations relating to the knowledge of the Minister in relation to irregularities and abuses at the UMP plant in connection with the operation of the Aid to Private Storage Scheme (APS) and Export Refund Scheme (ERS) and in relation to the intervention arrangements, that specifically between September and December 1988 irregularities in the foregoing categories took place whereby ineligible pieces of meat under the APS were included in boxed meat and there was a failure to achieve individual wrapping required under the ERS, that as early as 1989 the Minister was aware that a permanent presence system in Ballaghaderreen was not in operation and there was no full time or adequate control, that an associated plant in Ballyhaunis was suspended from intervention de-boning for two weeks from 5th September, 1989, that UMP was the subject of a £1.4 million penalty in May of 1991 due to irregularities in the operation of the APS and the ERS, that the Minister's Department in 1991 considered suspending the Ballaghaderreen plant because of irregularities under the Intervention Scheme and that officials in the Minister's Department had concluded that beef was being wrongfully and improperly removed from the plant at Ballaghaderreen or had been stolen as a result of which these officials had concluded that the de-boning operating at Ballaghaderreen should be suspended.

5. In addition to the foregoing amendments which deal with alleged non-disclosure in relation to

6. A third category of amendment pleads that in fact any contract after the 1st November, 1991 or alternatively the 1st January, 1992 did not include cover for storage risks in respect of fire.

7. Additionally, in the case of one set of Plaintiffs, namely, Eagle Star France and Others (1992: No. 1336P) an additional notice cancelling all contracts of Insurance is sought now to be included in a Statement of Claim which already includes a plea in relation to a similar notice dated a month later.

8. The Minister for Agriculture and Food submits that these amendments should not be allowed. He says that they are not relevant. Affidavits sworn on his behalf make the point that the meat the subject matter of the APS was dealt with under different regulations, was totally separate from intervention beef and always remains the property of the contractor and never becomes the property of the Minister. He says that the kind of alleged regulatory default is not relevant to fire risk because these defaults had nothing to do with anything that might give rise to an increased risk of fire, insofar as the allegations relate to theft he claimed that the relevant policies do not cover theft, he denies that there were ever systematic abuses at Ballaghaderreen and rejects that the Minister knowingly dealt with "unscrupulous agents" . Any irregularities were primarily of a procedural or technical nature and were not in any case relevant to fire risk. In relation to the allegation that the permanent presence system was not complied with, he makes the point that this was a discretionary system and there was no warranty as to permanent presence.

9. In addition, the point is made that this application could have been brought much sooner and certainly shortly after the publication of the Beef Tribunal Report in July 1994 and that the absence of a sufficient explanation for delay (or total absence thereof in two cases) being a delay of some three years, should be weighed in the balance against affording the Plaintiffs the reliefs they now seek as should the inconvenience to the Minister's conduct of his defences comprising extra length of the hearing and a greatly enlarged discovery. Furthermore, the introduction at this stage of the amended pleadings would mean that the Minister's claim for some £30 million would be delayed for a further period of time. All of these considerations amount to an injustice to the Minister if the amendments are allowed.

10. In relation to the non-disclosure amendments, the Minister's Counsel suggested a refinement as follows, namely:

11. Counsel for the Minister drew my attention to the phraseology of Order 28 Rule 1 which refers to the determination of "the real questions in controversy between the parties" . She submitted that this implies something more than a stateable pleading point which might indeed survive an attack that it disclosed no reasonable cause of action under Order 19 Rule 28 but could be said nonetheless to have no reality. It would have no reality, for example, if it could not conceivably support a conclusion which would afford the Plaintiff relief or if it was inconsistent with other pleas in the Plaintiffs' claims. Counsel also submitted that on this application the onus is on the Plaintiff (in relation to the non-disclosure amendments) to establish by credible evidence that there is a real issue as to whether an insurer would take the newly pleaded factors into account when considering accepting a risk. She submitted that the onus was on the Plaintiffs and could be discharged only by evidence from an insurance professional. The Affidavits in support of the application were sworn by solicitors.

12. Counsel for the Plaintiffs submit as follows:-

13. Furthermore, it is not an injustice to the Defendant in the sense contemplated by these authorities that the trial would be thereby lengthened or discovery enlarged because these are consequences which would have obtained had the pleas been included in the original Statements of Claim and there is only injustice in the sense identified if the Defendant is put in a worse position by the allowing of the amendments than he would have been had they been included originally.

14. Alternatively, it is submitted, that there is in fact evidence and Counsel for the Plaintiffs remind me that in an interlocutory application such as this one, hearsay evidence is admissible. It is clear from the Affidavits sworn, particularly by Mr. Bourke, on behalf of a number of the Plaintiffs that he had discussions with his insurer clients and that therefore his assertion that the facts which are the subject of the proposed amended allegations in relation to material non-disclosure are facts which insurance professionals would have considered relevant to their undertaking the fire risk in question is an assertion that can be accepted as evidence on this motion by the Court. Furthermore, the Court should not give equal weight to the assertions made by the two deponents on behalf of the Minister, neither of whom profess any expertise in relation to insurance. Accordingly, there is satisfactory evidence to support the application if such is needed.

15. They further submitted that in general, the principle is that the amendments should be allowed if it is necessary to do justice between the parties: grave injustice would be done to the Plaintiffs if they are refused this amendment and could have succeeded had it been included but no injustice would be done to the Defendant if it is now included and at the hearing it provides no relief because the matter can be adjusted by a costs award at that stage and no unfair prejudice, in the sense identified already, is claimed by the Defendant.

16. In relation to delay, it is stressed that delay of itself has never been a cause for refusing an amendment but only a delay which is coupled with some additional hardship to the Defendant if the amendment were allowed.

17. I accept the observation of Kinlen J. in Bell -v- Pederson (1996: 1: ILRM) at page 297 where he says that the main criterion in any case such as the present is to try to do justice between the parties and this explains why Order 28 is so wide.

18. Secondly, I accept that an amendment should be allowed if it is necessary to ensure that the real issues in controversy are before the Court, provided this does not do an injury or injustice to the other party. The sort of injury in contemplation is, however, such as was stated by Lord Keith of Kinkle in Ketteman -v- Hanson Properties Limited (1987: AC: 189):-

19. Thirdly, I accept that the objects of the Courts does not include the punishment of parties for mistakes that they may have made in the conduct of their cases (see Crooper -v- Smith [1883] 26 CHD at page 710).

20. In relation to the submission that the Court should require credible evidence at this stage that there is a real controversy in relation to whether an insurance professional would consider the matters sought to be included in the material non-disclosure amendments, I consider that the observations of Murphy J. in Aer Rianta -v- Walsh Western International Limited (1997: 2: ILRM: 45) particularly at page 50 ( "these are matters which would be considered more properly on the trial of the action if and when liberty to amend is granted" ) and page 51/2 ( "the infirmities in that defence which the solicitor on behalf of the Plaintiff underscored in her affidavit and to which the learned trial judge adverted, will be explored at the trial and no doubt in the context that this particular defence was not incorporated in the pleadings as originally delivered" ) indicate that something less than formal evidence is required on an application such as the present. In this context I was asked to, and did, consider the judgment of Barron J. in Shepperton Investment Company Limited -v- Concast (1975) Limited and Others (unreported: 21st December, 1992). Whilst it is true that he comments (page 8 of the unreported judgment) adversely on the lack of an attempt in the affidavits sworn by the solicitor for the plaintiff to explain the technical nature of the amendment sought (and I note, indeed, as to why the defects had not been made known to the defendant before) and on page 10 the learned Judge observes "clearly, if the plaintiff has a good case in respect of its amended claim, it is facing a serious injustice if it is not allowed to make it" , nonetheless it is clear that this portion of the judgment is concerned predominantly with the impact of a fourteen year delay on the exercise of the Court's discretion and I do not read these observations as indicating that the relevant credible evidence is a pre-requisite to success. I accept that both these observations and those already referred to of Murphy J. from the Aer Rianta case are just that, namely, obiter dicta . The precise point as to whether evidence is or is not required does not seem to have been decided: as between the two sets of obiter dicta from the two judgments, I consider those of Murphy J. to be somewhat more explicit and closer to asserting that the testing of any pleaded allegations is a matter for evidence at the trial than are those of Barron J. to asserting otherwise. For my own part, I would consider the thrust of the authorities and the application of the general principles to establish that the amending party is entitled, without necessarily adducing primary evidence, to an amendment which discloses a reasonable cause of action (or defence) provided no injustice is done to the opposing party.

21. Having listened to the careful submissions of Counsel, my view is that an amendment to the pleadings should be allowed if it would have been appropriate in the original pleadings, would have withstood an attack under Order 19 Rule 28 and provided no injustice (in the sense contemplated by the authorities) is thereby done to the opposing party.

22. If I am incorrect in this conclusion, I would say that in the present application I would consider that in any event there is acceptable evidence to the effect that the subject matter of the proposed material non-disclosure amendments is something which insurance professionals would consider relevant when considering the fire risk in this case, accepting, as I do, that on an interlocutory application hearsay evidence from a solicitor clearly based on instructions given to him from his insurance clients is admissible.

23. Applying these principles, my view is that no prejudice or injustice as contemplated by the authorities has been established by the Defendant; I do not consider that the delay in any of the cases is sufficient of itself to justify a refusal of the amendments; I consider that the real questions in controversy between the parties include all of the questions now sought to be comprehended by the proposed amendments, including those amendments dealing with the effect on the contracts of the Plaintiff insurers of the exclusion by the lead insurer of the fire risk and the inclusion of a specific reference to the additional cancellation notice in the Eagle Star France and Others case. Accordingly, I propose to allow the Plaintiffs to introduce amended Statements of Claim incorporating all the proposed amendments proposed in these motions.