High Court dismisses stay and striking out applications in aircraft insurance dispute over contingent cover timing.

THE HIGH COURT

[2025] IEHC 452

RECORD NO. 2024/3690

BETWEEN

WWTAI AIROPCO II DAC and

WWTAI AIROPCO 1 BERMUDA LIMITED

PLAINTIFFS

AND

GLOBAL AEROSPACE UNDERWRITING MANAGERS (EUROPE) SAS,

CHUBB EUROPEAN GROUP SE,

ABU DHABI NATIONAL INSURANCE COMPANY PJSC,

ALLIANZ GLOBAL CORPORATE & SPECIALTY SE,

AIG EUROPE S.A.,

AXIS SPECIALTY EUROPE SE BRUSSELS BRANCH,

CONVEX EUROPE S.A.,

SI INSURANCE (EUROPE) S.A.,

FIDELIS INSURANCE IRELAND DAC,

GREAT LAKES INSURANCE SE,

HDI GLOBAL SPECIALTY SE,

ARCH INSURANCE (EU) DAC,

NEXUS UNDERWRITING LIMITED ON BEHALF OF GIC RE BRANCH OFFICE

UK,

PARTNERRE IRELAND INSURANCE DAC,

PING AN PROPERTY AND CASUALTY INSURANCE COMPANY OF CHINA

LIMITED

(SHENZHEN BRANCH),

SIRIUSPOINT INTERNATIONAL INSURANCE CORPORATION (PUBLIC),

STARR INTERNATIONAL (EUROPE) LIMITED,

SWISS RE INTERNATIONAL SE,

BERKSHIRE HATHAWAY EUROPEAN INSURANCE DAC,

TOKIO MARINE EUROPE S.A.,

MAPFRE ESPAÑA COMPAÑÍA DE SEGUROS Y REASEGUROS S.A.,

MSIG INSURANCE EUROPE AG,

LLOYD’S INSURANCE COMPANY S.A.,

STARR EUROPE INSURANCE LIMITED

DEFENDANTS

Judgment of Mr. Justice Michael Quinn delivered on the 7th day of August 2025

1. The plaintiffs are aircraft leasing companies in a group controlled by FTAI Aviation Limited (“FTAI”). In these proceedings they claim under insurance policies issued by the defendants indemnity, damages and interest arising from the loss of aircraft and engines which they claim occurred following and as a consequence of the invasion of Ukraine by Russia on

24 February 2022 and subsequent actions by the government of Russia and sanctions and other actions by the European Union, and the governments of the United Kingdom, the United States of America and others.

2. This judgment relates to applications by the defendants for a stay of the proceedings pending the determination of proceedings before the High Court of England and Wales which the defendants say relate to the same equipment and losses and will, they submit, resolve all or many of the issues in those proceedings. Nineteen of the defendants also seek an order striking out the proceedings on the grounds that they disclose no reasonable cause of action, and/or are bound to fail, and/or have no reasonable chance of succeeding, and/or are premature.

3. For the reasons stated below I have decided to refuse these applications.

The Leases

4. The first named plaintiff is incorporated in the State. The second plaintiff is incorporated in Bermuda.

5. The first plaintiff owns two aircraft and four engines which are the subject of these proceedings. It leased the two aircraft and three engines to Azex Leasing Limited, a company incorporated in the State. It leased one engine to Azex B757 Leasing Limited, also incorporated in the State.

6. The second named plaintiff is the owner of seven engines. It leased four engines to Azex B757 Leasing Limited and three to Azex Leasing Limited. I shall refer to Azex Leasing Limited and Azex B757 Leasing Limited as the “lessees” or the “Azex companies”.

7. The Azex companies subleased all the aircraft and engines to Azur Air LLC, an airline incorporated and operating in Russia (“Azur”).

Events of February and March 2022

8. As of 24 February 2022 when Russia invaded Ukraine all of the equipment subleased to Azur was located in Russia and being operated by Azur.

9. On a series of dates commencing on 26 February 2022 FTAI, on behalf of the plaintiffs issued requests for the aircraft and engines to be immediately relocated to a location outside Russia.

10. Following the invasion of Ukraine the EU, UK and other authorities introduced measures prohibiting the sale supply transfer or export of goods suited for use in the aviation industry to any natural or legal person in Russia or for use in Russia.

11. On 1 March 2022 the plaintiffs issued notices of default and cancellation in respect of each of the engines on lease to the Azex companies and called for the immediate surrender and return of the engines to the plaintiffs together with all records relating to the engines. They called on the lessees to take actions required for the repossession and exportation of the engines.

12. On 2 March 2022 the plaintiffs issued similar notices in respect of the aircraft.

13. The plaintiffs say that despite these notices Azex have failed to return any of the equipment to the plaintiffs.

14. The plaintiffs claim also that the sub lessee Azur Russia has purportedly “reregistered” each of the aircraft on the Russian register and continues to operate the aircraft within Russia contrary to the demands and instructions of the plaintiffs. It is claimed that Azur continues to retain possession of all of the equipment. It is claimed that since 24 February 2022 there has been and is no prospect of securing the return of the equipment either in the foreseeable future or within a reasonable period of time and therefore that they are at a total loss of all of the equipment.

15. The leases and the subleases obliged the lessees and sub lessees to put in place insurance in respect of the equipment in accordance with requirements specified in the leases.

Azex insurance policies

16. The Azex companies placed insurance with all of the defendants. Hull (including spares) All Risks insurance (“All Risks”) was written by each of the 24 defendants. Hull (including spares) War and Allied Risks insurance (“War Risks”) was written by the eleventh named defendant HDI Global Speciality SE, the seventh named defendant Starr International (Europe) Limited and the twenty third named defendant Lloyds Insurance Company SA.

17. The policy documents record the combined value of the equipment at $89,681,780.07.

18. In the case of the All Risks policy the documents comprise a Policy Document, a Policy Slip, a policy “off slip”, and certain Certificates of Cover issued by Arthur J. Gallagher (UK) Limited, which is the broker to Azex.

19. The War Risks policies are evidenced by a similar suite of documents, with certain differences.

20. In describing the facts I rely on the Second Amended Statement of Claim delivered 24 March 2025 and on affidavits exchanged in this application. Almost all of the facts and documents and their import are in dispute in the case, and definitive findings on the most substantive of such issues will be a matter for the trial court.

21. All of the relevant insurances are said to have been in place for the period from 1 December 2021 to 1 December 2022, therefore covering the time of the events in Ukraine and Russia which are said to have given rise to the losses claimed.

22. I shall refer in more detail later to individual clauses within the policies whose meaning is in dispute. Common features of the documents include the following.

23. Firstly, the contracts contain a choice of law and jurisdiction clause in the following terms: - “This insurance shall be governed by and construed in accordance with the law of the insured’s country of domicile and each party agrees to submit to the exclusive jurisdiction of the courts of the insured’s country of domicile in any dispute arising hereunder”.

24. The Azex companies are incorporated in the State. Therefore, it is common case that the choice of law and submission to jurisdiction in favour of the courts of Ireland applies in respect of all disputes under the Azex insurance policies.

25. The named insured parties are the Azex companies, and other parties.

26. Secondly the plaintiffs rely on terms and endorsements on the policy documents which record that the equipment is the subject of leasing and finance arrangements. These are referred to as “AVN67” endorsements. These stipulate that “Contract Party/ Parties”, said to include the plaintiffs, are included as “Additional Insured” parties. These endorsements are the basis on which the plaintiffs claim their entitlement to recover as insured parties under the policies. There are disputes as to the scope and application of these endorsements. However, for the purpose of this application it is accepted that the plaintiffs are entitled to maintain these proceedings in reliance on these endorsements as if they were named as the insured in each case.

Direct Cover – All Risks

27. The plaintiffs say that the principal clause in the All Risks policy which confers on them direct cover, sometimes referred to as “possessory” cover, is to be found in Section 1 of the Policy Document which is headed “Hull All Risks”. Paragraph 1 provides as follows:

“Subject always to the applicable limit(s) of insurance and deductible(s) as set forth in the insurance schedule, the insurers shall pay for physical loss of or damage to aircraft, sustained during the period of insurance.”

28. Section 2 is headed “Spares All Risk". Clause 1 provides as follows:

“To pay for physical loss of or damage, less any applicable deductible as set forth in the Insurance Schedule, sustained during the Period of Insurance to spare parts, engines, flight spares kits (whilst not attached to the Aircraft) ground support equipment (including mobile equipment and unlicensed vehicles), tools, tool boxes, components and equipment destined to be fitted to or form part of an aircraft, electronic data processing in units and/or associated and/or similar equipment and/or to be used in connection with the servicing, maintenance or repair of aircraft (hereinafter referred to as "spares") being the property of the insured or the property of others for which the insured has agreed to be responsible against all risks of loss or damage while such property is in the care, custody or control of the insured, whilst at the premises of others, whilst under process or whilst in transit by means of conveyance including by the insured's aircraft”.(emphasis added)

Contingent Cover – All Risks

29. Section 1 Clause 2 is headed “extensions of cover”. It contains at 2(d) a provision for “Contingent Hull All Risks” which provides as follows: “The insurers shall pay reasonable expenses incurred by or on behalf of the insured for physical loss of or damage to the insured's owned or operated aircraft whilst chartered out leased to other persons/organisations and insured by such other persons/organisations, subject to the extent that the insurance effected by such other persons/organisations provides cover for loss of or damage to the subject aircraft, such cover shall be considered as the only cover in force and to the extent that the insurance effected by such other persons/organisations does not respond then cover hereon shall apply". (emphasis added)

30. This contingent cover provision for Hull All Risks finds no equivalent or corresponding clause in the Section relating to “spares”.

31. The endorsement relied on by the plaintiffs to designate the plaintiffs as a contracting party and an “insured”, is described in Endorsement Number Five as applying “in the event of the contract parties failing to be indemnified under the terms of the insurance effected by the sublessee”.

32. In the Risk Slip for All Risks, contingent cover is described as follows: “contingent hull coverage in respect of the insured's owned or operated aircraft whilst chartered out leased to other persons/organisations and insured by such other persons/organisations, subject to the extent of the leasing operator's policy provides coverage for hull all risks insurance for the subject aircraft such coverage shall be considered as the only coverage in force and to the extent that the leasing operator's policy does not respond coverage hereon shall apply.”

33. Firstly, the defendants say that the provisions for "direct" cover, quoted at paras 27 and

28 above only apply in respect of equipment, retained in the custody or possession of the insured, meaning for this purpose Azex and do not apply in circumstances where the equipment has been subleased to operators, as in this case.

34. Secondly the defendants submit that in respect of contingent cover which would otherwise apply to equipment not retained in the possession of the insured, the language of the policy documents has the effect that the cover only applies after the operator policies, described below, have failed to respond and that this means the insured must first pursue those policies to the point of judgment and exhausting remedies for recovery. The plaintiffs say that they notified claims under the operator policies early in 2022 and have not yet received indemnity or payment thereunder, and therefore those policies, by definition have already not responded, or they have “failed to be indemnified” under the terms of the insurance effected the sublessee.

War Risk policies

35. Similar provisions and similar issues arise on the War Risk policies. For example in the War Risks Policy Booklet the direct cover is stated to arise under clause 1 which provides: "aircraft as set forth in the schedule of aircraft, being aircraft operated by the insured, which are owned by the insured or for which the insured has agreed to be responsible".

36. The contingent cover for War Risks is said to apply under Section 6 of the Policy Booklet headed “Other Coverages” which includes a provision at paragraph 4 headed “Contingent Cover on the Insured's Aircraft and Spares and Equipment whilst leased/used by others” which provides as follows:

"this insurance automatically includes contingent cover on the insured's owned or leased aircraft and spares and equipment whilst leased/subleased/used by others when required by the insured. This insurance shall apply in respect of aircraft (whether or not described in the schedule of aircraft) and spares and equipment the subject of the lease and/or sale agreement [until the relevant asset has been safely returned] but only in the event that the operator's own whole war insurances failed to respond".

37. Again, a dispute arises between the plaintiffs and the War Risk defendants as to the conditions in which contingent cover will apply. These defendants say also that direct cover applies only in respect of aircraft “operated by the insured", being Azex, and does not cover loss of equipment subleased out, in this case to Azur.

The Azur policies

38. As required under the subleases, Azur placed All Risks insurance and War Risks insurance in respect of all of the equipment. As the operator of the equipment, it effected policies in the first instance with a Russian insurer Ingosstrakh Insurance Company. The terms of these policies broadly correspond to the terms of the Azex policies summarised above. The plaintiffs are also noted as contract parties pursuant to AVN67 and other endorsements in those policies. The insurance provided by Ingosstrakh was reinsured, with London and international markets reinsurers.

39. All of these policies include choice of law and jurisdiction clauses in favour of the domicile of the insured, which in the case of Azur, is the laws and courts of Russia.

English proceedings: CL-2023-000162

40. On 24 March 2023 the plaintiffs, and another entity in the FTAI group commenced proceedings in the High Court, England and Wales, claiming indemnity under the Azex policies and the Azur policies, being Azur’s operator policies and the reinsurance policies. Claims under the reinsurance policies rely on certain assignments, and “cut through” clauses.

41. The defendants include a number of the defendants in these proceedings, or UK affiliates or branches of them, and others, including Ingosstrakh. The claims relate to the loss of nine aircraft and fourteen engines, including the aircraft and engines the subject of these proceedings.

42. On 2 May 2023, the defendants brought applications challenging the jurisdiction of the English court. They did so on the ground that the claims had been brought in breach of exclusive jurisdiction clauses in favour of the country of domicile of the insureds, which in the case of the Azex policies is Ireland, and in the case of the Azur policies, is the Russian Federation.

43. On 4 March 2024, a Consent Order was made in the High Court (EW) recording and ordering that the Russian jurisdiction challenges were withdrawn and that the non-Russian claims, including the claims under Irish law and jurisdiction pursuant to the Azex policies, be stayed.

44. By a judgment delivered 28 March 2024 [2024 EWHC 734] Henshaw J. held that the courts of England and Wales would retain jurisdiction over claims subject to Russian law and jurisdiction, pursuant to the Azur operator insurance and the reinsurance policies. The proceedings are being case managed together with 91 other cases relating to insurance and reinsurance policies issued to Russian operators. These are now referred to generally as the English Operator Policy proceedings. A trial of those proceedings is listed for hearing to commence on the first day of Michaelmas term 2026 (October 2026) with an estimated length of 8 to 10 weeks.

45. A case management conference (“CMC”) was scheduled for the week commencing 3 June 2025 and was adjourned before Picken J. to 7 July 2025. Among the issues for consideration at the CMC were questions as whether the trial on October 2026 will be a trial of all Russian OP claims, including the claims of the plaintiffs, a trial of common issues, a trial of sample claims or some combination of the foregoing.

46. Directions were made as to disclosure of documents, filing and delivery of statements of witnesses of fact and expert witnesses, the making of applications for summary judgments and/ or orders striking out certain claims, and amendments to statements of case.

47. The parties were directed to seek to agree a list of issues for trial, taking as their starting point a list attached to the Order for Directions made by Picken J. That schedule identifies 62 issues for trial, and an additional list of issues for expert evidence as to Russian law, London Insurance and Reinsurance Market Understanding and Practice, US Sanctions and Sanctions Licensing. The order makes it clear “for the avoidance of doubt” that the Court has not determined whether there should be a trial of only those listed issues, or some of them, or a full trial of all issues in the proceedings. That determination was reserved to a further Case Management Conference to be held on 27 and 28 October 2025.

48. Picken J. also directed the parties to collaborate to produce a schedule which sets out the findings in a recent judgment of Mr. Justice Butcher delivered on 11 June 2025 in separate lessor policy proceedings (Aercap Ireland Limited v. AIG Europe SA and Others (CL-2023- 000294) and five other cases) (the Aercap Judgment) (see paragraphs 93 et seq. below) that are relevant to the Russian OP claims and the parties’ position in respect of same, and to identify whether they adopt, consider they are bound by or challenge the position in relation to each such finding for the purpose of the OP trial.

49. The plaintiffs say that there is no certainty that their claims pursuant to the Azur policies will be heard and determined conclusively in the October 2026 trial. Their claims under the Azex policies, having been stayed by reason of the exclusive jurisdiction clause in favour of the courts of Ireland, are the claims made in these proceedings in this court.

These proceedings

50. On 18 July 2024, these proceedings were commenced by a plenary summons. On 29 July 2024, an order was made entering the proceedings in the Commercial List.

51. Arising from the events described above, the claims in these proceedings are confined to claims pursuant to the Azex policies.

52. The Azex policies are the Azex All Risks policy (evidenced by the Policy Booklet, Main Slip Off Slip and Certificates of insurance referred to earlier this judgement), and the Azex War Risks, evidenced by a similar suite of documents. Direct claims are made for the total loss of the equipment, and the plaintiffs make a claim “further or in the alternative" pursuant to the contingent cover provisions.

53. The plaintiffs say that even where the equipment has been subleased to Azur, they are entitled to maintain the claims under the simple language of the direct claims sections in the policies. The alternative or contingent claim that is that the Azur operating policy and the Azur Russia reinsurance policy, which are subject to the continuing English proceedings, have failed to respond.

54. One of the fundamental objections made by the defendants is that the question of whether the Azur policies operator policy has “failed to respond" is a central issue to be determined in the English proceedings. The defendants say that it would be inappropriate to try the contingent claim before there is a determination by the court seized of that very question, namely the English court.

These applications

55. Twenty of the defendants, being the first named defendant Global Aerospace Underwriting Managers (Europe) SAS, and nineteen others (the Whitney Moore defendants) have applied for the following orders:

1. An order pursuant to O. 63A r. 5 and/or r. 4 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court staying the within proceedings generally or on such terms as it shall deem fit pending the determination of proceedings in the courts of England and Wales under claim number CL – 2023 – 000162, and/or such other events or proceedings as may be identified in such order.

2. In the alternative an order pursuant to O. 19 r. 28.1 and O. 63A r. 4(4) of the rules of the Superior Courts and/or the inherent jurisdiction of the court striking out the entirety and/or such parts of the plaintiffs claim as to this Honourable Court shall appear fit as against those twenty defendants on the grounds that it/ they:

(a) disclose no reasonable cause of action, and/or

(b) are bound to fail and/or

(c) have no reasonable chance of succeeding and/or

(d) are premature.

56. The application is supported by two more of the All Risk defendants namely the ninth defendant Fidelis Insurance Ireland DAC and the twelfth named defendant Arch Insurance (EU) DAC.

57. Three of the defendants who are both All Risk defendants and War Risk defendants, namely the eleventh defendant HDI Global Speciality SE, the seventeenth defendant, Starr International (Europe) Limited and the twenty third defendant Lloyds Insurance Company SA, have issued an application for an order pursuant to the inherent jurisdiction of the court or pursuant to O.63A r. 5 of the Rules of the Superior Courts staying these proceedings until such time as the Azur OP proceedings have been finally determined by the courts of England and Wales or have otherwise concluded. The do not seek the alternative order striking out those proceedings.

58. The second named defendant Chubb European Group SE, issued a separate application for an order pursuant O. 63A r. 5 and/or the inherent jurisdiction of the court staying these proceedings until such time as the determination of Module 1 in other proceedings pending before this court, being Avalon Aerospace (Hamilton) AoE 1 Limited and Others v Lloyds Insurance Company S.A. and Ors (2022/ 5514 P), and other cases all referred to as Aircraft Lessor Proceedings.

59. Before the conclusion of the hearing of these motions the court was informed that a settlement had been concluded in the Aircraft Lessor Proceedings and that the second defendant was not proceeding with its application in this case.

60. The application of the Whitney Moore defendants is grounded on an affidavit sworn by Mr Colin Hayes, partner in the firm of Whitney Moore solicitors. Mr Hayes states the following.

61. Firstly, there is a significant overlap between the fact issues to be determined in the English proceedings and the facts in these proceedings. This is a reference, inter alia, to the fact that the claims arise from the same set of events which occurred in February 2022 namely the Russian invasion of Ukraine and the subsequent decrees of the government of Russia, the application of sanctions by the EU, UK and other countries, the termination of leases and the failure of lessees and sublessees to return the equipment.

62. There is some force in this submission, in that it is undoubtedly the same sequence of the events of 2002 which have given rise to all the claims. That means that any determination of those facts is likely to shorten the length of a trial in these proceedings. It does not mean that the legal consequences of those findings are necessarily determined for the purpose of these proceedings, having regard at least to the fact that different laws govern the claims namely the laws of the Russian Federation and the laws of the State.

63. Secondly, it is said that the policies being pursued in the English proceedings are evidenced by the same documents as those which are relied on in these proceedings. Whilst there is a significant overlap in terms of the policy documents, a fundamental difference is that the choice of law and jurisdiction clause in favour of the country of the insured means that the laws of Ireland will be applied to the claims made by the plaintiffs in these proceedings and Russian law will govern the claims made in the English proceedings.

64. Thirdly, it is said that the reliefs sought are virtually identical, being indemnity for the loss of the same aircraft and engines. I return to this at paragraph 67 et seq. below.

65. Fourthly, it is said by the defendants that the provisions of the Azex policies which provide for contingent insurance can only apply in respect of claims relating to the loss of equipment which has been leased out or is otherwise no longer in the possession of the insured. They say that a determination of whether those policies respond can only be made in the proceedings before the English court seised with that very question in the continuing claims pursuant to the Azur policies.

66. Fifthly, the defendants say that if the plaintiffs are correct in their claim that the clauses which provide for direct cover, not contingent on any failure of response of other policies, applied to the circumstances which prevail, namely where the equipment has been leased out, then the provisions for contingent cover would be superfluous. This is based on a proposition that the direct cover is “possessed cover” only. The plaintiffs make the converse argument that they are entitled to have taken out several layers of insurance and to rely now also on the direct cover under the Azex policy.

The same relief or losses

67. The defendants say that the amounts claimed in these proceedings are in respect of the same loss which is the subject of the English proceedings and that the plaintiffs cannot recover “on the double”.

68. It is said by the plaintiffs that an additional claim which would survive even if they are successful in the English proceedings is a claim for damages for late payment in respect of their losses.

69. In the English proceedings a claim is made for compound interest.

70. In the Irish proceedings the relief sought includes “interest pursuant to statute”. It includes also a claim for “damages for delay in providing an indemnity under the All Risks policy or the War risks policy”. The defendants say that in substance the plaintiffs claim for damages for late payment is not different to the claim made in the English proceedings for compound interest.

71. The defendants say also that the claim for damages for late payment in such a case is an action not known in Irish law. They cite the judgment of Carroll J. in Kerry Tree (Technology Limited.) and Others v Sun Alliance and London Insurance Plc [2001] IEHC 144. Although that judgment related to an application for security for costs, Carroll J. made the observation that the claim for damages made in that case “amounts to a claim for damages for delay in paying damages which is not a claim known to the law”.

72. Although the English authority on this point Sprung v Royal insurance UK Limited. [1999] Lloyds Report 11, was referenced in the summary by Carroll J. of submissions made to her in that case it was fairly acknowledged by the parties that the judgment in Kerry Tree, relating as it did to security for costs, did not entail any exhaustive examination of this very substantive question of law.

73. The defendants pointed out that the rule against awarding damages for late payment was so enshrined in English law, as recognised by Carroll J. in Kerry Tree, that when it was amended in 2015 in England and Wales that was done by statute.

74. The defendants submit that even if the plaintiffs were correct in their assertion that they would after succeeding in the English proceedings, still be entitled to such damages they would not, if they believed in such a claim, be precluded by a stay from pursuing that claim in these proceedings. At the same time they suggest that if the plaintiffs recover their losses and compound interest, the ‘incremental’ damages claim would be so marginal that it would not be worth pursuing, although this is only an observation which does not go to the core of their application.

75. This submission invites this court to speculate that since the findings of law by the English court in relation to the Azur policy claim will not bind this court it would be an unattractive prospect for the plaintiffs to pursue the case in this court, having to prove the entire case again in the hope of recovering not the principal loss which they may already have recovered in the English proceedings, but only the “incremental” damages which they claim for delay in payment.

76. The plaintiffs accept that for the most part the losses claimed in the two cases proceedings are substantially the same, but they insist that the additional damages for which they claim in these proceedings are still recoverable and therefore that not all the claims in these proceedings will be resolved by a determination of the proceedings in England.

77. The essence of the defendants’ submissions on this issue is that they do not by this application seek to preclude the plaintiffs forever from pursuing those “incremental” damages should they wish to do so following the determination of the English proceedings.

Direct and contingent cover

78. The defendants say that when one applies the “text in context” principles to the interpretation of the contracts as a whole, per Law Society of Ireland v. Motor Insurer’s Bureau of Ireland [2017] IESC 31, and other such cases, and when the documents are read in their entirety the only sensible construction is firstly that the direct cover only applies in respect of equipment which remains in the possession of the named insured, Azex, and secondly that the contingent cover applies only if and when there has been a determination, which will be made in English proceedings, as to whether the Azur operator policy had failed to respond.

79. The plaintiffs say that since they served demands under the policies in 2022 following the events which occurred in Ukraine and subsequent events, no payment has been made under any of the policies. They submit that it is self-evident that they have not been indemnified by the operator policies. They submit also that it cannot be said by the defendants that this policy has not yet been found to “not respond”, in circumstances where those same insurers, or most of them, are the very parties declining cover on the Azur operator and reinsurance policies and defending the English proceedings.

80. The plaintiffs also say that the text of the direct cover is not only “possessory”. The defendants say that on a plain reading of the policies, direct cover is simply not available in circumstances where the equipment has been leased out or is no longer in the possession of the lessor or sublessor. Different language appears in the Spares All Risk section which provides for payment for loss of equipment “whilst such property is in the care, custody or control of the insured, whilst at the premises of others, whilst under process or whilst in transit by any means of conveyance including by the insured’s aircraft.” The plaintiffs rely on this language in respect of spares to prove that the direct cover extends whether the spares are still in the insured’s possession or in the custody of others.

81. Although the defendants suggest in their affidavits and submissions that the question of contingent cover and whether the underlying Azur policies have “failed to respond” must be determined first in English proceedings, they do not say that if they are successful in defending those English proceedings, that will be the end of the matter. They do not concede that if the plaintiffs fail in the Azur proceedings in England the Azur policies will not have responded and therefore that the plaintiffs will be entitled to payment out under the contingent cover. They reserve their position as to all defences available to them.

82. It is therefore not clear that a determination of the Azur policy claims will conclusively determine every question remaining to be resolved in these proceedings.

Other features of the case

83. When the defendants brought their challenges to the jurisdiction of the English court they did so in reliance on the choice of law and jurisdiction clause. The witness statements grounding those applications were sworn by solicitors acting on behalf of the All Risks and War Risks defendants respectively. In each case they emphasised that claims of Azex, and by extension the plaintiffs as “contracting parties” are governed by Irish law and subject to the exclusive jurisdiction of the Irish court.

84. On behalf of the War Risks defendants Ms Wadsworth, a partner at CMS Cameron McKenna Nabarro Olswang, London said that her client’s “position is that the claimant should pursue their alleged entitlement to an indemnity under the insurance contracts by commencing proceedings against

(a) Ingosstrakh in the Russian Federation,

(b) UNIVERSALNA in Ukraine and

(c) Azex Leasing’s Insurers in the Republic of Ireland”.

Ms. Wadsworth continued “So far as claims under Azex Leasings Cover are concerned I am not aware of the claimants having identified or even intimated any basis whatsoever as to why the court should exercise its discretion in favour of ignoring the exclusive jurisdiction agreement favour of the Irish courts, and I am not aware of any such basis.”

85. The plaintiffs submit that having made these assertions in the English applications, it ill behoves them to now resist the prosecution of the proceedings in this court.

86. In the context of the jurisdiction challenge before the English court the plaintiffs requested from the defendants’ solicitors confirmation that if the English proceedings were stayed no challenge would be brought to contest the jurisdiction of the Irish court. No such confirmation was given.

87. The defendants say correctly that on this application they are not contesting the jurisdiction of this Court. They say that this application is for a case management stay because this case could become moot or substantially moot and it would be inappropriate that significant costs be incurred by all parties unnecessarily which can be avoided if the Azur claims are first determined in the English proceedings.

88. The defendants submit that this court should exercise its case management powers to stay these proceedings because of the greater risk that this court’s time will be taken up by a case where substantially the same facts and issues will be determined in English proceedings.

89. The defendants submit that even if the determination of the English court is not binding on every question of fact and law many issues will be resolved one way or the other which would at least shorten the trial of any remaining issues in this Court.

90. The correspondence in which the plaintiffs sought confirmation that no challenge would be brought in proceedings in this jurisdiction is of interest for another reason. The defendants were under no obligation before replying to that correspondence to take separate Irish legal advice as to what defences will be available to them in Irish proceedings if brought, or as to what interlocutory remedies, such as an application of this nature would be available to them.

91. Insofar as the plaintiffs complain that this question was never answered, the correspondence at least illustrates that a “red flag” was on display. The plaintiffs were by this correspondence on notice that no concession or confirmation of the type sought was being given.

92. This correspondence was exchanged long before the plaintiffs consented to the stay of the Azex claims as part of the English proceedings. It was not a condition of the consent stay that no application of this nature would ever be made in the Irish court. In fact, the plaintiffs had no alternative but to consent to this stay having regard to the clear language of the choice of law and jurisdiction clause, albeit that in respect of the Azur claims the English court ultimately decided that it was satisfied to retain jurisdiction in the face of clauses in favour of Russian courts.

93. I reference earlier (paragraph 48) the judgment delivered by Butcher J. in the Aercap proceedings on 11 July 2025. The parties have made supplemental submissions, each relying on that judgment to support their positions.

94. The judgment is an extensive work following a lengthy plenary trial of claims relating to aircraft lessor policies. For the purpose of this decision, I have limited my references to the aspects which the parties submit inform the stay application in these proceedings.

95. The first, and most relevant, aspect of that judgment is a decision that contingent cover in those cases does not require that a lessor pursue and exhaust, even to judgment, a claim under operator policies before this contingent cover can be said to have “failed to respond” or that the insured has “demonstrated an ability to recover” under operator policies, to refer to only two of the many different terms considered in that case.

96. In that case the court was concerned with claims by lessors. The judgment considered separately the different policy language across a series of policy documents and different versions of contingent cover. Whilst the court’s analysis in that case may be informative, I cannot conclude for the purpose of this decision that all of the differences between the parties in the case on this question will be determined by an application of that judgment.

97. The next significant finding by Butcher J. was that the losses claimed by the lessors fell under the War Risks coverage and not All Risk coverage. The All Risks defendants in this case submit now that if this finding was followed, it would dispose of the claims against them. They say that in the English proceedings some of the All Risk defendants have now issued strike out motions on the grounds that this claim has no realistic prospect of success and they say that these applications “are likely” to be heard in November 2025. They have indicated now that they are considering bringing such an application in these proceedings, and that this could be avoided if this stay is granted. It is then said that if leave to appeal the Aercap judgment is granted those strike out motions may be deferred. The uncertainty, even as to next procedural steps on this question, let alone substantive outcome, is such that it would be unsafe to decide this application by reference to this aspect of the decision.

98. Finally, Butcher J. made reference to the ability of contingent insurers held liable to pay, to pursue subrogation or contribution claims against direct insurers. The plaintiffs say that this means that if they succeed in the Azur claim in the English proceedings and recover under the operator policies, the insurers to Azur will be subrogated to the claims of the plaintiff, and/or Azex, thereby positioning them to continue the claims against the Azex lessor policies. The defendants disagree with this application of the finding of Butcher J. and submit that it is to misread his decision.

99. In all of these issues reliance on the Aercap judgment leads inexorably to an analysis of the merits of the most substantive issues to be determined at the trial of this case, the very course the parties have urged this court to avoid.

100. I am informed that applications have been made for leave to appeal the judgment. Since the decision itself, and any appeal judgment, however persuasive they may be, are not binding on this court, it would be unsafe for this court to anticipate the final outcome in determining these stay applications.

Irish case law

101. This court has a broad power to give directions relating to the conduct of proceedings, including a power in appropriate cases to stay proceedings. These powers derive from

O. 63(A) r. 5 of the rules of the Superior Courts 1986 (as amended) and the inherent jurisdiction of the court. The breadth of these powers was recognised in the two leading Irish cases on the subject of stays and case management namely Kalix Fund Limited v HSBC Institutional Trust Services (Ireland) Limited [2010] 2 IR 581 and Avoncore Limited & Ors. v Leeson Motors Limited & Ors. [2021] IEHC 163. Each of these cases concerned applications for a stay pending the determination of different proceedings then pending before the court arising from the same events. A critical difference between those cases and the case now before me is that in Kalix and in Avoncore the stay was sought pending the determination of other proceedings pending in this court, and not in a different forum such as a foreign court. In each of these cases the court refused the applications for a stay, but made case management directions so that the trials of the different actions could be progressed and case managed together to the end of avoiding unnecessary delay and cost.

102. In Kalix the court was concerned with separate actions by different groups of investors against fund custodians and intermediaries arising from the loss of investments incurred due to the bankruptcy of Bernard L. Madoff Investment Securities LLC. Clarke J. referred to the circumstances in which the court may order a stay, including common instances such as stays pending a binding arbitration process or compliance with mandatory procedural requirements. He then instanced cases where proceedings in one jurisdiction may be stayed because there are already in being proceedings in relation to the same subject matter in another jurisdiction. He continued as follows:

“Perhaps a closer analogy to the circumstances with which I am faced in these proceedings can be found in those cases where proceedings in one jurisdiction are stayed because there are already in being proceedings in relation to the same subject matter in another jurisdiction. Proceedings may be stayed where those latter proceedings are a more advanced stage, and where other factors that may be relevant in determining which proceedings are progressed at trial favour the alternative jurisdiction: see for example Reichhold Norway ASA v Goldman Sachs [2000] 1 WL

173 and Racy v Hawila [2004] EWCA Civ 209. The underlying rationale behind those cases is the understandable desire on the part of courts in all jurisdictions to avoid a situation where there may be conflicting decisions on the same issue. In those circumstances it is highly undesirable that two courts in two separate jurisdictions should have to consider the same specific question and the consequent risk of differing decisions. Likewise there may be circumstances where two different courts, within the same jurisdiction may have to consider how best to deal with competing litigation which has been properly commenced in the respective courts. … the underlying problem in each of the types of cases to which I have referred (notably Reichhold and Racy) is that there are two different bodies which have, prima facie, jurisdiction over a legally binding process dealing with more or less the same question. Where all of the relevant proceedings are before the same court (or can by a simple administrative step be brought before the same court) then it seems to me that one of the most important considerations that applies in those cases disappears. The risk of conflicting decisions does not arise where all of the relevant cases can be brought before the same court and can, if thought appropriate, be assigned to the same judge so that all issues in all cases will ultimately be determined by the same judge, thus removing any risk of conflicting decisions”.

103. Later Clarke J. stated the following:

“It does seem to me, at the level of principle, that a court has a discretion, in ordering its business, to ensure that scarce court resources and the resources of parties to litigation are not inappropriately wasted by an unnecessary duplication of litigation. In addition it is of course important measures are taken to minimise the risk of inconsistent determinations arising from different proceedings. It is for reasons such as those that the practice had grown up over recent years of cases being linked as a purely procedural measure to ensure that a series of cases which are common factors are assigned to a single judge, who will determine all relevant issues across the range of cases concerned”.

104. Clarke J continued:

“it seems to me that in assessing how to manage a series of cases, connected in the fashion which I have identified, the court needs, amongst other things to take into account the following factors:

(a) the fact that each individual plaintiff is entitled to have that plaintiffs’ proceedings determined in an expeditious manner, subject only to ensuring that there is no disproportionate added expense or drain on court time imposed.

(b) A consideration of the extent to which the first case to be tried is likely to bind all other cases in whole or in part.

(c) The need to ensure that any measures adopted which have the effect of preventing one or more cases from progressing in the way in which they might ordinarily be expected to progress, were they to be considered on a stand-alone basis, are no more than is necessary and proportionate to achieve the end of preventing unnecessary expense or use of court time.”

105. In Avoncore McDonald J. summarised the principles emerging from the decision in Kalix as follows:

“(a) The court has a broad power to give directions for the conduct of proceedings entered in the Commercial List. Order 63 r. 5 makes this clear. Under that rule, the court can give directions “as appear convenient for the determination of proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings”.

(b) The court has an inherent power to stay proceedings in a range of different circumstances. For present purposes, what is relevant is that the court has the power to stay one set of proceedings until another related case has been determined. A stay of this kind is, in essence, a procedural direction to the effect that no further steps should be taken in one set of proceedings until some other proceedings, or set of proceedings have been heard and determined.

(c) In ordering its business the court has a discretion to ensure that scarce court resources and the resources of parties to litigation are not inappropriately wasted by an unnecessary duplication of litigation. In addition it is important that measures are taken to minimise the risk of any inconsistent determinations arising from different proceedings. For the latter reason, cases can be linked with a view to ensuring that a particular series of cases (which share common factors) are assigned to a single judge who will determine all relevant issues across the range of cases concerned.

Importantly the device of linking cases and managing them together is not available as a solution in the case before me.

(d) As part of its power to manage the conduct of a series of cases in which there is either a significant factual of legal overlap, the court should aim to bring about a just and expeditious trial while at the same time, seeking to minimise costs and to ensure that scarce court resources are not wasted.

(e) Among the factors to be borne in mind in assessing how a series of cases are to be managed are the following:

(i) the fact that each individual plaintiff is entitled to have the proceedings determined in an expeditious manner, subject only to ensuring that there is no disproportionate added expense or drain on court time imposed.

(ii) consideration should be given as to the extent to which the first case is to be tried is likely to bind all other cases in whole or in part.

(iii) It is important to ensure that any measures adopted which have the effect of preventing a case from progressing in the ordinary way must be no more than is necessary and proportionate to achieve the end of preventing unnecessary expense or use of court time.”

106. McDonald J. then referred to the jurisdiction of the court to order sequencing of a trial and to direct case management of pleadings in the related cases.

107. The parties rely extensively on the above and other passages, and they are informative for my decision. However, they were cases where the court was managing a series of cases in the same division of this court. The tool of linking the cases and managing their progression forward is not available in this case. A final remark made by Clarke J. in Kalix is of assistance on this application as follows “in general terms and subject to the circumstances of an individual case or cases, a court should be most reluctant to prevent any progress at all in one party’s case simply because it may be that some or indeed many or even all of the issues in that case may come to be determined in another case which is more advanced and likely to come to hearing first.”

English cases

108. In Reichhold Norway A.S.A v Goldman Sachs International [2998 All ER D 630 and 2000 1 WLR 173] the plaintiff purchased a company in Norway from Jotun A.S. The defendant Goldman Sachs was an adviser to Jotun. The plaintiff commenced proceedings in England against Goldman Sachs claiming damages for negligent misstatement. The defendant applied for and was granted a stay of the proceedings until after the determination of arbitration proceedings which the plaintiff has commenced in Norway against Jotun. In the High Court, Moore-Brick J., granted the stay, stating the following:

“since the court's jurisdiction to stay proceedings is discretionary and the circumstances in which an application for a stay may be made almost infinitely variable, I find it difficult to accept (the plaintiffs) submission that it would never be proper for the court to grant a stay of an action pending the outcome of proceedings by the plaintiff against some other person in arbitration or before a foreign court. I do accept, however that such a step should only be taken if there are very strong reasons for doing so and the benefits which are likely to result from doing so clearly outweigh any disadvantage to the plaintiff. Ultimately however it must be a matter for the court to consider the circumstances of the case before it and come to its own conclusion.”

109. The decision was upheld.

110. In the Court of Appeal the plaintiffs submitted that upholding the stay would open the door to a flood of applications and would “give a charter to evasive and manipulative defendants”. Lord Bingham CJ rejected that submission and observed that “stays are only granted in cases of this kind in rare and compelling circumstances.”

111. In MAD Atelier International PV v Manes [2020] EWHC 1014 Bryan J. considered extensive case law on this subject and identified what he considered principles relevant to the exercise of the court's discretion:

“(1) The court has a discretion to stay an action pending the resolution of a claim pending in another forum, but a stay should only be granted in "rare and compelling circumstances" (quoting Reichhold)

The danger of inconsistent judgments is not a legitimate consideration amounting to exceptional circumstances and does not justify a stay in a case where the court has jurisdiction under Parliament and Council Regulation (EU) 1215/2012, especially exclusive jurisdiction.

(2) Exceptionally strong grounds” are required to justify a stay on case management grounds where the parties have conferred exclusive jurisdiction on the English court.

(3) The court’s power to stay proceedings cannot be used in a manner which is inconsistent with Council Regulation EC 44/2001 (the “Judgments Regulation”)

(4) A stay will not, at least in general, be appropriate if the other proceedings will not bind the parties to the action stayed or finally resolve all the issues in the case to be stayed, or the parties are not the same”.

112. In relation to cases where it is alleged that claims overlap Bryan J. said the following:

“I have already identified the applicable legal principles which were largely common ground, at section 5B above. A case management stay should only be granted in rare and compelling circumstances; exceptionally strong grounds are required to justify such a stay where the parties confer exclusive jurisdiction on the English court and such exceptional circumstances normally do not include the danger of inconsistent judgments. The danger of inconsistent judgments is not a legitimate consideration amounting to exceptional circumstances and does not justify a stay in a case where the court has jurisdiction under the BIR, especially exclusive jurisdiction. A stay will not, at least in general be appropriate if the other proceedings will not bind the parties to the action stayed or finally resolve all the issues in the case to be stayed, or the parties are not the same”.

113. In Athena Capital Fund v Holy See [2022] 1WLR 4570, the Court of Appeal made the following observations:

“The court has power to stay proceedings “where it thinks fit to do so”. This is part of its inherent jurisdiction, recognised by Section 49.3 of the Senior Courts Act 1981. The statute imposes no other express requirement which must be satisfied. This is a wide discretion. The test is simply what is required by the interests of justice in the particular case.

Such a stay may be permanent or temporary and may be imposed in a very wide variety of circumstances. Obvious examples include that proceedings may be stayed in order to await the decision of an appellate court in another case, or until a party complies with an order to provide security for costs, or to enable mediation to take place. Cases which speak of “rare and compelling circumstances” (or similar phrases) being necessary have nothing to do with these kinds of commonplace example. They would generally be concerned with stays which are being imposed in order to allow actions in other jurisdictions to proceed, the usual assumption being that the outcome of the foreign proceedings will or may render the proceedings here unnecessary”.

114. The court referred to Reichhold and continued “a claimant does not have an unfettered right to pursue a claim to judgment, subject only to considerations of abuse of process, on a timetable of its own choosing; rather, the court has power to control its own business and there may be circumstances in which it is in the interests of justice for the pursuit of a claim to be deferred until something else has happened”.

Principles to apply

115. Having considered these cases it seems to me the following principles should inform my approach to this case:

(1) The court has power pursuant O. 63A r. 5 to make directions as to the conduct of proceedings “as appears consistent for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.”

(2) The court has an inherent jurisdiction to order its business in a manner which serves to avoid or minimise waste of time and resources of the court and the parties (Kalix).

(3) The jurisdiction extends to the imposition of a stay pending the determination of proceedings before the same or another court or forum, such as an arbitration, which has jurisdiction to render a binding decision which will resolve the issues in dispute or will serve to reduce or minimise the risk of unnecessary and wasteful future time and cost which would otherwise burden the parties and the court.

(4) The imposition of a stay is discretionary and the court must balance the advantages to be gained by a stay against the disadvantage to a party resisting the stay.

(5) The starting principle is that the plaintiff is entitled to have its proceedings heard and determined in an expeditious manner, subject to ensuring that there is no disproportionate and unnecessary additional expense or drain on court time and resources ("Kalix").

(6) Proceedings may be stayed where the other proceedings concerning the same subject matter are at a more advanced stage “and where the factors that may be relevant in determining which proceedings ought to progress to trial favour the alternative jurisdiction”, (per Clarke J. citing Reichhold).

(7) The court will always have an interest in avoiding the risk of conflicting decisions concerning the same or substantially the same dispute and in minimising the risk of unnecessary waste of resources and costs for all concerned.

(8) The court must have regard to the extent to which it can truly be said that the first case or other case is likely to bind the case sought to be stayed.

(9) A stay will not in general be appropriate if the other proceedings will not bind the parties to the action sought to be stayed, let alone finally resolve all of the issues in the case to be stayed (Klockner Holdings GmbH v Klockner [2005] EWHC 1453).

(10) A stay pending the outcome of proceedings in a foreign court should only be granted if there are strong reasons for doing so and the likely benefits of such a stay clearly outweigh any disadvantages to the plaintiff (Reichhold) (Moore-Brick J as upheld by the Court of Appeal).

(11) Where the parties have agreed a choice of law and exclusive jurisdiction clause in favour of this court exceptionally strong grounds must be shown to warrant a stay pending the determination of a related case in another jurisdiction (MAD Atelier). In such a case a stay for jurisdictional reasons in favour of another jurisdiction would be wholly unjustified and unstateable. The application in this case is not for jurisdictional reasons.

116. In this case the defendants clearly acknowledge that this court is the appropriate forum for the Azex claims. They say only that it is in the interests of justice and to avoid unnecessary costs that the first in time proceedings, which are more advanced than the proceedings before this court, should be resolved first.

This case

117. The plaintiffs commenced the proceedings in England on foot of the Azex policies and the Azur policies at the same time. They had no reason not to believe that doing so in one action and in one forum was the appropriate expeditious and cost-efficient course to pursue. They claim that at the time when they commenced the English proceedings they did not have sight of all of the relevant policy documents and the all important choice of law and jurisdiction clauses. These were exhibited in the defendants’ application to challenge the jurisdiction of the English court. Faced with that information they adopted the appropriate response of consenting to a stay of the Azex proceedings and continuing only the Azur proceedings before the English court. They were then faced with no alternative but to commence these proceedings, unless they were to simply await the final outcome of the Azur operator proceedings before the English court, in a hope that this would resolve all matters in dispute.

118. When the plaintiffs requested confirmation that no jurisdiction challenge would be made in proceedings in Ireland if such proceedings were brought, no such confirmation was given. But this is not a jurisdiction challenge. It is a case management stay application. Nonetheless from this correspondence the plaintiffs were on notice that no confirmation or undertaking as to the intention of the defendants in relation to these proceedings would be forthcoming. They were given no indication as to whether or not the defendants would avail not only of substantive defences in the case but also of any interlocutory remedies as may be available to them in this jurisdiction, such as these stay applications. Therefore, from the outset of these proceedings the plaintiffs have been on notice of the prospect that an application of this nature might be brought.

119. In Kalix and in Avoncore the court was concerned with the management of a series of cases then pending before the same court. The court decided in each of those cases to refuse a stay but to make case management directions, including orders linking cases and providing for properly sequenced trials.

120. This case is very different. The court has no ability to control, case manage or in any way influence the manner in which the English proceedings will progress. Therefore the tools which were deployed by the court in Kalix or in Avoncore are available to this court.

121. This court should be reluctant to speculate as to the future timing or substantive outcome of proceedings in another jurisdiction. Nonetheless the parties submit that some measure of assessment of possible future outcomes is required when it comes to deciding this application. There is some force in that submission, and I cannot avoid a consideration of future scenarios. However, the challenge of doing so serves to underline the danger of deviating from the default principle that the plaintiffs are entitled to progress their case to trial without having to await the determination of the English proceedings.

122. The first aspect of the “future” is timing. A trial date of October 2026 has been fixed for the hearing of the Azur proceedings and 91 other cases. There is no certainty that the Azur claims directly relevant to the same equipment which is the subject matter of these proceedings will be heard and determined in that hearing. Despite a number of case management conferences, including the most recent such conference on 7 July 2025, the final list of issues for trial has not been settled, and the court has directed the parties to consider the impact on that case of the judgment of Butcher J. in separate lessor policy proceedings (see paragraphs 45-48 above). The decision as to whether the trial will be a trial of some or all out of a list of

62 issues or a full trial of all issues has yet to be made and a hearing on that question has been deferred to 27 and 28 October 2025.

123. If the trial runs its full course of 8-10 weeks in the Michaelmas term of 2026 a final judgment before the end of 2026 is unlikely. If the decision of the English court is appealed this court has no information as to how long any such could take to be heard and determined.

124. The defendants do not say that if they succeed in the defence of the Azur case they will pay out under the Azex contingent cover. I do not fault them for reserving their position on this and they are entitled to make any defence which they wish in due course. But it means that this very fundamental question cannot be shown to be necessarily resolved even on the defendants’ case if they win in England.

125. The defendants say that if the plaintiffs win the English case, they will have recovered all of their losses and there will be no necessity to pursue these proceedings under the direct or contingent cover. They say that this leaves only the possibility that the plaintiffs would seek to continue the proceedings before this court to pursue the claim for damages for delay in providing the indemnity and in paying out. They submit that in that event the case will be a much narrower case and much time and cost will be saved.

126. The above issues assume that there will be a full win or loss in the English case. Both sides recognise, as they must, that there could be a partial success for the plaintiffs in the Azur proceedings. The claims are made under a series of documents which, although very similar, are not all identical at each level of cover. Different considerations may apply as between aircraft on the one hand and engines on the other hand and depending on whether the items of claimed for are properly defined or listed within the different policies, or what findings of fact are made about events which occurred in 2022.

127. In the affidavits on this application and in submissions made at the hearing of the application the defendants submit that a number of issues of fact and law may “fall away” or become moot. But they are careful in the manner in which they phrase this description and they go no further, and make no concessions as to what defences they will plead.

128. The effect of the jurisdiction clause is that the defendants agreed to submit to the jurisdiction of the courts of the domicile of every insured to which they provided cover which is numerous parties. This may have costs consequences for the writers of such policies but is a feature of their decision when writing these policies to confer jurisdiction on the courts of domicile of their insureds. It was therefore their act of firstly writing policies which conferred jurisdiction on the courts of domicile of insured parties, now in diverse jurisdictions and secondly challenging the jurisdiction of the English court which has resulted in the defendants now facing proceedings in different jurisdictions. The plaintiffs cannot be faulted for this. They commenced their proceedings in one jurisdiction and were willing to submit their claims to the jurisdiction of the English court were it not for the stay application and challenge to the jurisdiction brought by the defendants.

129. It is noteworthy that the English court decided to hear the Azur claims notwithstanding the Russian law and jurisdiction clause. That decision was grounded on a finding that a fair or efficient trial in Russia would, in all the circumstances, not be achievable, a factor not relevant for the Irish jurisdiction. Nonetheless, it demonstrated a willingness of the English court to retain seisin of the case notwithstanding such a clause. I shall not speculate here as to whether the English court could of its own motion either at the trial or earlier have declined to hear the Azex claims by reason of the choice of law and jurisdiction clause. The important point is that the defendants invoked the clause and that is what has led to the stay of the Azex claims in the English proceedings and the commencement of these proceedings.

130. The defendants submit that this application is analogous to an application to the court for a trial of a preliminary issue. In such a case the court stays the prosecution of a case pending the determination of the preliminary issue. It is said that at the very least an outcome to the English case will result in findings on facts, and possibly points of law, albeit not Irish law, which will inform and shorten the trial of this case. They say that where a preliminary issue is tried, there is always a risk that the result will not end the case and that the full trial will follow with all the attendant further time and cost.

131. That is a valid and interesting comparison. But in those cases the same court, while deferring or staying the action pending the determination of a preliminary issue, retains control of the process and does so with visibility as to the progress of the preliminary issue and its timing and can monitor that progress.

132. In this case the court is being invited to stay these proceedings pending the determination of a case in another jurisdiction where both law and procedure is different and where this court has no control or influence over the timing of those proceedings. Therefore, there is considerable uncertainty both as to the timing of the determination of proceedings and the precise extent to which the result will bind the parties in this case.

Conclusion

133. The starting position is that the plaintiffs are entitled to have their case heard and determined expeditiously.

134. The court is required to weigh the balance between the advantages of a stay and any hardship imposed on a plaintiff.

135. As in all discretionary matters, the conduct of the parties to date is one of the factors to be taken into account.

136. The plaintiffs decided to pursue their claims on foot of all of the policies in this case in one single proceeding before the English court. They did so at the time when they claim that they did not have all of the relevant policy documents and therefore did not have sight of the choice of law and jurisdiction clauses. They are suing 24 defendants, which have their registered offices and domiciles spread over 11 jurisdictions. The commencement of one action in one place, namely England, was a reasonable approach and this Court has no reason to believe that, in doing so, the plaintiffs did not believe that the action could be pursued and resolved in one proceeding before the English court.

137. The defendants were entitled to invoke the choice of law and jurisdiction clause and the plaintiffs accepted this in relation to at least the Azex claims when they consented to the stay of that part of the English proceedings.

138. The defendants now complain that they should not be compelled to incur the time and cost of defending claims relating to the same or substantially the same losses in two jurisdictions. But the plaintiffs were entitled to and did set out in the first instance to progress all of their claims in one place. That the defendants now face the cost and burden of defending proceedings arising from closely related events in two jurisdictions, but which are governed by different laws, namely Irish and Russian law respectively, is a function of two things. Firstly, the decision of the defendants to enter into policy contracts which provide for choice of law and jurisdiction clauses in favour of the domicile of the insured, where ever they may be located. Secondly, their decision, instead of meeting the cases in the single forum of the English court, to challenge the jurisdiction of the English court and insist that the claims be litigated in separate jurisdictions.

139. In making these decisions the defendants knew that they would be facing cases in different jurisdictions to be decided under the laws of different countries.

140. Many of the substantive issues in these proceedings overlap with the issues before the English court. They relate to the same equipment. They arise from the same events, namely the invasion of Ukraine and the subsequent actions of the Russian government and sanctions and restrictions imposed by states internationally.

141. Many of the issues relate to the interpretation of the documents and the application of the different governing laws to those documents. It is by no means clear that a decision of the English court informed by considerations of Russian law will bind the parties to the Azex policies and determine the plaintiffs’ claims here as a matter of Irish law.

142. The analogy of a preliminary issue put forward by the defendants is interesting. However, a critical difference is that in such a procedure this Court retains control over the trial of the preliminary issue between the same parties and the decision made on such an issue, either way, is conclusively binding on those parties.

143. There are undoubtedly a number of issues which overlap between these proceedings and the English proceedings. There is therefore some measure of risk that by refusing a stay the parties will incur duplicate costs which may otherwise be avoided. There is also a prospect that the judgment of the English court will, if it is made first, which is not certain, inform or influence a final resolution of the Azex claims whether that resolution is by a trial and judgment or by settlement between the parties, or at the very least will narrow issues to be resolved between the parties. But it cannot be said that it will finally resolve all issues in these proceedings.

144. A stay in the terms sought would leave the plaintiffs waiting for an indeterminate time for a final judgment in a case in respect of which it cannot be said that the outcome will bind all parties in these proceedings and resolve all the issues in dispute.

145. Insofar as it was the plaintiffs’ choice to bring these proceedings after consenting to the stay of the English proceedings, this was a decision they were entitled to make including the

decision to incur and expose themselves to risk of costs, including both their own and potentially other costs. The defendants could have elected to meet the case entirely in that single forum, but chose not to do so, thereby leaving the plaintiffs with no option as regards their rights under the Azex policies than to commence these proceedings. The plaintiffs have pursued that option and are now being put to the additional cost of doing so which they have decided, as they are entitled to, to incur. The hardship for the defendants of incurring costs in two jurisdictions is therefore of their own making. It does not outweigh the hardship and prejudice which the plaintiffs will suffer if the applications are granted.

146. This case relates to two aircraft and eleven engines. I do not underestimate the complexity of these cases and the amounts of time and costs they impose on the parties and the court, in the latter case absorbing scarce resources. But on one reading of the Statement of Claim and the affidavits exchanged on this application, and in the absence of any assistance from the parties – for which I do not fault them – as to how long the case will take, I am not persuaded that the extent of the imposition on the court’s time will be such that this factor outweighs the potential injustice caused by the stay sought.

147. For all these reasons I have concluded that the appropriate course is to refuse these applications.

Strike out application

148. In their notice of motion the All Risk defendants sought in the alternative an order striking out the proceedings pursuant to O. 19, r. 28 of the Rules of the Superior Courts. In submissions these defendants made it clear that this was in substance only an "alternative" relief sought. They also confirmed that the application to strike out proceedings was grounded on pre-maturity only. Therefore if they obtain a strike out the plaintiffs would not be precluded from bringing new proceedings in the future.

149. The submission that the claims are premature is rooted principally in the question of whether the plaintiffs can pursue a claim for contingent cover before there has been a determination in the English proceedings of the defendants’ liability under the Azur operator policy and the reinsurance policies. A second element is the submission that if the plaintiffs succeed in England they will recover all or substantially all of their losses.

150. The question of when the contingent cover applies is a matter of construction of the Azex policy and in these proceedings will be resolved by reference to Irish law. The plaintiffs claim they are entitled to rely on the contingent cover in the events which have already arisen, namely that they have made their claims under the Azur policies and not received indemnity or payment. It is true that if the plaintiffs were to succeed under the Azur policies, their claim under the contingent cover provisions of the Azex policies would in all likelihood become moot. However, the defendants themselves say that this does not necessarily follow and, although they suggest that that a determination in the English proceedings would dispose of that question, they declined to confirm that the contingent cover would pay if the operator policy claims fail.

151. All parties urged the court to defer to the trial of the action such fundamental decisions as the question of when contingent cover should itself respond. Yet the defendants invited the court on the hearing of this application to adopt a view that this matter was capable of being resolved by reference only to the documents, and without any reference to other documents which might become available on discovery or any other evidence which might be adduced at the trial, whether as to market practice or otherwise. They submit that revisions to O. 19, r. 28 would permit the court to conduct a substantive examination of those documents and resolve such questions by reference only to the documents.

152. The defendants also submit that the court ought to be capable of making a determination now by reference to the language of the policy documents themselves, as to whether the direct cover provisions of the All Risks policy apply in circumstances where the equipment is in the possession of a sublessee. Some of the direct cover clauses relied on by the plaintiffs refer to equipment “operated by the insured, which are owned by the insured, or for which the insured has agreed to be responsible”. Other clauses refer only to equipment “whilst in the care, custody or control of the insured, whilst as the premises of others… or whilst in transit…”. Even a cursory read of the numerous clauses opened at this application shows that a determination of this question is not appropriate on this interlocutory application. At a trial the court will be concerned with an examination and construction of all the documents and evidence both as to their context and applicability and, it is said, of market practice. I am not persuaded that any part of the plaintiffs’ claims are bound to fail or have no reasonable chance of succeeding and I shall refuse the application for an order striking out the proceedings.

153. The applications will therefore be dismissed.