Supreme Court dismisses application to re-enter dismissed appeal and admit new evidence due to finality of judgment.

THE SUPREME COURT

Appeal No. 140/01

Fennelly J.

McKechnie J.

Laffoy J.

BETWEEN

SUPERHOLDINGS HOLDINGS Plc

SUPERWOOD LIMITED

SUPERWOOD EXPORTS LIMITED

SUPERWOOD INTERNATIONAL LIMITED

SUPERCHIP LIMITED

and SUPERWOOD (U.K.) LIMITED

Appellants/Plaintiffs

-And-

SUN ALLIANCE AND LONDON INSURANCE Plc

Trading as SUN ALLIANCE INSURANCE GROUP

PRUDENTIAL ASSURANCE COMPANY LIMITED CHURCH AND GENERAL INSURANCE COMPANY LIMITED

and RAYMOND P. MCGOVERN AS LLOYDS UNDERWRITERS SOLE REPRESENTATIVE

REPUBLIC OF IRELAND

Respondents/Defendants

JUDGMENT of Mr. Justice Fennelly delivered the 21st day of February 2014.

1. The Court has before it an application which seeks a number of orders in respect of an appeal, in particular that the appeal be re-

entered and to admit new evidence, in the above named proceedings, although that appeal was dismissed by order of this Court on

15th March 2004. These entire proceedings, it has to be said, have a truly extraordinary and unfortunate history.

2. Nonetheless, the present application needs to be explained in the context of this hugely protracted litigation. It will then be

necessary to consider the orders sought in the Notice of Motion.

3. In the account now given, the appellants will be described under the general title of Superwood.

4. The history commences in 1987 with a fire at a premises owned by Superwood in Bray, County Wicklow. Superwood had insurance

policies for consequential loss. It claimed the total resulting loss was in excess of IR£2 million and made claims under its insurance

policies. The two sets of insurers repudiated liability at an early stage, in reliance on a condition in the policy and on the ground of

fraud, in effect that the claim had been so exaggerated that it could not have been made honestly. Superwood initiated High Court

proceedings against the insurers on 28th June 1989 seeking damages for wrongful repudiation of the insurance policies.

5. The resulting trial in the High Court took place over 116 days. O'Hanlon J delivered judgment on the 13th, 14th and 15th August

and the 12th November, 1991, dismissing Superwood’s claim with costs. The judgment ran to some 423 pages and the transcripts to

8,500 pages. The trial judge had stated during the course of the trial that he would determine the issue of liability first, leaving over

his decision on quantum. The judge found that Superwood had committed such extensive breaches of the terms of the insurance

policies as to lead inexorably to a finding of fraud. In view of his finding that Superwood had been fraudulent any insurance benefit

was therefore forfeited and it was not necessary to assess damages.

6. Superwood appealed the judgment of the High Court to the Supreme Court, where the hearing took 16 days. Denham J. delivered

the principal judgment of a unanimous court. The appeal was allowed and the matter remitted to the High court for a re-trial. See:

Superwood Holdings plc v Sun Alliance & London Insurances plc [1995] 3 IR 303. Denham J held that the insurers were not entitled to

rely on a particular condition (Condition 4) of the policy and that, since this provided the only basis for the finding of fraud, that

finding could not stand. The Supreme Court remitted the claim to the High Court “to determine what the losses were arising after the

fire and what percentage of those losses were attributable to the fire; and such matters as are relevant and in issue.” (per Denham J,

at page 361).

7. Following the Supreme Court decision, Superwood brought a motion for interim payment of damages and costs, which was struck

out. This application was based on the argument that, by virtue of it’s ruling, the Supreme Court had allegedly recognised a clear

minimum of liability of the insurers to Superwood.

8. A consent order was made in the High Court on 16th July 1996 providing for a two-phased structure for the hearing of the appeal.

The losses attributed to the fire would be quantified first followed by an assessment of the losses arising out of the failure of the

insurers to pay that money. In November 1996 the judge for the re-trial, Smyth J, ruled that it would not follow this two phased

structure but proceeded to hear the case in a composite manner. He permitted the first three insurers to make lodgements, which

Superwood could accept within 3 days. Superwood appealed to the Supreme Court on this matter but its appeal was rejected. It was

allowed a further 3 days in which to accept the lodgements. The first 3 insurers made a lodgement of IR£3,152,761 and it would

appear that the 4th insurer made a lodgement of IR£1,650,000.

9. In December 1996 and March 1997 Superwood brought a motion to the court for permission to adduce further evidence. This was

rejected by the High Court and subsequently rejected by the Supreme Court in March of 1997.

10. During the course of the trial and after in May 1998 the High Court refused an application by Superwood to allow them to accept

the lodgement of the 4th insurer. In June 1998 the Supreme Court allowed Superwood’s appeal in relation to this matter. Superwood

then accepted the lodgement of the 4th insurer, and settled its case for an added sum of IR£1,420,000.

11. The High Court re-trial began on the 19th February 1998 and lasted 281 days. It was the longest civil hearing in the history of the

state. It generated a transcript of 41,000 pages. On the 4th-6th April 2001 the High Court delivered its judgment orally. It found the

first three insurers liable to Superwood in the total sum of IR£150,000 approximately, plus interest. Thus, Superwood had failed to

beat the lodgement. This meant that Superwood was entitled to its retrial costs up to the date of the lodgement but that the first

three insurers were entitled to their costs from the date of their lodgement. The High Court granted an Mareva injunction freezing

Superwood’s assets up to IR£5,000,000.

12. Superwood appealed the decision of the High Court as well as the injunction on the 16th May, 2001 in a notice of appeal

containing 336 separate grounds. In December 2001 the first three insurers applied to the Supreme Court for an order for security for

costs of the appeal. The Court on 12th April 2002 ordered that security for costs be provided. The Master of the High Court

determined the amount of the security in the sum of €1,593,102.56.

13. Superwood brought appeals to the High Court and to this Court in respect of the Master’s order. On 17th October 2003, this Court

dismissed an application by Superwood to have the Master’s order set aside and in lieu thereof that the grounds of appeal be abridged

so that a short appeal could be heard. However, Superwood was given a further period of three months to furnish the security.

14. Superwood was unable to provide that security.

15. The respondents on 26th January 2004, brought a motion before this Court for an order that the appeal of Superwood be

dismissed or in the alternative struck out for failure to provide security for costs as ordered. That motion was heard on 13th February

2004. Judgment was delivered by Keane C.J. on 15th March 2004, the appeal was dismissed. Murray and Hardiman JJ concurred. See:

Superwood Holdings plc. v. Sun Alliance plc. (No. 3) [2004] 2 IR 407.

16. Keane C.J. commenced by stating:

“In an application of this nature, where the result, if it were granted, would be to preclude the plaintiffs from exhausting

their final remedy in the proceedings by way of an appeal to this court without any disposition of the appeal on its merits

and in law, the court must be satisfied, not merely that it has jurisdiction to make the order sought where that jurisdiction

is challenged as it is in the present case, but also that it is an appropriate case in which to grant relief of an admittedly

drastic nature and that any necessary preconditions to the exercise by the court of its jurisdiction, presuming it to exist,

have been met.”

17. The Chief Justice reviewed the history of the litigation. He referred to the question whether the Court had jurisdiction to dismiss

an appeal on the ground of failure to comply with an order to provide security for costs. He cited the High Court decision in Lough

Neagh Exploration Ltd. –v- Morrice & Ors [1999] 4 IR 515, which he said was “to the effect that, in circumstances in which there is

no reasonable prospect that the security is going to be given, the court has an inherent jurisdiction to make an order dismissing the

proceedings.”

18. The Chief Justice concluded:

“It is beyond argument that the decision [in the Lough Neagh case] recognises that there is an inherent jurisdiction in the

court to dismiss proceedings by a company which has been ordered to provide security for costs under s. 390 of the 1963

Act where the security has not been provided. It would be remarkable if the court did not enjoy such a jurisdiction, since

otherwise proceedings might remain indefinitely in being contrary to the general principle of public policy that litigation

must terminate sooner or later: interest rei publicae ut sit finis litium. In the case of corporate bodies, such as the

respondents, the indefinite continuance in being of the litigation would mean that any contingent liability to which they

might be exposed might have to be reflected in their reports and accounts year after year. It would be surprising if the

courts, which have asserted a jurisdiction in the interests of justice to strike out proceedings at a relatively early stage

because they are an abuse of the court's process or disclose no cause of action or to strike out a party's defence where

an order for discovery has not been complied with, would not enjoy by analogy a corresponding jurisdiction to strike out

proceedings where its orders in relation to security for costs have not been obeyed. The inherent jurisdiction of the

courts in these areas is, in my view, necessary for the proper administration of justice and is not in any way inconsistent

with the constitutional right of persons of access to the courts and – in the case of unsuccessful parties – the right to

appeal from the High Court to this court in every case where the appeal is not excluded by law.”

19. Turning to the facts of the appeal in the instant case, the Chief Justice observed:

“In the present case, the original order for security for costs was made nearly two years ago. In the many affidavits that

have been filed on behalf of the plaintiffs in the various motions which have come before this court since then, there has

been no indication that there has at any stage been any realistic prospect that the plaintiffs would succeed in raising the

sum of €1.6 million approximately which is the amount of the security.”

20. The final outcome appears from the final passage of the judgment;

“I am satisfied that the history of these proceedings since the plaintiffs were required to furnish security for costs make it

clear beyond doubt that there is no reasonable prospect that the plaintiffs will furnish the sum required. If the plaintiffs

had placed before the court any evidence of a realistic programme under which the necessary monies would be raised

within a reasonable time, I would have been disposed to give them some further period of time within which to raise the

monies before finally striking out the appeal. They have had ample time in which to bring before the court such evidence

but have not done so. Instead, they have chosen to bring a number of different applications to the court in a futile

attempt to re-open the matters determined in the judgment of this court of the 12th April, 2002 requiring the provision of

security or to reduce the amount of the security ordered. In these circumstances, I am satisfied that there is no

alternative to striking out the plaintiffs' appeal. I would also dismiss the application by the plaintiffs for orders that they

have already furnished adequate security, that they should be allowed to amend their notice of appeal and that they

should be permitted an extension of time to file a new notice of appeal.”

21. It should be mentioned also that Superwood applied by way of petition against Ireland to the European court of Human Rights.

See: Superwood Holdings plc & others v Ireland, Application No. 7812/04, judgment of 8th September 2011. The findings of the Court

related to delay in civil proceedings, holding that there had been a violation of the reasonable time requirement of Article 6 § 1 of the

Convention and ordered the Irish State to pay €3,800 plus interest to Superwood. The remainder of the claim was dismissed

unanimously.

22. On 27th August 2013, Superwood issued a Notice of Motion to this Court which came on for hearing on 25th October 2013. That

motions sought relief under twenty five headings, commencing with one of a number of applications to be permitted to adduce new

evidence. Many of the reliefs were simply of a kind that are incapable of being granted, such as an order for “Execution of the FINAL

judgment of the European Court of Human Rights…” and various other orders of a similar kind.

23. The most fundamental problem about that Notice of Motion was, of course, that it was brought in an appeal which had been

dismissed and which is no longer pending before the court. The Notice of Motion contained one application that the order of 15th

March 2004 be vacated “because the Supreme Court erred in fact in striking out the appeal.”

24. When this difficulty was pointed out, counsel sought liberty to amend the Notice of Motion. In the event, an entirely new Notice

of Motion was substituted with the consent of the respondents for the first one. The appellant’s current motion was moved on 6th

December 2013. It seeks:

a. Re entering the appeal to this Honourable Court in the above mentioned proceedings;

b. An order enabling the Plaintiff's to amend the Original Notice of Motion to reflect new evidence which has lately

emerged which greatly alters the gravamen or nucleus of the original appeal in accordance with the issues raised in the

supplemental affidavit grounding this application in accordance with the issues raised in the supplemental Affidavit

grounding this application in accordance with Order 58 rule 6 of the Superior Court Rules;

c. An order in accordance with Order 58 rule 8 to receive further evidence and make such directions as this Honourable

Court shall deem correct in accordance therewith;

d. if necessary an order in accordance with Order 28 rule 11 addressing a misunderstanding which occurred in the

judgement of the learned High Court Judge’s decision and which has now emerged whereby he addressed the question of

mitigation which was not part of his remit;

e. and such further order as this Honourable Court shall deem correct:

f. and such further order concerning costs as this Honourable Court deem correct.

25. It is immediately apparent that every one of the material headings from a to d is simply misconceived. The appeal of Superwood

was dismissed by a final order of this court made on 15th March 2004. There is no longer any appeal pending before the court. It is

simply impossible to ask that the appeal be re-entered. For precisely the same reasons, there is no jurisdiction to entertain an

application for the admission of new evidence, which is sought at paragraphs b and c. The power of the Court in Order 58, rule 8 of

the Rules of the Superior Courts to admit “further evidence” is preceded and governed by the words: “Upon any appeal….” That

power simply does not arise when there is no longer an appeal before the court, as in this case. The application at paragraph d to be

allowed to address “a misunderstanding which occurred in the judgement...” is also, axiomatically, a matter which can be considered

only when the Court is considering an appeal.

26. For these reasons alone, therefore, it is clear that the Notice of Motion cannot be maintained and must be dismissed. The result

follows inevitably from the terms of the Notice of Motion itself, combined with the insurmountable obstacle of the order of this court

of 15th March 2004. It should, nonetheless, be added that Article 34, section 4(6) of the Constitution provides:

“The decision of the Supreme Court shall in all cases be final and conclusive.”

27. This is not to say that there are no circumstances in which even a final decision of the Supreme Court may be set aside. Having

regard to the constitutional provision and the principles underlying it, however, such relief can be granted only in very special and

unusual circumstances. If Superwood were to allege, for example, that the judgment of the High Court or of this Court had been

procured by fraud, it would be necessary to commence separate proceedings to have the relevant judgment set aside. The judgments

in Re Greendale Developments Ltd. (No 3)) [2000] 2 I.R. 514 discuss the rare and unusual circumstances in which this Court will

entertain an application to set aside one of its own final orders. No application of the sort has been made in the present proceeding

and it is not necessary to discuss the matter further.

28. For all the foregoing reasons, the Court will dismiss the application.