Supreme Court: Price Waterhouse Cooper granted leave to appeal order for particulars in Quinn Insurance case
Price Waterhouse Cooper have been granted leave to appeal the decision of the Court of Appeal, which had limited the extent of particulars to be provided by Quinn Insurance Limited (Under Administration) in their action for damages. In proceedings involving an allegation of up to €800m in damages suffered by QIL, Justice O’Donnell was satisfied that the case presented a question of general public importance which satisfied the constitutional test to be heard by the Supreme Court.
In 2010 the High Court appointed administrators to QIL.
The business of QIL has since been sold by the administrators and Justice O’Donnell explained that the remaining asset of the company is the entitlement to bring the present proceedings – in which QIL claim up to €800m in damages.
In the High Court in May 2015, Justice Costello directed that QIL provide full and better particulars in respect of the underwriting years 2005 - 8.
PWC were the auditors of QIL during the relevant years.
The technical provisions referred to in the request for particulars are in substance the estimate made by an insurance company as to its future liabilities. This is required to be produced with the assistance of actuarial advice.
In this case QIL retained an international firm of actuaries Milliman’s; when the company went into administration the administrators retained the services of Mazars to carry out a review of the technical provisions.
Mazars concluded that on an overall basis the technical provisions had been understated in each of the relevant years, with it is now alleged, a consequence that QIL engaged in certain transactions with associated businesses which it would not have done, and failed to remedy its financial position when that was possible – as such, QIL allegedly suffered up to €800 million of damage.
In March 2017, the Court of Appeal reversed the decision of the High Court – Justice Hogan stating that “viewing the matter both from the standpoint both of practice and existing authority it would be hard to see how requests of this kind could be accommodated within the ordinary parameters of a notice for particulars”
PWC sought leave to appeal to the Supreme Court.
It was important to note from the outset that the case was a complex one which would last approximately a year, and one which would involve the discovery of millions of documents.
In considering the constitutional test of whether the appeal involved a matter of general public importance – the Supreme Court stated that it was first necessary to establish that the point be stateable, and second that it should normally have the capacity to be applicable to cases other than that under consideration.
According to Justice O’Donnell the conditions were not exhaustive and that it was possible that the subject matter of the case may itself be of public importance.
Furthermore, the Constitution does not exclude interlocutory appeals such as this from the jurisdiction of the Supreme Court, or impose any restriction on them: “where an appeal seeks to challenge the application of the High Court or Court of Appeal of well established principles of law which are not themselves the subject of challenge, as this appeal does it will also be rare that this Court could be persuaded to grant leave to appeal” (e.g. DPP v S IESCDET 134).
Acknowledging that this application faced “significant hurdles”, Justice O’ Donnell was satisfied that the case presented an “issue in a particularly clear way, given the scale of the litigation, and the engagement of the parties”.
Justice O’Donnell stated: “Although the case law on ordering further particulars is well known, the application of the principles set out in the case law has led to diametrically opposed results on this issue between the High Court on the one hand and the Court of Appeal on the other… while acknowledging the view advanced in the High Court case as to the necessity for more detailed particulars in complex commercial litigation, the argument in the Court of Appeal ultimately appears to have resolved itself to the application of principles in simple personal injuries actions”.
This suggested “a degree of uncertainty as to the application of principles relating to the delivering of further particulars”
“The distinction between matters which require to be pleaded in advance and those which are matters of evidence may be easy to state, but as this case shows is more difficult to apply. A principle may be generally accepted but stated at such a level of generality that the application of the principle in a particular type of case may itself be a matter of general public importance” since the issue of particularisation affects all litigation and is therefore of general application.
As such, the proper application of the principles relating to the ordering of further particulars was held to be a matter of general public importance.
The outcome of this case could clarify the distinction between evidence and further required particularisation of proceedings.
Accordingly, the Supreme Court granted leave to appeal the decision of the Court of Appeal.
- by Seosamh Gráinséir for Irish Legal News