4.  The applicant companies are collectively described as “Superwood”. 5.  In October 1987 a fire occurred for which Superwood claimed 2,000,000 Irish pounds (“IR£”) from their insurers. The latter denied liability arguing that Superwood’s claim was so grossly exaggerated as to be fraudulent. On 28 June 1989 Superwood took proceedings against the insurers seeking damages for wrongful repudiation. 6.  On 1 July 1989 the High Court hearing began. The trial took place over 116 hearing days and was one of the longest trials in Irish civil litigation history (the transcript exceeded 8500 pages). During the trial (on 1 May 1990) the trial judge directed that liability would be determined first and quantum thereafter, if relevant. 7.  Some weeks after the end of the trial, on 13, 14 and 15 August 1991 the High Court delivered its judgment finding Superwood’s claim to be fraudulent. Any insurance benefit was therefore forfeited and an assessment of damages was moot. On 12 November 1991 the High Court ordered the dismissal of the action. 8.  On 12 December 1991 Superwood filed a notice of appeal to the Supreme Court with 56 grounds of appeal. Superwood lodged Books of Appeal on 15 July 1992 and a certificate of readiness in October 1992. In December 1992 Superwood applied for an early hearing date, which application was adjourned six times. Superwood’s detailed appeal submissions were lodged in July 1993. Following two further adjournments, the insurer’s appeal submissions were lodged in January 1994. In March 1994 the Supreme Court heard and allowed Superwood’s request to amend its notice of appeal. Following the Supreme Court’s orders to file submissions as to the transcripts to be relied upon for the appeal, then to file abridged written submissions and then to file skeleton submissions, on 9 December 1994 the Supreme Court set a hearing date. 9.  Following a hearing of 16 days during February and March 1995, on 27 June 1995 the Supreme Court delivered its judgment unanimously upholding the appeal and finding, inter alia, that the trial judge had erred in holding that the evidence supported a finding that Superwood’s claim was fraudulent. The case was remitted to the High Court to determine the losses attributable to the fire and any other relevant issues. 10.  In March 1996 Superwood’s motion for interim payment of damages (based on an alleged recognition by the Supreme Court of clear minimum liability of the insurers to Superwood) and of costs was struck out. 11.  On 16 July 1996 the High Court, on Superwood’s request, gave directions for the re-trial and made a consent order that the re-trial would first quantify the loss attributable to the fire (the insurance money) and then any losses arising out of a failure by the insurers to pay that money. 12.  On 25 July 1996 the High Court set the case down for re-trial on 19 November 1996. 13.  On 25 October 1996 the first three insurers applied to extend time to make lodgements into court. 14.  On 11 November 1996 the re-trial judge ruled that the re-trial would not follow the two-phased structure envisaged by the consent order of 16 July 1996 but that it would be a composite trial. On 12 November he allowed the first three insurers to make lodgements: Superwood could accept the lodgements within 3 days. On 18 November the Supreme Court rejected Superwood’s appeal: it could accept the lodgements within a further 3 days. On 19 November 1996 lodgements were made by the first three insurers (IR£ 3,152,761). It would appear that the fourth insurer also made a lodgement (IR£ 1,650,000) at this point. 15.  In December 1996 and March 1997 the High Court refused Superwood’s motion to adduce further evidence and the Supreme Court rejected its appeal on 18 March 1997. 16.  The High Court re-trial began in 19 February 1997 and ended, after 281 trial days, on 3 March 2000. It generated 41,000 pages of transcript.
The re-trial was adjourned from 31 July 1997 to 17 February 1998. The trial judge, diagnosed with cancer, underwent surgery in November 1997, intensive treatment in December 1997 and some treatment continued until May 1998. The re-trial judge informed the parties of his illness and treatment on 5 March 1998 giving them an opportunity to apply to disbar him. Superwood claimed that their Counsel requested the re-trial judge in his chambers to disbar himself in March 1998 but that he did not do so. They also claimed that the re-trial judge did not sit for all potential hearing dates from March to May 1998. In July 1998 the High Court judge submitted, at the request of Superwood, to a medical examination which concluded as to his fitness to preside the trial. While that report was intended to be sent sealed via Superwood’s solicitors to Superwood’s insurers (to assist their taking out insurance for litigation delay), on the judge’s instructions it was sent to the Central Office of the High Court where it remained sealed. A copy was later made available to the Supreme Court. Superwood first had sight of this report when the Government furnished it to this Court.
In May 1998 (also during the re-trial) the High Court refused an extension of time to Superwood to accept the lodgement of the fourth insurer. On 21 June 1998 the Supreme Court allowed Superwood’s appeal. Superwood then accepted the fourth insurer’s lodgement and settled its case against that insurer for an added sum of approximately IR£ 1,420,000.00.
In January 1999 Superwood’s counsel withdrew from the case. Superwood continued to be represented by a number of solicitors. 17.  On 4-6 April 2001 the High Court delivered its judgment (872 pages exhibiting 1525 indexed documents). The High Court found the first three insurers liable to Superwood in the total sum of about IR£ 150,000 (plus interest). Superwood was therefore entitled to its re-trial costs only up to the date of the lodgements and, consistently, the first three insurers were entitled to their costs from the date of their lodgements. The High Court also granted an injunction freezing Superwood’s assets up to the value of IR£ 5,000,000 to cover the estimated legal costs of the insurers. 18.  On 16 May 2001 Superwood appealed the High Court judgment to the Supreme Court invoking 336 separate grounds of appeal. Later that month Superwood also appealed against the injunction. 19.  On 21 December 2001 the first three insurers applied to the Supreme Court for an order for security for costs as regards their defence of the appeal. On 12 April 2002 the Supreme Court ordered the payment by Superwood of security for costs (section 390(1) of the Companies Act 1963) and stayed the substantive appeal pending payment. The Supreme Court noted that the issue on re-trial was quantum, not liability, and that an arguable right of appeal existed as to quantum. However, an order for security for costs was warranted since Superwood comprised limited liability companies which had pursued expensive and protracted litigation exposing the insurers to a substantial financial burden in which Superwood’s claim to substantial damages had been rejected. 20.  On 30 October 2002 and 26 March 2006, respectively, the Master of the High Court determined the amount of security to be lodged (about 1,600,000 euros, “EUR”) and the High Court dismissed Superwood’s appeal. The High Court recorded that Superwood’s claim amounted to approximately IR£92,000,000. From October 2003 a Senior Counsel joined Superwood’s legal team. On 17 October 2003 the Supreme Court dismissed Superwood’s appeal and ordered that security for costs be paid into court within three months. On 19 December 2003 and on 16 and 23 January 2004 the Supreme Court refused Superwood’s applications for an extension of the time to furnish security for costs, for the appeal to be heard in two stages and for it to be allowed to substitute a new notice of appeal. 21.  Further to the application of the first three insurers (February 2004), on 15 March 2004 the Supreme Court struck out Superwood’s appeal for failure to furnish security for costs. It also dismissed Superwood’s further applications, inter alia, for leave to amend its notice of appeal or to file a new notice. The Supreme Court considered that it was within its inherent jurisdiction to dismiss proceedings by a company which had failed to provide security for costs ordered in the interests of the proper administration of justice. This was not inconsistent with the constitutional right of access to an appeal. Had Superwood made some realistic proposal to furnish security for costs, the Supreme Court might have been disposed to consider it. However, Superwood choose instead to bring numerous applications in a futile attempt to re-open the security for costs matter already determined by the Supreme Court in April 2002. In its judgment, the Supreme Court referred to the claim as amounting to IR£92,000,000. 22. Superwood maintained that the taxation of various awards of costs in its favour has not been completed. It would appear that the taxing master disallowed part of its claim and, when Superwood appealed this to the High Court, the High Court made a security for costs order against Superwood. Superwood has not made this payment to date. 23.  On 5 January 2004 Superwood issued proceedings against Ireland and the Attorney General seeking to challenge the constitutionality of section 390(1) of the Companies Act 1963. By judgment and order of 5 and 13 July 2005, respectively, that action was dismissed as disclosing no reasonable cause of action.