The Court of Appeal has ordered Allianz Public Limited Company to disclose documents about its refusal to indemnify Bidcon Construction Limited after storm damage to a leisure centre roof. It allowed Mythen Construction Limited’s appeal against a High Court discovery ruling, but did not decide whether Allianz was obliged to provide cover or whether Mythen can ultimately recover from it.
Mythen was the main contractor for a swimming pool and leisure centre in New Ross, Co. Wexford. It had appointed Bidcon to build the roof, which was extensively damaged in a storm in February 2014. Mythen says it suffered losses of €1,803,843.55.
Bidcon held a construction insurance policy written by Allianz. In September 2014, Allianz notified Bidcon’s brokers that it considered the policy exclusions applied and declined indemnity. Mythen later obtained judgment against Bidcon for €1,803,843.55 plus costs. It then brought proceedings against Allianz, relying on section 62 of the Civil Liability Act 1961 and seeking, among other relief, indemnity or payment of that sum.
Allianz disputes that Mythen has a cause of action against it and says Bidcon’s failure to invoke the policy’s arbitration clause within 12 months meant any claim was abandoned. Those issues were not determined in this appeal.
Mythen sought the policy and communications between Allianz and Bidcon, its legal advisers and the company’s liquidator concerning the refusal of cover. Allianz agreed to disclose the policy and its declinature letter, but resisted the remaining documents. The High Court refused further discovery in February 2019.
The Court of Appeal held that the requested documents were relevant to Mythen’s pleaded claim. It said the discovery application was not the place to resolve disputed legal questions about section 62 or to decide whether Mythen’s claim would succeed. Allianz had not sought to have the claim dismissed or to have a preliminary issue determined.
The court stressed that it was deciding discovery only. It expressed no view on the correct meaning of section 62, the validity of Allianz’s coverage decision, or the effect of the arbitration clause. It set aside the High Court’s refusal and directed Allianz to make discovery on oath of the requested communications and documents. The affidavit was to be sworn by Allianz’s company secretary, with six weeks allowed. The High Court costs order in Allianz’s favour was also set aside; the court proposed that Mythen receive the costs of the discovery application and appeal, subject to written submissions from Allianz within 14 days.