The High Court has refused an application by two solicitors to serve 43 written questions on their insurer and another firm of solicitors in an ongoing dispute over professional indemnity cover.
Mr Justice McDermott ruled on 8 November 2016 that the proposed interrogatories were not necessary to resolve the case fairly or to save costs. The application was made under Order 31, rule 1 of the Rules of the Superior Courts. The judgment addresses this pre-trial application only; it does not decide the underlying claims about insurance cover or the conduct of the defence in earlier proceedings.
The plaintiffs, John Bourke and Francis O’Doherty, practising as Bourke and Company Solicitors, claim that Royal and Sun Alliance plc (RSA) should indemnify them for claims arising from professional negligence proceedings. They also allege that Crowley Millar, the solicitors jointly retained to defend those proceedings, failed in their duties to Bourke and Company and acted in RSA’s interests where the firms’ interests conflicted. Crowley Millar denies those allegations.
The dispute stems from the Betson proceedings, brought by investors over losses linked to investments in Mount Lucas property. Those proceedings included allegations concerning secret profits, misleading contracts and breaches of duty by Bourke and Company. The judgment recounts those claims as allegations; it does not determine their truth. The case was settled in January 2012 without Bourke and Company’s participation.
Bourke and O’Doherty contend that a conflict of interest arose before 4 February 2011, the date Crowley Millar says an actual conflict arose and the joint retainer ended. They sought questions about advice on indemnity, communications with RSA, meetings during the Betson trial and the proposed evidence of solicitor Jeremy Doyle. RSA had declined indemnity in May 2011, citing a policy exclusion concerning dishonesty or fraud.
The judge said the defendants had offered to admit the relevant documents under the Bula/Fyffes approach, which can allow documents to be used as prima facie evidence of their contents against the party that created them. He considered that many proposed questions focused selectively on extracts from documents and sought to draw conclusions from complex events before discovery was complete. Much of the information sought was also within the plaintiffs’ own knowledge, he said.
The timing and existence of any conflict remain issues for the eventual trial, where the parties’ evidence can be considered in context. The court refused leave to deliver every proposed interrogatory. It made no finding in this application on whether RSA owes an indemnity or whether Crowley Millar breached any duty.