The High Court has refused several requests by Perrigo Company plc to include terms in a court order about issues that were not decided at the hearing of its insurance dispute with Chubb and other insurers. It also rejected Chubb’s proposed wording on some of those issues.
In a supplementary judgment delivered on 9 May 2024, Mr Justice Twomey said the final order should accurately record what the court decided at the hearing and in its earlier judgment, rather than include terms requested by a party on matters that were not determined.
The underlying dispute concerned which insurance policy years covered alleged wrongful acts. In its principal judgment, the court held that the alleged Value of Offer Misrepresentation aggregated back to the 2014 policy. It held that the alleged Organic Growth and Omega Integration Misrepresentations did not aggregate back to that policy and attached instead to the 2015 policy.
The court also held that the alleged Tysabri Accounting, Collusive Pricing and Pricing Pressure Misrepresentations did not aggregate back to the 2014 policy. It declined to decide whether those acts should be allocated to the 2016 policy or aggregated back to the 2015 policy, saying neither issue had been determined at the principal hearing. It rejected wording proposed by both sides on those questions.
Perrigo asked the court to state that claims arising from a Shareholder Demand Letter did not aggregate back to the 2014 policy. The judge refused because the letter had not been raised at the principal hearing and was not addressed in the principal judgment. He relied on High Court decisions holding that a court should not add a term that may prejudice another party on an issue it did not hear, while acknowledging conflicting High Court authority.
The court also refused Perrigo’s request to declare that several alleged wrongful acts were treated as a “Single Claim” under the 2016 policy. That question had not been considered at the hearing. On the 2019 Derivative Complaint, the court said the order should record its finding that it was a “Securities Claim” under the relevant policy, without specifying a policy year.
The judgment further settled wording on the 2016 policy’s Specific Matters Exclusion: it did not prevent claims arising from the Tysabri Accounting and Collusive Pricing Misrepresentations, first made in the Amended Roofers Complaint, from attaching to that policy. The court declined to add terms saying those matters aggregated back to the 2015 policy.
Other requests were refused, including Perrigo’s proposed statement that Chubb’s requested declarations had been refused and a proposed recital about the Omega Arbitration Claim. The court said the order should be a definitive account of what was decided, not a record of observations on matters not heard. It hoped the parties could agree outstanding costs and directed that the case be listed for mention, with liberty to notify the Registrar if agreement made the listing unnecessary.